frrrrrirwwrw r I ■ itfwiMiiii'i iifli!««vvwvpiiBiPif I u iwii^r^itoMMiiini T in .2- i ^ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW CASES ON THE LAW OF TORTS SELECTED AND ANNOTATED By FRANCIS 11. BOHLEN Professor of Law, University of Pennsylvania IN TWO VOLUMES VOLUME II INDIANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS Copyright 1915 BY THE BOBBS-MERRILL COMPANY. !"'C. \^\li, /. V BOOK III. JUSTIFICATIONS, EXCUSES AND DEFENSES. Part I. ^Defense of Person or Property and the Assertion of Right in Respect Thereto. CHAPTER I. Self-Defense. (a) Defense of one's person from wrongful violence. CHAPLEYN OF GREYE'S INNE v. Court of Exchequer, 1400. Y. B. 2 Henry IV, 8, pi. 40. In an inquest by a chaplain of Greye's Inne for a battery done to him, etc. And the defendants had justified that the wrong which the plaintiff had was from his own assault. Markham. Although a man make an assault upon another, if he upon whom the assault is made can escape with his life, it is not lawful for him to beat the other, who made the assault, quod tota curia concessit. Cockayn, C. B. But I am not bound to wait till the other has given a blow, for perhaps it will come too late afterwards, quod conceditur.^ ^As late as 1319 it had been held in a plea of trespass for a battery that the plaintiff should recover his damages, and the defendant go to prison, though the beating given the plaintiff "was because of his own assault, since the defendant could not otherwise escape," Y. B. 12, Ed. II. 381 (Rolls Ed.). See also, accord Y. B. 21 & 22, Ed. I, 586 (1294). In Anon., Y. B. Z2> Henry VI. 18, pi. 10 (1455), it is held that son assault demesne is no plea to threats, unless the defendant has no other means of escape. So late as 1532, a statute, 24 Hen. 8, c. 5, providing that "a man killing a thief in self-defense shall not forfeit his goods" contains words indicating that many killings in self-defense did even then involve forfeiture of goods. It is probable that at a very early period one killing another in self-defense might purchase his pardon from the king and it is highly doubtful whether this pardon was ever refused, none the less it was required, nor probably did it, when obtained, protect the slayer from suit by the dead man's kin. It is certain that a pardon for killing by misadventure did not, and the two are treated throughout as governed by the same principles, as in the Statute of Gloucester (1278), in which it was provided that one killing another "must put himself upon the country" and if the jurors find the killing to be bv misadventure or in self-defense, "there on the report of the justices the king 891 671049 892 IOWA V. EVENSON. STATE OF IOWA r. EVENSON. Supreme Court of Iowa, 1904. 122 Iowa Reports, 88. Bishop, J. On the evening of December 15, 1902, the defend- ant, his brother, and two other young- men were together on a side street of the town of Joice, in Worth county. They had been drink- ing intoxicating hquor, had indulged in much profane and obscene language, and there had been some fighting between them. After the fight was over, they moved to the main street of the town, where they stopped in front of a store. Here they continued their loud and boisterous talk, the same being more or less interspersed with profanity. In this situation a crowd of about a dozen citizens ap- peared on the scene, armed with horsewhips, and some of them an- nounced to defendant and his companions that they would give them five minutes to get out of town. The defendant responded that "if they did not leave him alone he would lay some one cold.'' The citizens at once began using their whips on defendant and his companions, and when the whips were used up they resorted to their fists, one of the number also making use of a piece of board. De- fendant and his companions were forced back up the street by the onslaught made upon them, defending themselves meanwhile by the use of their fists. As they passed a platform scale standing on the sidewalk, defendant took therefrom the weight hanger, and, swinging it around his head, told the crowd to keep back. At this juncture one of the citizens, named Bilstead, seized the brother of the defendant about the body, and the two began to struggle, when defendant stepped up and struck Bilstead with the hanger, the blow being sufficient to fell Bilstead to the walk. The court, on its own motion, gave an instruction to the jury as follows : "The inhabitants of Joice had no right to drive the de- fendant and his party out of town by the use of force merely be- cause they were fighting or using bad language in the streets. If the defendant and his party had committed or were committing any public ofifense, the remedy which the law gave the inhabitants of Joice was to arrest them, and take them before a magistrate or peace officer. On the other hand, if the defendant and his party had rea- shall pardon if he will," see as to this subject Pollock and ]\Iaitland, History of the English Law, Vol. II, 476-481 ; Stephen, History of the Criminal Law, Vol. HI, pp. 36-40, and Robert's Case, Seldon Soc, Vol. I, Pleas of the Crown 70 (1203), Y. B. 21 Ed. HI, 17 pi. 22 (1348) and Fitz-Herbert Abr. Corone, 284 (1330). It is curious that though Blackstone recognizes that homicide in self-defense was excusable rather than justifiable and cites the act of 24 Hen. VIII, supra. Vol. IV, p. 184, he none the less speaks of self- defense as being "the primary law of nature" which "is not, neither can be, in fact taken away by the law of society," Vol. HI, 4. His influence is shown in man\' statements of the earlier American judges such as the following extract from the opinion of Wheeler, J. in Lander v. State, 12 Tex. 462 (1854), "It (self-defense) does not depend on any law of society. It is de- rived from a higher source, is coeval with man's natural being, and hence it is with truth and reason said that self-preservation is the first law of nature"; compare Grotius "De Jure Belli et Pads", Lib. Ill, Cap. I. IOWA V. EVENSON. 893 sonable opportunity to leave the scene in safety and avoid a. con- flict with the town people when they approached with whips and threatened the use of force, then the defendant and his party should have taken that course, and avoided a conflict. But if the town people assailed the defendant and his party, so that they had no reasonable opportunity, after their intentions were known,_to retire or retreat in safety, then they had the right to meet force with force, and defend themselves as in the case of any other assault." This instruction is complained of as error, the contention of counsel for appellant being that under the law the defendant, when threatened with an assault and battery, was not bound to retreat, but might stand his ground, and repel force with force, so long as he used only such force as was necessary. We think the doctrine thus contended for is sound. As applied to circumstances such as this record dis- closes, we do not understand it to be the law that one thus made the subject of attack is bound to retreat if there be time and opportunity to do so. In effect, the language of the instruction condemned was equivalent to saying to the jury that when one is assaulted, and the character thereof does not involve life or great bodily injury, the person assaulted, if he does not choose to stand and submit to a battery, must retreat if any way is open to him. Such is not the law. See, also, Gallagher v. State, 3 Minn. 270; Com. v. Drum, 58 Pa. 21 ; State v. Bartlett, 170 Mo. Sup. 658 (71 S. W. Rep. 148, 59 L. R. A. 756) ; State v. King, 104 Iowa, 724 ; McClain's Criminal Law. We do not overlook the many cases wherein it is held that one rnay not, under the plea of self-defense, justify the taking of human life, if it reasonably appears that the same could have been avoided by making use of an avenue of escape open to him.^ But the prin- ciple thus declared upon has no application to a case where, as in the case at bar, one is wrongfully assaulted, and repels force by the *See Dupree C J. in State v. Sherman, 16, R. I. 631 (1889), generally a person wrongfully assailed cannot justify killing his assailant in mere self- defense, if he can safely avoid it by retreating. Retreat is not always obli- gatory even to avoid killing; for if attack be made with deadly weapons or murderous or felonious intent, the assailed may stand his ground and if need be kill his assailant. Commonwealth v. Drum, 58 Pa. St. 1 (1868) ; Page v. State, 141 Ind. 236 (1894), and see Professor J. H. Beale, Homicide in Self- Defense, 3 Col. L. R. 526, pp. 537-545, and 16 Harv. L. R. 567, and the valu- able note to the case State v. Gardner, 2 L. R. A. (N. S.) 51 ct seq. In Moran v. P'icroy, 24 Ky. L. 2415 (1903), where the defendant shot the plaintiff, who had stepped towards him and raised and cocked his gun, it was held that the instruction asked, "that the defendant could only shoot if he had no apparently safe means of escape from the impending danger," had been frequently condemned by the Supreme Court of Kentucky. The right to kill without retreating if attacked in one's own house is clear. People v. Lewis, 117 Cal. 186 (1897). and see note to State v. Gardner, 2 L. R. A. (N. S.) 51. "If a man is in his house, and hears that such a one is coming to his house to beat him, he may well collect his friends and neighbors to help him in the defense of his person. But if one threatens to beat him if he goes to such a market or such other place, he may not lawfully collect his friends to protect him while going thither, because it is not necessary for him to go, and he may have his remedy by a bond to keep the peace. But one's house is his castle and defense where he may properly abide." — Note by Fineux C. J., Anon., Y. B. 21, Henry VII, 39, pi. 50 (1505). 894 GERMOLUS V. SAUSSER. use of like force. In the one case the law regards the liberty of the citizen to come and go as he pleases without molestation, save at the hands of the law, as the thing paramount. In the other case the law regards the temporary deprivation of the exercise of personal liberty on the part of one citizen as of less importance than is the life of another citizen, and this even though the latter is for the moment engaged in making an unlawful assault upon the former. Hence the injunction that a person assaulted must retreat, if he can do so in reasonable safety, before resorting to the extreme measure of taking the life of his assailant. Conceding, therefore, that the provocation for the assault upon defendant was great, still, being wrongful, and the defendant having the right to resist in defense of himself and of his brother, it fol- lows that the instruction given cannot be upheld. The judgment is reversed, and the cause remanded for a new trial. Reversed.- GERMOLUS V. SAUSSER. Supreme Court of Minnesota, 1901. 83 Minn. Rep. 141. Start, C. J. Action to recover damages for personal injuries sustained by the plaintiff by reason of an assault and battery perpe- trated upon him November 21, 1899, by the defendant. The de- fense was that the act was done in self-defense. Verdict for the plaintiff for $1,100, and the defendant appealed from an order de- nying his motion for a new trial. All of the assignments of error, which are well assigned, re- late to exceptions to the charge of the trial court to the jury. The evidence on the part of the plaintiff tended to show that the defend- ant made an unprovoked assault upon him, and struck him over the head with the heavy end of a whip stock, whereby the plaintiff was knocked senseless, and sustained serious injuries. The evi- dence also tends to show that there had been some words between the parties growing out of the fact that the plaintiff, who had been ploughing a field lying along the highway, had ploughed within the limits of the highway. The plaintiff had stopped his team, and was standing by the side of his plough, some ten rods from the highway, when the defendant struck him. The defendant's own testimony was to this effect: "See accord: State v. Sherman, 16 R. I. 631 (1889); Commonwealth v. Drum, 58 Pa. St. 1 (1868) ; Page v. State, 141 Ind. 236 (1894) ; Runyan v. Sinte, 57 Ind. 80 (1877) ; Moran v. Vicroy, 24 Ky. L. 2415 (1903). These are all criminal cases, but the principles governing the right of self-defense are the same in both criminal and civil actions, ThowMson v. Gray, 82 Ala. 291 (1886). Contra: Howland v. Dav, 56 Vt. 318 (1883) ; Armstrong v. Little, 4 Pen- new. 255 (Del. 1903) ; Woodruff J. in Keyes v. Devlin. 3 E. D. Smith 518 (N. Y. 1854), p. 524, and see Morton J. in Monize v. Begaso, 190 Mas; 87 (1906), pp. 88-89. GERMOLUS V. SAUSSER. 895 He (plaintiff) was ploughing and when he saw me driving on the highway he stopped his team, and called to me to come over, and repeated the call seven or eight times. I stopped my team, and asked him what he wanted. He said, "Come over this way." I got off the wagon, took my coat off, as it was too heavy (this was November 21st), and went over to the plaintiff, and asked him what he was calling to me for ; and he swung his whip around hitting me on the arm, and I jerked it out of his hand, and hit him with it, and then he let himself drop. I had to hit him to protect myself. T had the whip near the stock, and I swung it over and gave it to him. The trial court gave to the jury, with others, the instructions following : "Now, in this case, you are to consider, in the first place, wheth- er any element of self-defense enters into it. According to the testimony of the defendant himself, even if that were true, that the plaintiff struck at him with a whip stock, was it then necessary for him, to defend himself, to jerk it out of the plaintiff's hands, and then strike the plaintiff with it? He was only justified in doing that if it was necessary for his own protection, in his own self- defense." "There is no full defense made out in this case, unless the de- fendant has established by a preponderance of the evidence that the battery committed upon the plaintiff, as admitted, was necessary for his own self-protection, and to prevent the plaintiff from further battering him." It is the contention of the defendant that the first two instruc- tions given were erroneous, in that they, in effect, made his right of self-defense depend upon an actual necessity for the use of force in order to protect himself, instead of upon the then apparent ne- cessity of the situation, and withdrew from the jury the considera- tion of the question whether at the time the defendant entertained an honest and reasonable belief that it was necessary to use the force which he did use in order to protect himself. The rule as to self-defense is the same in civil and criminal actions. The rule is this : An act, otherwise criminal, is justifiable when it is done to protect the person committing it, or another whom he is bound to protect, from imminent personal injury, the act appearing reason- ably necessary to prevent the injury, nothing more being done than is reasonably necessary. G. S. 1894, § 6308. This does not require that the necessity for doing the act must be actual ; for it is sufficient if there is either a real or apparent necessity for so doing.^ But the mere belief of a person that it is nece.ssary to use force to pre- vent an injury to himself is not alone sufficient to make out a case of self-defense, for the facts as they appear to him at the time must be such as reasonably to justify such belief. - ^Shorter v. People, 2 N. Y. 193 (1849); Goodall v. State, 1 Ore. 333 (1861) ; Mtirrav v. Commonwealth, 79 Pa. St. 311 (1875) ; Enright v. People, 155 111. 32 (1895). "" Accord: Beck v. Minn. Union R. Co., 95 Minn. 73 (1905) ; New Orleans 896 MORRIS V. PLATT. It follows that the instructions in this case were not strictly accurate, but the error was without prejudice; for, upon the de- fendant's own testimony, we hold as a matter of law that he was not justified in beating the plaintiff. To hold otherwise would be a re- proach to the administration of justice; for, accepting the defend- ant's own statement of what occurred, there was neither a real nor an apparent necessity for knocking the plaintiff down after he had been disarmed. Nor were the facts, viewed from any standpoint, such as reasonably to justify the defendant in believing that there was any such necessity. Order affirmed. MORRIS V. PLATT. Supreme Court of Errors, Connecticut, 1864. 32 Conn. Rep., 75. Butler, J. It appears from the evidence offered on the trial that the defendant wounded the plaintiff in two places by two shots fired from a pistol ; and from the nature of the weapon, and the other conceded circumstances, the jury were authorized to find, and doubtless did find, that the wounds were inflicted with a design to take the life of the plaintiff. It was incumbent on the defendant & N. E. R. Co. v. J opes, 142 U. S. 18 (1891) ; Higgins v. Minaghan, 78 Wis. 602 { 1891), p. 610; Baker v. Gausin, 76 Ind. 317. In State v. Bryson, 2 Winston 86 (N. Car. 1864), Manly J. says, "A right to act in self-defense does not depend upon the special state of mind of the subject of inquiry. He is judged by the rules which are applicable to men whose nerves are in an ordinarily sound and healthy state ; and whatever may be his personal apprehension, if he has not reasonable ground to support them, he will not be protected by the principle of self-defense. Th-^ normal condition of the human passions and faculties must be regarded in establish- ing rules for the government of human conduct. The question, then, in such cases as the present, is not what were the apprehensions of the defendant, but what these ought to have been, when measured by a standard derived from observation of men of ordinary firmness and reflection." But see Pat- terson v. Standling, 91 111. App. 671 (1900), where it was held that it was error to instruct the jury that the circumstances must be such as to induce the mind of a courageous man to believe that he must strike to defend hirn- self, it being only required that they are sufficient to induce such a belief in the mind of a reasonably prudent man. The fear which will justify the use of force in self-defense must be the fear of imminent danger unless the blow be struck. One is not justified in shooting on sight a person who has threatened to kill him even though he has good reason to believe that an effort will be made to carry the threat into execution at some future time, Rippy v. State, 2 Head 217 (Tenn. 1858) ; Lander v. State, 12 Tex. 462 (1854); but see Bohanno7i v. Commonwealth, 8 Bush 481 (Ky. 1871) ; and this is so though the person assaulted is at the time of the assault armed, Hulse v. Tollman, 49 111. App. 490 (1853). There must be something done by the person assaulted apparently indicating an attempt to attack the defendant, or, where there are threats, demonstrations appropriate to carry such threats into execution, Stoneman v. Commonwealth, 25 Graft. 887 (Va. 1874). Threats known to the defendant, however, are im- portant, as determining whether he is justified in believing the conduct of the person assailed was an attempt or demonstration, State v. Evans, 65 Mo. 574 (1877). Where there are antecedent threats or where the circumstances are such as to indicate an apparent intent on the part of the person assailed MORRIS V. PLATT. 897 to justify or excuse their infliction. He in the first place attempted to justify them, and the obvious attempt to take life which aggra- \-ated them, by offering evidence to prove that he was assailed by the plaintiff and others in a manner which indicated a design to take his life, and "that he was in great bodily peril and in danger of losing his life by means of the attack," and that he fired the pistol "to pro- tect his Hfe and his body from extreme bodily injury." If these facts were proved and found true, they fully justified the attempt of the defendant to take the life of the plaintifif as matter of law, and entitled the defendant to a verdict in his favor. And so the court were bound to tell the jury, if properly requested to do so by the defendant. The plaintiff', in answer to the defense made, denied that he was an assailant, and claimed that he was a bystander merely, and re- quested the court to charge the jury, in substance, that if they so found, he was entitled to recover, although they should also find the defendant to have been lawfully defending himself against his assailants, and the injury to the plaintiff* accidental. That request of the plaintiff embodies the unqualified proposition that a man lawfully exercising the right of self-defense, is liable to third persons for any and all unintentional, accidental injurious consequences which may happen to them, and the court so charged the jury. Al- though there are one or two old cases and some dicta which seem to sustain it, that proposition is not law. It is well settled in this court that a man is not liable, in an action of trespass on the case, for any unintentional consequential injury resulting from a lawful act, where neither negligence nor folly can be imputed to him, and that the burden of proving the neghgence or folly, v/here the act is lawful, is upon the plaintiff. Burroughs V. Housatonic R. R. Co., 15 Conn. 124. Is the rule different in tres- pass, where the injury is the immediate and direct, though unde- signed and accidental, result of a lawful act? If the defendant had been in the act of firing the pistol at an assailant in lawful self-defense, and a flash of lightning had blinded him at the instant and diverted his aim, or an earthquake had shaken him and produced the same result, or if his aim was perfect but a sudden puff of wind had diverted it or the ball after it had passed from the pistol, and in either case the ball by reason of the diversion had hit the plaintiff, the accident would have been so eft'ected in part by the uncontrollable and unexpected operations of nature as to be inevitable or absolutely unavoidable ; and there is no prin- ciple or authority which would authorize a recovery by the plaintiff'. And, in the second place, if while in the act of firing the pistol lawfully at an assailant, the defendant was stricken, or the pistol to assault tlie defendant, such equivocal conduct as putting the hand in the pocket, Keep v. Quallman, 68 Wis. 451 (1887) ; or upon the hip, Courvoisier V. Raymond, 23 Colo. 113 (1896) ; or a sudden onrush of a person believed to be one who had previously threatened violence, Crabtree v. Dawson, 119 Ky. 148 (1904), have been held sufficient to justify a reasonable belief that the defendant was in imminent danger. 898 MORRIS V. PLATT. seized or stricken by another assailant, so that Its aim was unex- pectedly and uncontrollably diverted towards the plaintiff; or if while in the act of firmg with a correct aim, the assailant suddenly and unexpectedly stepped aside, and the ball passing over the spot hit the plaintiff, who till then was invisible and his presence un- known to the defendant ; or if the pistol was fired in other respects with all the care which the exigencies of the case required or the circumstances permitted, the accident was what has been correctly termed ''unavoidable under the circumstances," and whether the de- fendant should in such case be hoiden liable or not is the question we have in hand. For, in the third place, if the act of firing the pistol was not lawful or was an act which the defendant was not required by any necessity or duty to perform, and was attended by possible danger to third persons which required of him more than ordinary circumspection and care, as if he had been firing at a mark merely ; or if the act though strictly lawful and necessary was done with wantonness, negligence or folly, then, although the wounding was unintentional and accidental, it is conceded, and un- doubtedly true, that the defendant would be liable. In this case the rule of law claimed by the plaintiff, and given by the court to the jury, authorized them to find a verdict for the plaintiff if they found the accident to belong to the second class, and to have been ''unavoidable under the circumstances." We have seen that if the injury had been consequential and the form of action case, the defendant would not have been liable, and the ques- tion returns, whether he can and should be bolden liable because the injury was direct and immediate and the form of action is tres- pass. I think not, whether the decision of the question be made upon principle or governed by authority. We advise that a new trial be granted. In this opinion the other judges concurred. '^Accord: Paxton v. Boyer, 67 111. 132 (1873). So where the defendant intentionally strikes the plaintiff believing him to be a third person from whom he has such reason to apprehend danger as to justify striking in self defense, he is not liable for the mistake in identity so long as his belief was honest and justifiable under the circumstances, Leavett's Case {circa 1639) cited in Cook's Case Cro. Car. 538. The burden of proving that the mistake was negligent lies upon the plaintiff, Courvoisier v. Raymond, 23 Colo. 113 (1896), a riotous gang had broken into the defendant's house and having been expelled by him continued throwing stones, etc., at it, the plaintiff, a police officer, coming upon the scene came towards the defendant, the defendant testified that as the plaintiff approached he put his hand to his hip pocket the defendant thereupon shot him. thinking that he was one of the riotous gang: in Crabtree v. Dawson, 119 Ky. 148 (1904), the defendant had ejected an intoxicated man from a room in his building in which a pay dance was given, the intruder threatened to return and "clean out the whole thing," the plaintiff, who had been invited to attend a dance given by the defendant's daughter and others in an adjacent room, for that purpose came up the stairs which were dimly lighted, the defendant mistaking him for the intruder, struck him over the head with a musket, knocking him down the stairs. In the latter case the court held that the burden of proving that the mistake was negligent rested upon the plaintiff, but that the defendant was bound to exercise the highest care practicable to ascertain whether the per.son whom he struck was the one from whom he had reason to apprehend danger. OGDEN V. CLAYCOMB. 899 OGDEN V. CLAYCOMB. Supreme Court of Illinois, 1869. 52 III. Rep., 365. Lawrence, J. This was an action for assault and battery, in which the jury found for the defendant. The verdict was against the evidence, and there was error in the instructions for the de- fendant. From the first instruction the jury would understand, if the plaintiff advanced upon the defendant in a threatening man- ner, for the purpose of fighting, and a fight followed, the plaintiff could not recover, even though the defendant had far exceeded the just bounds of self-defense, and inflicted an inhuman beating, pro- vided he desisted as soon as the plaintiff asked him to do so. The rule is, on the contrary, that no more violence can be used than a reasonable man would, under the circumstances, regard necessary to his defense.^ If he strikes a blow not necessary to his defense, or after all danger is past,- or by way of revenge,^ he is guilty of an assault and battery. The third instruction tells the jury, among other things, that the plaintiff, in order to recover, should have been guilty of no provocation. This is error. It is wholly immaterial what language he may have used,^ so far as the right to maintain an action is concerned, and even if he went beyond words, and com- "■Cockroft V. Smith, 2 Salk. 642 (1705), an action of assault and battery and mayhem, Holt C. J. saying, that "for every assault he did not think it reasonable a man should be banged with a cudgel"; Thomason v. Gray, 82 Ala. 291 (1886). the jury may consider the relative size of the parties in de- termining whether the use of weapons was necessary ; see Edzvards v. Leazitt, 46 Vt. 126 (1873) ; U'alsov v. Hastings, 1 Pennew. 47 (Del. 1897) ; IVcUs v. Emjlchart 118 111. App. 217 (1905); Tyson v. Booth, \m Mass. 258 (1868), defendant fired his shotgun at boys who were throwing snowballs at him; Z:7/7o« V. i?;-ow«, 2 Wend. 497 (N. Y. 1829;. The defendant must show that "the force used by him was appropriate in kind and suitable in degree," Rogers v. IVaite, 44 Maine 275 (1857) ; O'Leary v. Roivau, 31 Mo. 117 (I860). "Ordinarily the question how far a party may properly go in self-defense i^ a question for the jury, not to be judged of loo nicely, but with due regard to the infirmity of human impulses and passions," Morton J., in Monize v. Begaso, 190 ]\Iass. 87 (1906), p. 89; but the defendant must have both an honest and reasonable belief that the force he employs is necessary for his defense, Kent v. Cole, 84 Mich. 579 (189n. 'Hudson V. Crane, Noy 115 (1606); Watson v. Hastings, 1 Pennew. 47 (Del. 1897) ; Beavers v. Bowen, 26 Ky. L. 291 (1904) ; Monice v. Begaso, 190 Mass. 87 (1906). ^Hetrick v. Crouch, 141 Mich. 649 (1905) ; Brouster v. Fox, 117 Mo. App. 711 (1906) ; Hanson v. Europe & N. A. R. Co., 62 Maine 84 (1873) ; Monice V. Begaso, 190 Mass. 87 (1906). * Mere words, no matter how abusive, cannot justifv an assault, Soraen- frci V. Schroeder, 75 111. 397 (1885); Crosbv v. Humphreys, 59 Minn. 92 (1894); Murray v Bo\ne, 42 Mo. 472 (1868); Willev v. Cari>entcr, 64 Vt. 212 (1892) ; but see Tuckers v. Walters, 78 Ga. 232 (1886) ; Cider v. Witzel, 82 111. 322 (1876). As to whether a defendant who has provoked an assault can justifv force in defending himself, see Hulse v. Tollman, 49 111. App. 490 (1893) ; Thomason v. Gray, 82 Ala. 291 (1886) ; Morris Hotel Co. \: Henley, 145 Ala. 678 (1906) ; but see Beavers v. Bowen, 26 Ky. L. 291 (1904). QOO V. FAKENHAM. mitted a technical assault, the acts of the defendant must still be limited to a reasonable self-defense.^ All the instructions for the defendant are pervaded to a greater or less degree by these errors, and should have been refused. The judgment must be reversed and the cause remanded. Judgment reversed. (b) Defense of others from vv^rongful violence. V. FAKENHAM. Court of Common Pleas, 1470. Y. B. 9 Edw. IV, 48, pi 4. In trespass for battery against Fakenham, he says that the plaintiff made an assault upon one W. F., son of the said defendant, and the defendant saw this and commanded one J., his servant, to go to his son and defend him, and keep him from damage, by force of which he went to him and assaulted the said son (plaintiff), and so the wrong which the plaintiff had w^as of the assault which he made upon the said W. F., and in defense of him, &c. Catesby. This is not to the purpose ; for where a man assaults me, if I beat him in my defense, I shall be excused ; but if he assaults a stranger, I cannot beat him in his defense, for I have nothing to do with him, but I can part them, &c. Moyle and Needham, J J. If I see a man assaulting another, I can part them and put my hand upon him who made the assault, and hold him so that he cannot come at the other, &c. ; but they said that I cannot draw my sword and beat the one who made the assault, &c. ; but it is otherwise if one assaults my master, I can beat him in defense of my master, &c. Choke, J. That is true, for the servant is held and bound to the master, and so he can for his mistress, &c. But the master cannot do as much for his servant, for he is not so held to do for his servant, &c.^ And then Gcnncy says ut supra that the plaintiff* assaulted the said son of the defendant then being present, &c., and he commanded such an one, his servant, to go to his son and part them, and keep his son without damage, by reason whereof he went to them and parted them, and put his hand upon this plaintiff, so that he should not approach the said son, &c., which is the same battery, &c.^ ^ See-McNatt v. McRae, 117 Ga. 898 (1903). ^The right of a master to use force in defense of his servant is recog- nized in Seaman v. Cuppledick, Owen 150 (Circa 1607), on the ground that otherwise the master would lose his services, but see Leward v. Basely, 1 Ld. Raym. 62 (169.5), where it is said in such case the master has no right to defend his servant, since he has an action per quod scrvitium amisit; and Yelverton J., citing Y. B. 19 Henry VI, 60a, "A lord may justify in defense of his villein for he is his inheritance," per Crook J. in the same case. So in Anon., Y. B. 19 Hen. VI 31, pi. 59 (1440), a husband's right to defend his wife is put on a similar ground that she is his chattel. *The wife's right to defend her husband is recognized in Leward v. Basely, 1 Ld. Ravm. 62 (1695). A child mav defend its parents. Beavers v. Bowen, 26 Ky. L' 291 (1904) ; and Obier v. Neal, 1 Houston 449 (Del. 1855). In Higgins v. Minaghan, 78 Wis. 602 (1891), it was held that a husband and MORRISON X'. COMMONWEALTH. 9^^ OBIER V. NEAL. Superior Court of the State of Delazvare, 1855. 1 Houston, 449. Action for an assault and battery. Joseph Neal assaulted Obier with a large stick, uplifted with both hands, and drawn back in a threatening manner. Obier seized a small one, which he did not raise, but held in his hand by his side, when Neal struck him a hard blow on the top of his head with his stick, and then Obier returned the blow with his stick but with less violence, on the side of Neal's head. They then dropped their sticks and closed with each other, when William Neal seized the plaintiff by the right arm, and while he thus held him, William H. Neal caught up the stick which Joseph Neal had dropped, and struck the plaintiff Obier a severe blow over the head with it. William H. Neal pleaded a justification of his assault and batterv upon the plaintiff in defense of his father, Joseph Neal ; and upon this evidence the counsel on both sides in- voked the charge of the court as to the sufficiency of his plea of justification under the circumstances. Gilpin, Ch. J., charged the jury: That to sustain the plea it must appear that the father was first assailed by the plaintiff, and was resisting his attack, when the son interfered to defend him. For if the father was the aggressor and committed the first assault, and was consequently a trespasser from the beginning of the com- bat, and was not himself justifiable in the assault and battery com- mitted by him upon the plaintiff, then the plea of the son could not avail him, for he became a co-trespasser with his father, and was liable with him in the action. But if the father was not the ag- gressor, and a trespasser himself, from the beginning of the fight, and was only repelling the attack of the plaintiff in his own defense, when the son interposed, as he might lawfully do in such a case in defense of his parent, then he would not be liable; provided he used only such force as the danger to which his father was exposed at the time rendered necessary for his defense and security. If, however, he exceeded that degree of force, even under such cir- cumstances, he would still be liable. Verdict for the plaintiff.^ MORRISON V. COMMONWEALTH. Kentucky Court of Appeals, 1903. 24 Ky. L., 2493. HoBSON, J. So, the case comes to this: Did Morrison, when he saw Alex Dean committing an assault on his sister, and pushmg father was justified in shooting at a party who were giving a "charivari" out- side his house, if he could not otherwise cause them to desist their noise and tumult which was terrifying his wife and children to an extent that affected their health and endangered their lives. ^Accord: Jones v. Fortune, 128 111. 518 (1889), master defending servant; Beavers v. Bowen, 26 Ky. L. 291 ( 1904) , son coming to defense of his father ; Br ouster v. Fox, 117 Mo. App. 711 (1906), semble. 902 . MORRISON V. COMMONWEALTH. or Striking her against the house, have a right to intervene between the brother and sister for his protection from a simple battery ? In 1 Bishop on Criminal Law, §877, it is said: "The doctrine here is that whatever one may do for himself he may do for another. The common case, indeed, is where a father, son, brother, husband, serv- ant, or the like, protects by the stronger arm the feebler. But a guest in a house may defend the house, or the neighbors of the occupant may assemble for its defense ; and, on the whole, though distinctions have been taken and doubts expressed, the better view plainly is that one may do for another whatever the other may do for himself." The statement of the law, as applied to simple bat- teries and breaches of the peace, is broader than it is usually put in the authorities. Thus, in 3 Bl. Com. 3, it is said : "The defense of one's self or the mutual or reciprocal defense of such as stand in relations of husband and wife, parent and child, master and serv- ant. In these cases, if the party himself, or any of these, his re- lations, be forcibly attacked in his person or property, it is lawful for him to repel force by force ; and the breach of the peace which happens is chargeable upon him only who began the affray." In a note to this it is added : "When a person does not stand in either of these relations, he cannot justify an interference on behalf of the party injured, but merely as an indifferent person to preserve the peace." See, to the same effect, 2 Am. & Eng. Enc. Law, p. 981 ; 2 Roberson, Criminal Law, §453. When a felony is apparently about to be committed, as where there is apparent danger of loss of life by the person assailed or of great bodily harm to him, a different rule prevails, and there any third person may lawfully intervene for his protection, using such means for his defense as the person assaulted himself may lawfully use. But where the assault is not felonious, and the per- son intervening does not stand in any relations to the one assaulted except out of the common-law rule, then he who intervenes can act only for the preservation of the peace. He cannot come into the difficulty for the purpose of taking the place of the person as- sailed, and continuing the fight. This is the common-law rule, as we understand the authorities, and we cannot depart from it or extend it. It is conceded on all hands that Morrison ran down on tiptoe to where Alex Dean and his sister were, some 90 feet away. If, when he got there, he at once stabbed Dean, in the back, as stated by the witnesses for the commonwealth, he was the aggressor. The instruction of the court, which submitted to the jury the question whether Morrison believed, or had reasonable grounds to believe, himself in danger of death or great bodily harm at the hands of Dean, when he stabbed him, was more favorable to IMorrison than the law warranted, as the court did not submit to the jury the ques- tion whether Morrison was, the aggressor. Morrison knew that the illicit relations between him and Ida Dean were the foundation of the animosity of Alex Dean to him. He also knew that this was the cause of the quarrel between the brother and sister. With this MC ILVOY V. COCKRAN. 9O3 knowledge he ran on tiptoe down to where they were, armed wath a dirk, and if, as he says, he caught Alex Dean by the shoulder and shoved them apart, saying to him, "You can't beat her where I am," his interference was not as an indifferent person to preserve the peace, for his first act was to commit a battery on Alex Dean by taking him by the shoulder, and this was followed up by a declara- tion vv'hich he could not but know, under all the circumstances, would make Alex Dean regard him as an assailant. To hold that he intervened, under the evidence, as an indifferent person to preserve the peace, would be to give no real effect to the common-law rule allowing greater rights to parent and child, husband and wife, master and servant, or the like, than to other persons in cases of simple batteries or breaches of the peace. According to his own testimony, the manner of his approach, his conduct on reaching Alex Dean, and his declaration to him, under the circumstances, were not those of one bent on peace, but of one proposing to champion the woman and fight her battles for her. He was therefore the ag- gressor, and the court did not err in refusing to admit the proof as to the bad character of Alex Dean or his previous threats ; and this evidence, if admitted, could not have been of material service to the defendant under the view of the law which we have indicated, for the jury might have inferred that w^hen he interfered with the knowledge of the previous threats and the character of Dean he anticipated the result that ensued. The verdict of the jury finding him guilty of manslaughter, and fixing its punishment at eleven years in the penitentiary, seems to have been due to their accepting the version of the transaction as given by the witnesses for the commonwealth, and their believing that Morrison acted in sudden heat on seeing the woman assailed by her brother. Judgment affirmed.^ (c) Defense of one's property from wrongful intrusion. McILVOY V. COCKRAN. Court of Appeals of Kentucky, 1820. 2 A. K. Marsh Ky. Rep., 271. Owsley, J. This is an appeal from a judgment recovered by Cockran in an action of trespass, assault and battery, brought by him against Mcllvoy. (The declaration in substance charged that the defendant as- saulted and beat the plaintiff with "sticks, clubs, fists, hands and feet." The defendant pleaded, first, son assault demesne; and sec- ond, that he was lawfully in possession of a certain close which he ^The members of a party of friends (or social party) have no special right to interfere in defense of their associates different from that of third parties generally, Br ouster v. Fox, 117 Mo. App. 711 (1906), which also holds that the right of one to intervene when he believes that another's life is in imminent danger is limited as the right to strike in defense of a father is limited in Obier v. Neal, 1 Houston 449 (Del. 1855). 904 ^iC ILN'OV V. COCKRAN. had enclosed with a fence and that the plaintiff with force and arms and against his, the defendant's will, broke down some of the posts and rails and w-as attempting to break down others, when the de- fendant, being upon his said close, did defend his possession thereof and resisted the said attempt of the said plaintiff and in so doing did assault and beat the plaintiff, as mentioned in the declaration, so that if any injury happened to the plaintiff, it happened of his wrong and in the lawful and necessary defense of the defendant's close, posts, and rails.) ^ During the progress of the trial before the jury, and after the evidence was closed on both sides, the counsel of Alcllvoy moved the court to instruct the jury, that if, from the evidence, they be- lieved Mcllvoy had supported the truth of his second plea, they ought to find for him ; but the court overruled the motion, and in- structed the jury that it was not every trespass that would justify so enormous a battery, and that if the jury believed, from the evi- dence, the plea was true, it ought to go in mitigation of damages. The jury, after retiring from the bar to consult of their ver- dict, returned a verdict of $1,000 in favor of Cockran : whereupon the counsel of Mcllvoy moved the court for a new trial, on the grounds — ist, of the verdict being against evidence: and, 2d. for an error in the court's refusal to instruct as asked for by the counsel of JMcIlvoy, and in giving the instructions it did to the jury. The motion was, however, overruled, and judgment rendered in conformity with the verdict. The examination of the sufficiency of the plea divides itself properly into two inquiries: — ist. As its sufficiency to bar any part of the cause of action, and if any, 2d, how much? In responding to these inquiries, it must be borne in mind that the declaration contains a charge of assault, battery and zvounding: and the plea alleges the injury to have been occasioned by Mcllvoy (the defendant in the circuit court) in defense of a close of which he was possessed ; and in resisting the attempt of Cockran forcibly to enter and demolish the fence thereto appertaining. It is not denied but that an assault and battery may be justi- fied in the defense of the possession of either real or personal prop- erty;- but it is contended that previous to the use of force there ^The pleadings, which are set out at length in the opinion, are much condensed. Mn Laurences cases, 2 Rolle. Abr. 548 (1609), it was held that "one may justify the battery of another who will enter mv house, for it is mv castle"; and in Anon., Y. B. 21 Henry VII, 39. pi. SO (1505), it is said by Fineux C. J., that "if a man is in his house and hears that such a one is coming to his house to beat him, he may well collect his friends and neighbors to help him in the defense of his person." WTiile more force may perhaps be used in defense of one's house or home, see Anon., supra, and Ncivcome v. Russell, 133 Ky. 29 (1909), the right to resist intrusion or to eject an intruder is not confined to the protection of one's home, but may be exercised by one in possession of any real property, as by an occupant of a business office. Morgan v. Durfee, 69 Mo. 469 (1879) ; Townsend v. Briggs, 99 Cal. 481 (1893). So a church, which has lawfully discharged its pastor, may use the force necessary to remove him from the MC ILVOV Z'. COCKRAN. 9O5 should be a request to depart, and that the injury should not be justified in the mode adopted by ]\IcIlvoy, but that he ought to have pleaded by way of nioliter maims imposuit. That moliter maniis is the proper mode to pleading of many actions brought for injuries arising in defense of the possession of property, will not be controverted ; but that it is the only admissible mode in every possible case, we apprehend, cannot be maintained. There are certainly cases where force may be employed in de- fense of possession, without a previous request to depart. Thus, in the case of Green v, Goddard, 2 Salk. 641, the court said, in cases of actual force, as breaking open a gate or door, it is lawful to oppose force with force ; and if one breaks down a gate, or comes into a close with force and arms, the possessor need not re- quest him to depart, but may lay hands upon him immediately, for it is but returning violence with violence :^ so if one comes forcibly and takes away my goods, he may be opposed immediately, for there is no time to make a request : but, say the court, where one enters the close without actual force, although his entry will be con- strued a force in lazv, there must be a request to depart before the possessor can lay hands upon him and turn him out.* This case from Salkeld, whilst it discriminates between those cases where force may or may not be employed without a request to depart, illustrates conclusively the cases where moliter inanus should properly be pleaded, as well as those where such a plea as that adopted by Mcllvoy may be adopted. It shows that where pulpit if he thereafter insists on occupying it, Conway v. Carpenter, 80 Hun 428 (N. Y. 1894). The right is available against one seeking to enter under claim of adverse title; McCarty v. Fremont, 23 Cal. 196 (1863) ; Drew v. Comstock, 57 Mich. 176 (1885); O'Donnell v. Mclntyre, 118 N. Y. 156 (1890), or who seeks to enter without the owner's consent to get his goods which are on the premises, Newkirk v. Sabler, 9 Barb. 652 (N. Y. 1850). The right to use force in defense of the lawful possession of chattels was recognized in an Anonymous case, Y. B., 19 Henry VI, 31, pi. 59 (1440), though Fortescue, as counsel for the plaintiff, argued that the defendant had a sufficient remedy in the action of trespass de bonis asportatis; and Anon., Y. B., 9 Edw. IV, 28, pi. 42 (1469). ^ So, when after notice not to come upon the defendant's premises, the plaintiff springs on the land in a threatening manner, the defendant may law- fully resist the intrusion, using no unnecessary force, Harrison v. Harrison, 43 Vt. 417 (1871). * Tullay V. Reed, 1 C. & P. 6 (1823) ; State v. Elliott, 11 N. H. 540 (1841), sentble; Scribner v. Beach, 4 Dcnio 448 (N. Y. 1847); Ayers v. Birtch. 35 Mich. 501 (1877). So it is held in Thompson v. Berry, 1 Cranch. C. C 45 (U. S. C. C. 1801), to be a battery to push a trespasser from one's land with- out first requesting him to leave, and a mere antecedent notice not to tres- pass will not dispense with the necessity of endeavoring by peaceful means to prevent the trespass before resorting to force, Howell v. Hopkins, 8 Ky. L. 527 (1886), compare Harrison v. Harrison, 43 Vt. 417 (1871). So in defense of chattels, Scribner v. Beach. 4 Denio 448 (N. Y. 1847), and see Anon., Y. B., 9 Edw. IV, 28, pi. 42 (1469). "If a man will take my goods I may lay hands on him and prevent him, and if he will not desist, I may beat him, rather than let him carry them off." So one who has entered upon a revocable license, if he insist upon re- maining after the license is revoked and he is requested to leave, becomes Qo6 MC ILVOY V. COCKRAN. possession has been invaded by implied force only, injuries in de- fense of the possession ought to be justified by way of moliter maniis; but where the possession is attacked by actual force, as no request to desist is necessary, the injury may be justified by plead- ing the facts which authorize the employment of force in defense of the possession. We are aware that, in some reported cases, judges are said to have used expressions negativing the idea of any justification in defense of possession, other than by a plea of moliter maniis; but in using those expressions, we apprehend, the court must have had in view injuries resulting in the defense of possession invaded, not by actual, but by constructive force. It was upon this distinction between actual and constructive force, and this only, and by applying the plea of moliter manus to the latter, and not the former, that the reported cases can be recon- ciled with each other ; and, understanding the court, when speaking on the subject of that plea, to have had in mind the cases of con- structive force, there is no difficulty in reconciling the authorities. But whilst each plea is admissible when applied to its appro- priate case, in neither mode can every species of injuries be justi- fied, exclusively in defense of possession. Where the possession is invaded by force in law, and the intruder refuses to depart, or where it is invaded by actual force^ force may be employed by the possessor; and as every forcible laying of hands upon another is, in legal contemplation, a battery, it follows that, in either mode of pleading, an assault and battery may be justified. Notwithstanding, however, an assault and battery may be justi- fied in either mode of pleading, we apprehend a zvounding cannot be : for it is well settled that in defense of possession a wounding a trespasser and may be ejected as such. Woodman v. Howell, 45 111. 367 (1867) ; Townsend v. Briggs, 99 Cal. 481 (1893). So one who has by his misconduct forfeited his right to be on the prem- ises may, if he refuse to leave, be forcibly removed, as where one disturbs a meeting, religious, political, social or sporting, Wall v. Lee, 34 N. Y. 141 (1865), and cases cited therein; or where a scholar in a public school is tur- bulent and refractory. Peck v. Smith, 41 Conn. 442 (1874) ; and see Smith v. Slociim, 62 111. 354 (1872). Nor is the motive of the defendant in excluding the plaintiff from his premises or in revoking his license material, Slinger- land V. Gillispie, 70 N. J. L. 720 (1904) ; Townsend v. Briggs, 99 Cal. 481 (1893) ; Brothers v. Morris, 49 Vt. 460 (1877). If the intruder refuse to leave when requested to do so. the owner may turn him out, using no unnecessary force. Weaver v. Bush, 8 T. R. 78 (1798) ; McDermott v. Kennedy, 1 Harr. 143 (Del. 1883) ; Lichtenwallner v. Lanbach, 105 Pa. St. 366 (1884); Commonwealth v. Clark, 2 Mete. 23 (Mass. 1840); Coleman v. New York &c. R. Co., 106 Mass. 160 (1870) ; Drew v. Comstock, 57 M\ch. 176 (1885) ; Watrous v. Steel, 4 Vt. 629 (1829), and the intruder has no right to resist expulsion so that sufficient force may be used to overcome his violent resistance thereto, Coleman v. New York &c. R. Co., 106 Mass. 160 (1870). The owner is liable if he uses excessive force to eject a tres- passer, Coleman v. New York &c. R. Co., 106 Mass. 160 (1870) ; Hunt v. Caskey. 60 Atl. 42 (N. J. 1905) ; Brebach v. Johnson, 62 111. App. 131 (1895) ; Weaver v. Bush, 8 T. R. 78 (1798). in which it is said that in such case the plaintiff should new assign, but see to the effect that no new assignment is necessary, Simpson v. Morris, 4 Taunton, 821 (1813). MC ILVOY V. COCKRAN. 907 cannot be justified. Com. Dig., title, Pleader, 3 m, 16, 17.^ But although a wounding cannot be justified barely in defense of pos- session, yet if, in attempting to remove the intruder, or prevent his forcible entry, he should commit an assault upon the person of the possessor, or his family, and the owner should, in defense of him- self or family, wound him, the wounding may, no doubt, be justi- fied;*' but then, as the personal assault would form, the grounds of justification, the plea should set out, specifically, the assault in justi- fication. From what has been said, it will be perceived that the plea of Mcllvoy, as it contains allegations of actual force on the part of Cockran, imports a defense to the assault and battery charged in the declaration ;' but as it contains no allegation of a personal as- sault by Cockran, it furnishes no justification to the wounding stated in the declaration. It results, therefore, that if the plea was proven to be true, the jury, sworn to try also on other issues going to the whole cause of action, could not regularly have found a gen- eral verdict for jNIcIlvoy, and, consequently, the court properly re- fused the instructions to the jury asked by Mcllvoy. The only remaining question necessary to be noticed involves an inquiry into the decision of the court in refusing a new trial. It will be recollected the motion was made on the grounds of the verdict being against evidence, and on the grounds of the court having erred in their instruction to the jury. From what has already been observed, it will be perceived that there is no error in the decision of the court upon the motion to instruct. And with respect to the evidence it need only be remarked, that it appears to have been of a character peculiarly proper for the decision of the jury, and not such as will justify the interposition of this court. The judgment must be affirmed, with cost and damages.^ ^Accord: Wounding in defense of possession of land: Gregory v. Hill, 8 T. R. 299 (1799) ; Ever ton v. Estgate, 24 Nebr. 235 (1888) ; and Newcome V. Russell, 133 Ky. 29 (1909), in which it is intimated that even wounding may- be justified if necessary for the defense of one's home. Wounding in defense of possession of chattels : Scribner v. Beach, 4 Denio 448 (N. Y. 1847) ; Gates v. Lounsbury, 20 Johns. 427 (N. Y. 1823). Nor can the use of dangerous weapons be justified, Hinchcliffe's case, 1 Lew. 161 (1823) ; Everton v. Estgate, 24 Nebr. 235 (1888) ; nor the throwing of stones or other missiles which, after they leave the thrower's hand, can not be guided, Cole v. Mamider, 2 Rolle. Abr. 548 (1635) ; but see Talmage V. Smith, 101 ]Mich. 370 (1883), where it was held that while an owner of property was not justified in throwing a stick at boys trespassing in his shed intending to hit them, he was justified in throwing it at them intending only to frighten them, though in fact one of the boys was struck. Nor can the use of force be justified unless it is appropriate to rid the land of the intruder, so to throw down a ladder upon which a trespasser was standing held not to be justified since "it only left him on the ground at the foot of the ladder, instead o£ being upon it," Collins v. Renison, Saver 138 (1754). 'See Robinson v. Hawkins, 4 T. B. Mon. 134 (Ky. 1826) ; Fossbinder v. Svitak, 16 Nebr. 499 (1884). 'See Weaver v. Bush, 8 T. R. 78 (1798). "An occupier of land is not bound to impound trespassing cattle or in- Q08 LIFE V. BLACKWELDER. LIFE V. BLACKWELDER. Appellate Courts of Illinois, 1886. 25 ///. App. Rep., 119. Conger^ P. J. This was an action originally brought by ap- pellant against appellee before a justice of the peace, for injuries inflicted by appellee upon appellant's dog. A trial was had before a jury, resulting in a verdict and judgment for appellee. Upon ap- peal to the circuit court and trial before a jury, the result was the same. The parties to the suit are farmers, residing about one mile apart. Appellant is the owner of seven or eight hounds which he keeps for hunting purposes. At the time of the alleged injury about twenty acres of appellee's land was in growing wheat, the land having been rented by appellee to one Nussman. It was claimed by appellee, and some evidence was offered tending to sup- port such claim, that in the early spring and during the time the wheat was maturing, the dogs of appellant were in the habit of running through this wheat, chasing rabbits and other game, unril they had trampled down and destroyed eighteen or twenty bushels of the growing wheat, and had several times prior to the shooting been driven out with clubs. animate chattels wrongfully placed or allowed to remain upon his premises, or coming accidentally thereon, but he may drive out the cattle, TyrringhamS case 4 Coke 36 b (1583), even into the highway, and this without liability for their subsequent straying, Cory v. Little, 6 N. H. 213 (1813;, or remove them to the other's premises, Grier v. Ward, 23 Ga. 145 (1857) ; Knapp v. Hortiuuj, 103 Pa. St. 400 (1893) ; Ryan v. State, 5 Ind. App. 396 (1894), using reason- able care to do no unnecessary harm. So when the plaintitY has hitched his horse to a shade tree, the owner of the tree, who, to prevent the horse from gnawing it, as horses are notoriously prone to do, may unhitch it and remove it and rehitch it to a nearby hitching post, is not liable in trespass de boms asportatis, though he would be liable in case if he had not used reasonable care in rehitching it, Gilman v. Emery, 54 Maine 460 (1867). He may not set ferocious dogs upon trespassing cattle, Amick v. O Mara, 6 Black 253 (Ind. 1842), but unless the circumstances make it unduly danger- ous. Mclntire v. Plaisted, 57 N. H. 606 (1876), he may drive them out with ordinary farm dogs, Mitten v. Faudrye, Popham, 161 (1624) ; Wood v. La- Rue, 9 Mich. 158 (1881) ; Dazis v. Campbell, 23 Vt. 236 (1851). In removing inanimate chattels the occupier of the land should remove them to some adjacent place for the owner's use. Crane v. Mason, Wright 333 (Ohio 1853), and may not destroy them or expose them to unnecessary risk of injury, Gricr v. Ward, 23 Ga. 145 (1857), though if the chattels are on his premises by their owner's wrong, he may regard his own interest and convenience rather than the chattels and need put himself to less trouble and expense to preserve them, Almy v. Grinnell, 12 Mete. 53 (Mass. 1846) ; with which compare Gricr v. Ward, ante. Where the goods come on the land ac- cidentally or are otherwise thereon without their owner's fault, they must be removed with the least possible injury to them and inconvenience to their owner Berry v. Carle, 3 Greenl. 269 (Maine. 1825), and tosdick v. Collins, 1 Stark 138" (1816) ; the laUer case holding that the plaintiff's goods having been left on the land by the consent of the vendor of the defendant, and he on taking possession having refused to allow the plaintiff to remove them, he could not justify removing them himself to a distance. LIFE V. ELACKWELDER. 9O9 The circumstances of the shooting are thus detailed by the ap- pellee in his testimony : "Last June I shot one of plaintiff's hounds while he was running through my wheat ; plaintiff's hounds had been accustomed to run in said lield all season, and were damaging it by knocking it down. ]\Ir. Xussman, my tenant, told me I must keep the dogs out of the wheat (to which last statement defendant objected and excepted). I saw them in there several times, and heard them at other times ; I never saw more than three or four hounds in there at any one time, and generally only saw two. There were eighteen or twenty acres of wheat in the piece. I heard a couple of hounds in the wheat and took my gun, loaded with No. 6 shot, and went into the wheat, and when the dogs came within about forty yards of me I shot one of them, a black and white fellow. I shot the dog when he was coming straight toward me, because he was in the wheat field and I could not keep them out any other way. The dogs had knocked down enough wheat to make twenty bushels of wheat ; they were running rabbits in the wheat, and made roads in it." The court, at the instance of appellee, gave the jury the follow- ing instructions: "The court instructs the jury that the defendant had the right to use such means as were necessary for the purpose of putting the dogs out of his field, and if in so doing it resulted in the mutilation of the animal in question it would not be a violation of law, and if the jury believe, from the evidence, that the defendant used such means as a reasonable man would use, all the circumstances con- sidered, to exclude the dogs from his field and his wheat, and did no more harm to the dog than was necessary, under all the circum- stances proved in the case, then the jury will find for the defendant." It is insisted that these instructions are erroneous ; that however appropriate they might be, where one was defending his animate property from destruction, they are the law as applied to the pro- tection of inanimate property. Counsel state the proposition in the following words : "Ap- pellee had not the right to exercise the same force to protect his wheat field, inanimate property, which he might have been justified in using had appellant's dog been found worrying and seemingly about to destroy a valuable domestic animal, animate property, be- longing to him." We fail to see the propriety of the distinction made by counsel. '^ Every man has a right to defend and protect his property of every kind and character from injury or destruction, provided he ^ Compare also, Ford v. Taggarf, 4 Tex. 492 (1849) : Champion v. Vincent, 20 Tex. 811 (1858), and Ames, J., in Clark v. Kelilter, 107 Mass. 406 (1871). to the effect that neither mules, hogs, cattle or other "animals reclaimed and used for burden, husbandry or food" can be killed when found trespassing, even to preserve the crops from destruction, with Williams v. Dixon, 65 N. Car. 416 (1871), where it was held that the defendant might kill an ass which had thrown down his cow and was stamping on it ; and see Canefox v. Cren- shaw, 24 Mo. 199 (1857); and Anderson v. Smith, 7 III. App. 354 (1880), p 359. 9IO LIFE r. LLACKWELDER. uses only such means as are reasonably necessary under the cir- cumstances. And the reasonableness or unreasonableness of the means used is always a question of fact for the jury. Thus, in Kline v. Kline, 6 Pa. St. 318, when a dog was killed in the act of getting fish down from the wall where they had been hung to dry, the court say: "And his property, whether meat or fish, in his cellar, in his kitchen or in his yard, it was lawful for him to preserve against any man's dog; and if he could not otherwise protect it, he might kill the dog when caught on his premises in the act of destruction. Whether he could not preserve his property and the customary use of it without destroying the animal commit- ting depredations, when found in the act, ought to have been sub- mitted to the jury by the court, as a question within their province to decide." In the case at bar appellee had a right to protect his wheat from trespassing dogs, and if, in the opinion of the jury, it could not be done by any reasonable means except by those used by ap- pellee,^ and that such means were, under the circumstances reason- able and proper, he would not be liable to appellant for the injury resulting therefrom. In determining the question of the reasonableness of resorting to such extreme measure to protect property, the value of the animal doing the mischief, the disturbance and mischief likely to be wrought,^ the probability of less severe measures being successful and the necessity for immediate action, are all elements to be con- sidered in reaching a conclusion.^ -Accord: Anderson v. Smith, 7 111. App. 354 (1880) ; Nesbett v. IVilbur, 177 Mass. 200 (1900) ; and see Canefox v. Crenshaw, 24 Mo. 199 (1857), scm- ble. In Simmonds v. Holmes, 61 Conn. 1 (1891), in which the relative value of the animal killed and the propertj' threatened or attacked by it was held to be immaterial, the defendant justified under a statute giving him the abso- lute right to kill animals running at large and injuring or threatening injury to property. ^Compare the language of Holmes, C. J., in Nesbett v. Wilbur, 177 IMass. 200(1900). *In the following cases the dog being in the very act of attacking, injur- ing or consuming the defendant's property, his killing was held justifiable; King v. Kline (6 Pa. St. 318), cited in the principal case; Leonard v. Wilkins, 9 Johns. 233 (N. Y. 1812), the dog had one of the defendant's fowls in his mouth and was running away with it when shot; Canefox v. Crenshaw, 24 Mo. 199 (1875), buffalo bull shot in the act of destroying the defendant's property and polluting his herd of cattle; Williams v. Dixon, 65 N. Car. 416 (1871). In Wright v. Ramscot, 1 Saunders 84 (1678), a plea setting forth that the defendant stabbed and killed the plaintiff's mastiff because it was attacking the dog of the defendant's mistress, was bad, it not alleging that he could not otherwise separate them; accord: Hinckley v. Emerson, 4 Cowen 351 (N. Y. 1825), dog making slight and more or less playful attacks on de- fendant's hogs, the attack was over and the dog under its master's charge when killed— but see Boecher v. Lutz, 13 Daly 28 (N. Y. 1885) — ; and in Livermore v. Batchelder, 141 Mass. 179 (1886), it was held that a finding that the defendant had reasonable cause to believe that the dog was about to attack and kill his chickens did not justify killing the dog, in the absence of a finding that he had reasonable cause to believe that it was necessary to kill the dog to keep him from killing the chickens; compare Nesbett v. Wilbur, LIFE V. ELACKWELDER. QII As was said in Anderson v. Smith, 7 111. App. 359, "There must be an apparent necessity for the defense, honestly believed to be real, and then the acts of defense must in themselves be reason- able. Acts beyond reason are excessive. The consequences of the proposed act to the aggressor should be considered in connection with the consequences of non-action to the party defending, whether the defense be made in favor of person or property." We think the instructions fairly submitted the law to the jury. Appellant's third instruction, which told the jury that if appellee shot the dog for no other reason than that the dog had been accus- tomed to run through his wheat, they should find for appellant, announced a correct principle of law, and had the evidence justified it, should have been given. But the evidence was undisputed that the dog was at the time of being shot trespassing upon the wheat, and appellee's uncon- tradicted statement being that he shot "because he was in the wheat- field and he could not keep him out any other way," it can hardly be presumed that the jury would indulge the presumption that ap- pellee shot the dog, for the reason given in the instruction. If the refusing of the instruction was error, we do not think it worked any injury to appellant. Neither do we think the remarks of the court in passing upon the evidence prejudiced the appellant. The judgment of the Circuit Court will be affirmed. Judgment affirmed.^ 177 Mass. 200 (1900) ; and see Ulery v. Jones, 81 111. 403 (1876) ; and Catie- fox v. Crenshaw, 24 Mo. 199 (1857) ; contra, Parrott v. Hartsfield, 4 Dev. & Bat. 110 (N. Car. 1838), which makes a curious distinction between the kill- ing of dogs for the protection of animals in a wild state, and killing of dogs for the protection of sheep, cattle and other domesticated and useful animals. But compare Ten Ho pen v. Walker, 96 Mich. 236 (1893), Vv'here it was held that a dog could not be shot even if about to destroy the defendant's plants, "because the law affords a remedy for the destruction of property caused by the beasts of another," with Throne v. Mead, 122 Mich. 272> (1899) ; and Mc- Chesney v. Wilson, 132 Mich. 252 (1903), and see Ames J. in Clark v. Keli- her, 107 Mass. 406 (1871). In the following cases the killing was held unjustifiable, the animal not being caught in the act, Jatison v. Brown, 1 Camp. 41 (1807), the dog having dropped the fowl an instant before he was shot ; Wells v. Head, 4 C. & P. 568 (1831), dog had left the field where he had worried defendant's sheep; Vere v. Lord Cawdor, 11 East 568 (1809). dog shot chasing game; but com- pare Protheroe v. Mathews, 5 C. & P. 581 (1833); Barrington v. Turner, 3 Lev. 28 (1697) ; Wadhurst v. Damme, Cro. Jac. 45 (1604), where the dog was chasing game in a "park" or "warren"; and Deane v. Clayton, 7 Taunton 489 (1817) ; and see Johnson v. Patterson, 14 Conn. 1 (1840) ; Sosat v. State, 2 Ind. App. 586 (1891) ; and Williams v. Dixon, 65 N. Car. 416 (1871). ^Accord: McChesney v. Wilson, 132 Mich. 252 (1903); Marshall v. Blackshire, 44 Iowa 475 (1876). An animal, whether cattle, dogs or fowl, cannot be killed merely because it is trespassing and cannot be kept out in any other way, Conner v. Champ- neys, Taunton Assizes 1814, cited in argument of Deane v. Clayton, 2 Marshall (C. P.) 684; Ten Hopen v. Walker, 96 Mich. 236 (1893) ; Clark v. Keliher, 107 Mass. 406 (1871) ; Matthews v. Fiestal, 2 E. D. Smith, 90 (N. Y. 1853), even though its conduct while upon the land is highly annoying; Bowers v. Horan, 93 Mich. 420 (1899) ; or is in company with other dogs which had previously worried cattle, Barret v. Utley, 12 Bush 399 (Ky. 1896) ; nor can 912 ALDRICH V. WRIGHT. ALDRICH V. WRIGHT. In the Supreme Judicial Court of New Hampshire, 1873. 53 N. H., 398. Debt, by Arthur R. Aldrich against Wells Wright, to recover the penalties prescribed by Sec. 2, Chap. 251, General Statutes, for killing minks. The defendant admitted the killing of four minks, but alleged, in justification, that the animals were at the time pur- suing his geese. The only evidence in the case was the testimony of George W. Blood, who, in common with the defendant, owned a small goose- pond. The dividing line between the premises of the witness and the defendant was the brook running into this pond ; and the houses occupied by the witness and the defendant Vv^ere on the opposite sides of the brook, and but a few rods distant therefrom. The witness testified as follows: "I stood in my dooryard ; heard the geese cackling; I came out on to a little knoll; I saw the four, minks swimming towards the geese ; some of the geese had then got on to the shore of the pond and some of them were in the water ; the minks were from one to three rods distant from the geese; some of the geese within a rod of the minks, who were one old mink and three young ones, but all about the same size. As soon as the minks saw me they stopped pursuing the geese, and ran out upon a little island and there stopped. At the same time I came out the de- fendant also came out with his gun ; he came out near the end of the causeway that is laid across the lower end of the pond, and fired at the minks on the island, killing them all at one shot, the minks were all on the island when he fired ; the defendant carried the minks off to his house ; the geese were six old ones, and eight young ones about half grown ; geese had run in the pond two or three sumrners ; never knew of any mink chasing any geese there before or since; don't know whether minks are accustomed to kill geese or not." A verdict was taken for the plaintiff by consent, subject to the defendant's exception to a pro forma ruling that the defendant would not be justified in killing the minks if the geese were not in imminent danger, and could have been protected either by driving away the geese, or frightening or driving ofif the minks. Ray, Drew and Heywood, for the defendant. G. A. Bingham and Aldrich, for the plaintiff. poison be put out to kill trespassing dogs, 53 :Mo. App. 517 (1893) ; and see Townsend v. Walthen, 9 East. 277 (1808). But if dogs habitually assemble on the defendant's premises and by their fightmg and howlmg make sleep impos- sible in his house and so become a nuisance, he may, after notice to their owners to restrain them, shoot them if he cannot otherwise keep them away. Brill v. Flagler, 23 Wend. 354 (N. Y. 1840) ; Hubbard v. Preston, 90 Miclr 221 (1892), though a dog may not be killed, merely because it has tne habit of barking at vehicles in the street, Jacquay v. Hartzell, 1 Ind. App. 500 (18J1). Contra: Ten Hopen v. Walker, 96 Mich. 236 (1893), semble, in which, as in Brent v. Kimball, 60 111. 211 (1871), the right to kill a trespassing dog was said to be restricted to the statutory rights to kill a dog worrying or chasing sheep or when it is mad, or has been recently bitten by a mad Jog, or ALDRICir V. WRIGHT. 9I3 Doe, J. In this case the question is, not of the real danger merely, but also of the danger, on reasonable grounds, really be- lieved by the defendant to exist. The reputation of the minks, their pursuit of the geese, and the alarm and retreat of the latter, may have shown apparent dan- ger, when the real character of the pursuers may have created no actual danger. Mr. Blood, a near neighbor of the defendant, did not know whether minks are accustomed to kill geese or not. The defendant may have been equally uninstructed. And it was not his duty to postpone the defense of his property until, neglecting his usual occupations and incurring expense, he could examine zoologi- cal authorities, consult experts, or take the opinion of the county, on the question whether his "half-grown" geese were actually en- dangered, in life or limb, by the incursion of "one old mink and three young ones," "all about the same size." The conclusion of the investigation might be too late. And if the question were found to be a debatable and doubtful one, it would not be his duty to settle it by trial at his own risk. The plaintiff's doctrine destroys the right of defense which exists in a case of merely apparent danger. The plaintiff's claim that the defendant is liable if the geese were not in imminent danger, taken in the sense for which the plaintiff' contends, and the sense in which both parties, at the trial, probably understood it, cannot be sustained. The term "imminent" does not describe the proximity of the danger by any rule of mechanical measurement ; and, in its broad and popular signification, admitting a large degree of latitude and' adaptation to circumstances, it may be properly used in this case. But it has been so much used in cases of defense against a human aggressor, and, in that class of cases, has, for peculiar reasons, acquired a legal meaning so special, restricted, and technical, that, if used in a case like the present, it should be accompanied by some explanation of the general comparative and relative sense in which it is used. It is probable that the parties understood that, by the doctrine of imminent danger, the defendant was liable unless the geese would, in a few moments, have been killed by the minks but for the de- fendant's shot. The doctrine, asserted in that form, would be er- roneous. It was for the jury to say, considering the defendant's valuable property in the geese, the absence of absolute property in the minks, their character, whether harmless or dangerous, the probability of their renewing their pursuit if he had gone about hi:i usual business and left the geese to their fate, the sufficiency anrl practicabihty of other kinds of defense, — considernig all the ma: terial elements of the question, it was for the jury to say whether the danger was so imminent as to make the defendant's shot rea- sonably necessary in point of time. If, but for the shot, some o' the geese, continuing to resort as usual to the pond, apparenliv would have been killed by these minks, within a period quite in- is ferocious and attacks persons, but see the criticism of this case in Anderso.i V. Smith,? Ill App. 354 (1880). QI4 ALDRICII V. WRIGHT. definite, and if other precautionary measures of a re^.-onabie kinds as measured by consequences, would have been inettectual, the aan- ger was imminent enough to justify the destruction of the minks for the protection of property. Neither was there a remedy in guarding the fowls day and night. The profit accruing from six old geese and eight young ones would not pay the expense of constant convoy. His property might as well be consumed by the minks as by the cost of a guard. But, however small the value of the property, he had a right to protect it by means reasonably necessary ; reasonable necessity in- cluded a consideration of economy : and eternal vigilance, as the price of success in his limited anserine business, was not reasonable. According to the precedent of charging the watch to bid any one stand, and, if he will not stand, to let him go, the defendant should have been thankful if the minks, when challenged, had gone off; but their halt at the island showed no inclination to go any consid- erable distance. What practicable method w^as there of protecting the geese in the peaceful possession and enjoyment of the pond? Without a resort to firearms, his situation would seem to have been full of embarrassment. The invasion of his premises was annoy- ing ; the legal perplexities, with which it is now claimed he was en- vironed, had they been understood by him at the time, would have been distressing. If (as the jury would probably find the fact to be) it apparently was reasonably necessary for him to kill the minks in order to pre- vent their doing mischief to his property, the authorities do not show that he transcended the right of defense. The claim that the defendant was liable if the geese could have been protected by driving them away from the minks, cannot be sustained. Requiring the defendant to drive away the minks if he could, is an admission that he had a right to drive them away, and that they had no right to remain on his premises without his consent. But requiring him, if he could not drive them away from the geese, to drive the geese away from them, is a practical denial of his right to keep geese in his own pond or on his own land, if he could only keep them there by killing minks. It amounts to this : it being impracticable to permanently eject the assailants, he must banish the assailed ; and, the raising of geese being impossible, the raising of minks is compulsory. A freeholder, permitted to fire blank cartridges only to cover the endless retreat of his poultry before these marauders, and obliged to suffer such an enemy to ravage his lands and waters with boldness generated by impunity, is a result of turning the fact of the reasonable necessity of retreating to the wall before a human assailant into a universal rule of law. This rule practically compels the defendant to bring his poultry to the block prematurely, and to abandon an important branch of agri- cultural industry. His right of protecting his fowls is merely his right of exterminating them. To hold, in this case, that the geese should have been driven ANON. 915 away from their home, would be equivalent to holding that they should have been killed. The doctrine of retreat would leave them a right to nothing but life in some place inaccessible to minks, where life might be unremunerative and burdensome. But that doctrine being irrelevant when the aggressor is not shielded by the inviolabil- ity of the human form and the sacred quality of human life, the geese were not bound to retreat. As against the minks, they had a right, not only to live, but to live where the defendant chose, on his soil and pond, and to enjoy such food, drink, and sanitary privileges as they found there, unmolested by these vermin, in a state of tran- quillity conducive to their profitable nurture. And it was for the jury to say, not whether he could have driven them away from the minks, but whether his shot was reasonably necessary for the pro- tection of his property, considering what adequate and economical means of permanent protection were available, the legal valuation of vermin life, and the disturbance of mischief likely to be wrought upon his real and personal estate if any other than a sanguinary de- fense were adopted. Verdict set aside.^ (d) Intrusion upon or destruction of property required by individual or public necessity. Rede, C. J. in Anon., Y. B. 21 Hen. VII, 27 PI. 5 (1506). When my cattle are damage feasant in another's land, I can- not enter to drive them out,^ and still it is a good deed to drive them out, lest they do more damage. But it is otherwise when a stranger drives my horse into another's close, where it does dam- ^ Accord: Marshall v. Blackshire, 44 Iowa 475 (1876), the dog had chased the defendant's chickens and driven them from their feed and, on being driven away, had returned, whereupon the defendant shot him, it was held not to be error to charge that it was not necessary in order to justify the de- fendant in kiUing the dog that the dog should have been, at the instant of the shooting in the act of worrying and killing the defendant's chickens, if, when Icilled, his conduct was such as to create in the defendant's mind a reasonable apprehension of continued and renewed worrying and killing; Dunning v. Bird, 24 111. App. 270 (1887), defendant shot the dog, not knowing who owned it, as it was coming out of his smoke house ; and see Boecher v. Lutz, 13 Daly 28 (N. Y. 1885). In Parrott v. Hartsfield, 4 Dev. & Bat. 110 (N. Car. 1838), it is held that "a sheep stealing dog found lurking about or roaming over a man's land where sheep are kept, incurs the penalty of death" and may be shot on sight ; and see Throne v. Mead, 122 Mich. 273 (1899), in which it is held that such a killing is justifiable though not strictly within the statute giving the right to kill dogs found chasing sheep; and Miller v. State, 5 Ga. App. 463 (1908), where it was held that a sheep killing dog might be killed even upon its owner's premises by the son of one whose sheep it had killed. Contra: Johnson v. Patterson, 14 Conn. 1 (1840), defendant scattered poisoned meat about to kill the plaintiff's chickens which had habitually trespassed upon the defendant's premises and destroyed his seeds thereon. ^ For, says Kingsmill, J., in the same case, "I ought first to tender amends." See Gaff v. Kitts, 15 Wend. 550 (N. Y. 1836), where it was held that the 9l6 PLOOF Z\ PUTXAM. age; in such case I may justify an entry to drive it out, since the damage done was the fault of another. Choke, C. J., in Anon., Y. B. 6 Edw. IV, 7, PI. 18. If the thorns of a great tree had fallen on his land by the force of the wind, in this case he might come in to get them, be- cause the falling was not his act but the act of the wind.^ U^ (] ' PLOOF V. PUTNAM. Supreme Court of Vermont, 1908. 81 Vermont Reports, 471. MuNSON, J. It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defend- ant's servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children ; that there then arose a sud- den and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction ; that to save these from destruction or injury the plaintiff was com- pelled to, and did, moor the sloop to defendant's dock ; that the defendant by his servant unmoored the sloop, whereupon it was driven upon the shore by the tempest, without the plaintiff's fault ; and that the sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into the lake and upon the shore receiving injuries. This claim is set forth in two counts : one in trespass, charg- ing that the defendant by his servant with force and arms wilfully and designedly unmoored the sloop ; the other in case, alleging that it was the duty of the defendant by his servant to permit the plain- tiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the de- fendant by his servant, in disregard of this duty, negligently, care- lessly and wrongfully unmoored the sloop. Both counts are de- murred to generally. There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and inter- ferences with personal property that would otherwise have been owner of a swarm of bees, which have made their hive on another's land, may not enter to reclaim them. ^Accord: Popham C. J. in Mitten v. Faudrye, Popham 161 (1682), "if 3 tree grow in a hedge and the fruit fall into another's land, the owner may fetch it in the other's land." So it was held in Hoffman v. Armstrong, 48 N. Y. 201 (1872). that an owner of land on which a fruit tree stands, whose branches overhang his neighbor's land, may enter the latter to take the fruit. But if the owner cut the thorns and they fall on the adjoinmg land, then it is held in the principal case that he may not enter and take them. PLOOF V. PUTNAM. 917 trespasses. A reference to a few of these will be sufficient to illus- trate the doctrine. In Miller v. Faudrye, Poph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were tres- passing upon his land, and that he with a little dog chased them out, and that as soon as the sheep were off his land he called in the dog. It was argued that, although the defendant might law- fully drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that as the defendant had done his best to recall the dog trespass would not lie. In trespass of cattle taken in A, defendant pleaded that he was seized of C, and found the cattle there damage feasant, and chased them towards the pound, and that they escaped from him and went into A, and he presently retook them ; and this was held a good plea. 21 Edw. IV, 64; Vin. Ab. Trespass, H. 34 pi. 19. If one have a way over the land of another for his beasts to pass, and tl7e beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a. pi. I. A traveler on a highway, who finds it obstructed from a sud- den and temporary cause, may pass upon the adjoining land with- out becoming a trespasser, because of the necessity. Henn's Case, W. Jones, 296; Campbell v. Race, 7 Cush. 408, 54 Am. Dec. 728; Hvde V, Jamaica, 27 Vt. 443 (459) ; Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 81 1.^ An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27 ; Vin. Abr. Trespass, H. a.4, pi. 24, K. a. pi. 3.^ In Proctor v. 'Aliter, when as in Holmes v. Seeley, 19 Wend. 507 (N. Y, 1838); and Williams v. Safford, 7 Barb. 309 (N. Y. 1849), the way is private, whether by grant, see Bnllard v. Harrison, 4 M. & S. 387 (1815), or prescription, Taylor v. IVhitchead, 2 Dougl. 745 (1781). Notwithstanding the doubt expressed by Buller J. in Taylor v. Whitehead, 2 Dougl. 745 (1781), and Nelson C. J. in Holmes v. Seeley, 19 Wend. 107 (N. Y. 1838), it was held in Williams v. Safford, 7 Barb. 309 (N. Y. 1849), that there is no distinction between a right of way by express grant and one of necessity, such right of way fol- lowing as an incident of the grant of property to which there is no other access. When once assigned by the grantor or selected by the grantee, "it stands on the same footing as any other way by grant and both parties are bound by it, the grantor not to obstruct it, and the grantee to be confined to it." If the owner of the land over which another has a right of way ob- structs it, it is held in Haley v. Colcord, 59 N. H. 7 (1879), that the owner of the way may go out of the way to pass around the obstruction, contra, Williams v. Safford, 7 Barb. 309 (N. Y. 1849), holding his only remedy to be to abate the nuisance or an action of damages. When the public have a right to use a path but subject to the right of the owner of the land to plow it. the public have no right to go extra viavi to escape the obstruction or bad condition of the nath caused by such plow- ing, .4rnoW y. Holbrook, L. R. 8 Q. B. 96 (1873). 'Aliter, if the goods of the landowner are imperilled by the wrongful act of the defendant, or a third person, against whom their owner might giS PLOOF V. PUTNAM. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff's beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore and was in danger of being carried off by the sea ; and it was held no trespass. See also Dumvich v. S terry, i B. & Ad. 831. This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pi. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, the defendant was sued for taking and carrying have an action, so in Anon., Y. B. 21 Hen. VII, 27, pi. 5, (1505), it was held that one who entered a field and gathered corn set apart for tithes, and carried them to the barn of the plaintiff, the person entitled to them could not justify his conduct because the tithes were in danger of destruc- tion by cattle in the field. The right of any citizen to enter the property of another in order to extinguish a fire, thespread of which appears reasonably probable, is recog- nized in Metallic Compression Casting Co. v. Fitchbiirg R. R., 109 Mass. 277 (1873) ; Hyde Park v. Gay, 120 .Mass. 589 (1876). The right to destroy another's property to prevent the spread of fire, was held in Y. B., 9 Edw. IV, 35, (1469), to exist in a neighbor whose prop- erty was threatened when the fire was due to the owner's negligence. Such a right is recognized in all citizens to prevent the spread of fire whatever its origin, when necessary for the common good, Maleverer v. Spinke, Dyer 32 (1537), Saltpeter Case, 12 Coke, 13 (1606) ; Bishop v. Mayor of Macon, 7 Ga. 200 (1849) ; Surocco v. Geary, 3 Cal. 69 (1853) ; Field v. Des Moines, 39 Iowa 575 (1874); McDonald v. Red Wing, 13 Minn. 38 (1868), semble; Respublica v. Sparhawk, 1 Dall. 357 (1788), semble. The right is in the citizens as individuals and not in the state under its power of eminent domain, but while it is sometimes exercised by them as such, Conwell v. Emrie, 2 Ind. 35 (1850), it is more usually exercised by local authorities. Dewey v. White, M. & M. 56 (1827) ; Surocco v. Geary, 3 Cal. 69 (1853) ; Bishop v. Mayor, 7 Ga. 200 (1849), Field v. Des Moines, 39 Iowa 575 (1874), McDonald v. Red Wing, 13 Minn. 38 (1868). Its exer- cise is sometimes committed by statute to the discretion of the municipal authorities; as to the effect of such statutes, see American Printing Co. v. Lawrence, 23 N. J. L. 9 (N. J. 1847) ; Mayor v. Lord, 17 Wend. 285, 18 Wend 126 (N. Y. 1837), holding that they are not in exercise of the power of eminent domain, and Hale v. Lawrence, 1 Zab. 714 (N. J. 1848), holding that they are. In Bishop v. Mayor, 7 Ga. 200 (1849), it is held that the person whose property is destroyed is by common law entitled to compensation from those whose property is thus preserved, see Mou^els ^ase. cited in principal case. The right of destruction is not Timited to~the prevention of the spread of fire, it exists whenever there is a great and imminent and far-reaching danger to persons or property; so in Dewey v. White, M. & M. 56 (1827), firemen were held justified in tearing down ruinous chimneys, which were in danger of falling into the adjacent highway, in Newcomb v. Tisdale, 62 Cal. 575 (1881), it was held that a levee might be cut to prevent a general inundation, though the plaintiff's land was thereby flooded : and see Meeker V Van Rensselaer, 15 Wend. 397 (N. Y. 1836), and Fields v. Stokley, 99 Pa. St. 306 (1882), and in Harwan v. Lynchburg, Zi Grat. Z7 (Va. 1880), it was held that the police might destroy whiskey at a time when the town was full of disbanded troops; but see Reed v. Bias, 8 Watts & Serg. 189 (Pa. 1844), where it was held that the tearing down of a building which excited the wrath of a mob was not a justifiable means of avoiding mob violence. PLOOF V. PUTNAM. 919 away the plaintiff's casket and its contents. It appeared that the ferryman of Gravesend took forty-seven passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being put upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff's casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff's casket out of the barge; that if the ferryman surcharge the barge the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss, to safeguard the life of man. It is clear that an entry upon the land of another may be justi- fied by necessity, and that the declaration before us discloses a ne- cessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant's dock to save his sloop and the people in it. The aver- ment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock ; and the de- tails of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstances, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge. The defendant insists that the counts are defective in that- they fail to show that the servant, in casting off the rope, was act- ing within the scope of his employment. It is said that the allega- tion that the island and dock were in charge of the servant does not imply authority to do an unlawful act ; and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any gen- eral authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allega- tion is that the defendant did this by his servant. The words "wil- fully and designedly" in one count, and "negligently, carelessly and wrongfully" in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment. 13 Ency. PI. & Pr. 922 ; Vocgeli v. P'lckel Marble, etc., Co., 49 Mo. App. 643; Wabash Ry. Co. v. Savage, no Ind. 156, 9 N. E. 85. 920 NEWTON V. IIARLAND. See also, Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125. Judgment affirmed and cause remanded.^ i.^ CHAPTER II. Self Help. ^ (a) Re-entry upon real property. NEWTON V. HARLAND. Court of Common Pleas, 1840. 1 Manning & Granger's Reports, 644. Trespass for assault and battery. The plaintiff and his wife declare for an assault on the wife and forcing her into the street, and the defendants justify by reason of the landlord (one of the defendants) being in the lawful pos- session of the house and the wife of the tenant "being unlawfully therein and disturbing him in his enjoyment thereof, whereupon they gently put out the wife, who had refused when requested to depart from the same." ^ The cause was tried before Parke B. at the Summer assizes for the county of York, 1837. The facts were not very clearly ascer- tained at this trial, but as they ultimately appeared at the subsequent trials they were as follows: The plaintiff', A. Newton, on the ist of September 1836, hired of the defendant Harland, for the period of six months, several rooms in a house which Harland occupied at Studley, near Ripon, in the county of York. The six months ex- pired on the 1st of March 1837, ^n^ the rent not having been paid, Harland on the following day, and the other defendant Bailey as his assistant, distrained the goods of the plaintiff A. Newton, and Mrs. Newton having locked the doors of the rooms, and refused to give up the keys, Harland employed a blacksmith to pick the locks. In the evening of the same day Mrs. Newton was requested to quit the premises, and having refused, Harland again entered the rooms, accompanied by four or five persons, and compelled Mrs. Newton and her children and servants to leave the apartments, Harland himself laying hold of Mrs. Newton's arm, and leading her out. Upon the facts as proved at the first trial, Parke B. told the y. lake Erie Traus^i^uJj0iM^.CQ^ 109 Minn. 456 (1910), it was uciu uidi uiuu^TTliic^ru^B-'oradock might not be an actionable tres- V pass, if no damage resulted,;yet the defendant deliberately using another's v^ property for his own protection, without the owner's permission, must an ^ pwer for any damage which he does. ^ The statement of the pleadings is taken from the second opinion of Tin dal, C. J. NEWTON V. HARLAND. 921 jury that the second plea was made out, and directed them to find the issue raised by that plea for the defendants. The jury having, in pursuance of this direction, found their verdict on the second issue for the defendants. TiNDAL, C. J. It seems to me that the cause must go down again to a new trial, in order that the facts with respect to the time and the manner of the entry by the defendants may be more pre- cisely ascertained, and the matter placed in such a shape as will en- able either party, if so advised, to obtain the judgment of a court of error upon the point. The cause was again tried before Alderson B. at the York- shire Summ.er assizes, 1838. The facts having been given in evi- dence, and Hillary v. Gay, 6 C. & P. 284, cited on the part of the plaintiffs, the learned ^S^LIO" told the jury that the question of justi- fication was a mixed question of law and fact ; that where a part of a house is let for a certain period, and the tenant refuses to quit at the expiration of the term, his license to remain ceases, and the landlord is entitled to turn him out, using no unnecessary violence. That, with respect to the second issue, the questions for the jury to consider were, whether the apartments had been hired by the plaintiff A. Newton for a certain time which had expired, and whether Mrs. Newton, on being required to quit, had refused to do so. The learned baron said that, if these facts were made out to their satisfaction, they must find for the defendants on the second issue ; but lest the Court of Common Pleas should not agree in opin- ion with him, his lordship directed the jury to assess the damage upon that issue contingently. The jury returned their verdict for the plaintiffs on the first issue, and for the defendants on the second, and they assessed the contingent damages at iioo. Warren, in Michaelmas term, 1837, in pursuance of leave re- served to him at the trial, moved to enter a verdict for the plain- tiffs on the second issue for the damages assessed by the jury, or for a new trial on the ground of misdirection. The court refused a rule to enter a verdict for the plaintiff on the second issue for the damages contingently assessed, as the defendants had not consented to the assessment, but granted a rule for a new trial. The court, which was composed of Tindal, C. J., and Vaugtian, Coltman and Erskine, JJ., took time to consider; but Mr. Justice Vaughan dying, and ]\Ir. Justice Coltman differing in opinion from the Lord Chief Justice and Mr. Justice Erskine, the court desired that the case might be re-argued. It was accord- ingly again argued in Easter term last, before Tindal, C. J., and BosANQUET, Coltman and Erskine, JJ. Tindal, C. J. This case involves a question of great importance and one of very general application, namely, whether, after a ten- ancy has been determined by a notice to quit, the landlord may enter on the premises whilst the tenant stiirTemams^personiatty in"^pDS- session, and after requesting triiTrtiy depart and give up theposses- sion, and his refusing so to dOjIHay turn him out of possession by t)22 NEWTON V. HARLAND. force, using as much force and no more than is necessary for that purpose. Upon the pleadings in this case the plaintiff and his wife declare for an assault on the wife, and forcing her into the street; and the defendants justify by reason of the landlord being in the lawful possession of the house, and the wife of the tenant being un- lawfully therein, and disturbing him in his enjoyment thereof, whereupon they gently put out the wife, who had refused, when requested, to depart from the same. The point above stated must be necessarily determined before this case is ultimately decided. It appears, however, to me, that such question cannot, upon the present finding of the jury, be prop- erly brought before us ; but that there is a preliminary question which must be first ascertained, namely, whether, upon the facts in this case, the landlord entered upon the pre mises in a _jorcible manner, against the provisions and enactments ofjthe^tafutesmade against forcible entry, or, at all events, so as to render himself Jiable to an indictmenLalLcgmmon law. For if tTTeTanHrordTTn making his entry upon the tenant, has been guiltj_either of a breach of a posi- tive statute, or of an offense again^sttHe7co:mmi3n Jaw,^ appears to me that such violation of the Jaw^ in making the^entry causes J:he possession thereby obtained tp be illegal ; and that the allegation in the plea that one of the defendants was lawfully in possession at the time the assault was cpmmitted,^is negatived. In the present case the^ defendant Harland, accompanied with five other men, entered into the apartments which had been in the plaintiff's occupation, whilst his wife still remained in possession, under circumstances which, at least, leave it as a question for the jury to determine, with proper directions from the judge at the trial of the cause, whether such entry was forcible or not. The case, indeed, was sent down by the court to a second trial for the ex- press purpose of the jury finding this point, either in the negative or the affirmative. The point, however, has not been left to them ; and I think, upon this ground, without entering into any discussion of the question to which I have above adverted, on which I forbear at present to state my opinion, that the cause should go down to another trial. BosANQUET, J. I agree with my Lord Chief Justice in thinking that a new trial ought to be granted in this case. Some things are clear. If a tenant hold over the land after the expiration of his term, he cannot treat the lessor who enters peaceably as a tres- passer; and the lessor, in such case, may justify his own entry upon the land by virtue of his title to the possession. Taylor v. Cole, 3 T. R. 295; Taunton v., Costar, 7 T. R. 431. On the other hand, the lessor, who is out of possession, cannot maintain an action of tres- pass against the tenant holding over. He must first acquire a lawful possession before he can maintain such action. But if the lessor enter upon the land to take possession, he may treat as trespassers all those who afterwards come upon it ; Hey v. M oorhonse , 6 New Cases, 52; 8 Scott 156; or who, having unlawfully taken possession, wrongfully continue upon the land, as in the case of Butcher v. NEWTON V. HARLAND. 923 Butcher, 7 B. & C. 399, where the defendant had come into posses- 1 sion of the land by intrusion, and the rightful owner, having en-1 tered, was held entitled to maintain an action of trespass against \ him. *" The lessor may even break and enter a house, provided it be empty ^ which has been occupied and held over by his tenant, though the tenarit may have left some of his property therein. Turner v. Meymott, i Bing. 158. But no case has yet been decided in which the lessor has been held^to^be justified in expelling by force from a ^ dwelling house ajjerson who, having_lawfully come into possession of it, has merely c ontinued to~hbld possession a it£r-4h^~expiration_ ofJiisjitle7 ^^ The lessor who is entitled to possession may acquire such pos- session by lawful entry ; but entry by force is not lawful. Such entry is expressly prohibited by the statute 5 Rich. II, c. 7, even where entry is given by law : ''The king defendeth that none shall make entry on lands and tenements but in cases where entry is given by law ; and in that case not with strong hand nor with multi- tude of people, but only in a peaceable and easy manner." It was said in one case by Lord Kenyon, Taunton v. Costar, 7 T. R. 431, that if the party had entered and expelled the tenant by force, he might have been indicted for a forcible entry ; from which it seems to have been supposed that the entry was valid, though the party entering might be indicted for it. But if the act be expressly prohibited by statute, it must, I apprehend, be illegal and void. If the lessor enter with a strong hand, his act is unlawful, and he can- not, as it seems to me, acquire lawful possession by an unlawful act. This is an action for assault and battery. The defendant Har- land justifies his act upon the ground that he was lawfully in pos- session ; that the plaintifif Mrs. Newton was on the premises, was required to go away, and refused, whereupon he removed her in defense of his possession, using no more force than was necessary. To maintain this plea the defendants must be prepared to show that the defendant Harland had lawfully acquired possession, which, from the reason already stated, I think he had not, if force was em- ployed to obtain it. It is quite unnecessary to say whether, if the defendant had quietly entered and obtained possession of the house while the plain- tiff's wife remained in possession of her apartment, he could have justified turning her out by force.- The passage referred to in Ba- con's Abr., tit. Forcible Entry and Detainer (B), treats the force 1 employed in turning a party out as making the original entry, I though peaceable, a forcible entry within the meaning of the statute. 7^ In the present case there was evidence tending to show that the entry of the defendant was made with a strong hand, and accom- panied with such acts of violence as to bring the case within the prohibition of the statute of 5 Rich. IT. But this evidence appears to have been considered by the learned judge as immaterial, for he See Edzvick v. Hawkes, 18 Ch. Div. 199 (1881). 924 NEWTON t'. IIARLAND. said the only questions were, whether the rooms were let for a cer- tain term, whether the term was over, and, if so, whether the plain- tiff, when required, would not go out. If that was proved, he said, the verdict in law must be for the defendant. The direction appears to me to be incorrect, and that there ought therefore to be a new trial. CoLTMAN, J. Having the misfortune in this case to differ from the rest of the court, it is right that I should state the grounds of my opinion ; but as the case will go to a new trial, and the question may be raised in a more formal way on the record, it will be sufficient to state them very briefly. The law of England recognizes two modes of asserting the right to lands wrongfully withheld, — by entry and by action. In the cases in which the remedy by entry was allowed, where, to use the phrase so familiarly met with in our old books, the entry is congeable, the remedy by entry was looked upon as favorably as the remedy by action. The effect of such entry is, that it gives a man seisin, or puts into immediate possession him that has right of entry on the estate, and thereby makes him complete owner ; 3 Bla. Comm. 176. Agreeably to this, Mr. Justice Bayley said, in the case of Butcher v. Butcher, 7 B. & C. 399, *T think that a party having the right to land acquires by entry the lawful possession of it, and may maintain trespass against any person who, being in possession at the time of the entry, wrongfully continues on the land." I am not aware that any doubt exists, that after the entry made, he may turn any ordinary trespasser off the land; and I am unable to see any principle which should prevent him from treating his tenant at sufferance in the same way, for such a tenant is a mere wrongdoer : Co. Lit. S7b, Pike and Hassen's case, 3 Leon. 233, Sir Moil Finche's case, 2 Leon. 143. But it is said that a person who has a right of entry ought to enter peaceably. The true doctrine on this subject is stated, as I apprehend, correctly, in the case of Taylor v. Cole, 3 T. R. 295, where it is said: "It is true, persons having only a right are not to assert that right by force ; if any violence is used it becomes the subject of a criminal prosecution." So, in Taunton v. Costar, 7 T. R. 431, it is said: "If the landlord had entered with a strong hand to dispossess the tenant by force, he might have been indicted for a forcible entry; but there can be no doubt of his right to enter upon the land at the expiration of the term." For the preservation of the peace, the law will punish for the forcible entry ; but the tenant at sufferance being himself a wrong- doer, ought not to be heard to complain in a civil action for that which is the result of his own misconduct and injustice. The distinction between the civil rights of a person forcibly turned out of the possession of land, and the penal sanctions by which he Is protected from being forcibly dispossessed, are drawn in a marked way in the cases in our old books relating to the statutes of forcible entry. Although, by those statutes, all forcible entries were prohibited, even by those who had title to enter, yet NEWTON V. HARLAND. 925 the pnrty dispossessed could maintain no action on the statutes. This is pointedly laid down in the Year Book, 9 H. 6, 19, 15 H. 7, 17, F. N. B. 248 H., vide post 669. On these grounds I am of opinion that, although the defendant, if guilty of a forcible entry, is responsible for it in the way of a criminal prosecution, yet that as against the plaintiffs, who are wrongdoers, and altogether without title, he has obtained by his entry a lawful possession, and may justify in a civil action the re- moving them, in like manner as in the case of any other trespasser.^ Erskine, J. There are, it is true, many cases, some of which were cited at the argument, in which it has been held that no action for trespass, quare clausiim frcgit, will lie at the suit of a tenant against the landlord for a forcible entry after the expiration of the term. The earlier authorities upon this point are collected in Dal- ton's Justice, c. 129, p. 431, and the same doctrine is clearly estab- lished by the cases of Taylor v. Cole, 3 T. R. 292, Taunton v. Cos- ^ Accord: Pollen v. Brewer, 7 C. B. (N. S.) 371 (1859) ; Beatiie v. Mair, L. R. 10 Irish 208 (1882) ; Tribble v. Frame, 7 J. J. Marsh. 599 (Ky. 1834), scmble; Sampson v. Henry, 13 Pick. 36 (Mass. 1832), though it was held that an action would lie for personal injuries inflicted during the eviction; but see Low V. Elwcll, 121 Mass. 309 (1876); Curtis v. Galvin, 1 Allen 215 (Mass. 1861); Coughlin v. Gray, 131 Mass. 56 (1881), semble; Fuhr v. Dean, 26 Mo. 116 (1857); Sterling v. Warden, 51 N. H. 217 (1871); Hyatt v. Wood, 4 Johns. 150 (N. Y. 1809) ; Ovcrdeer v. Lewis, 1 W. & S. 90 (Pa. 1841) ; and Adams v. Adams, 7 Phila. 160 (Pa. 1869), though this is held in Frick V. Fiscus, 164 Pa. St. 623 (1891), to apply only when the plaintiff is the defendant's tenant at will; Rush v. Aiken Mfg. Co., 58 S. Car. 145 (1900) ; Roberts V. Tarver, 1 Lea 441 (Tenn. 1878). Contra: Larkin V. Avery, 23 Conn. 304 (1854), scmble; Entelman v. Ha- good, 95 Ga. 390 (1894) ; Moore v. Boyd, 24 Maine 242 (1844) ; Emerson v. Sturgeon, 59 Mo. 404 (1875), compare Fuhr v. Dean, 26 Mo. 116 (1857); Frick V. Fiscus, 164 Pa. St. 623 (1891), a mortgagor in possession may main- tain trespass quare clausum frcgit against a purchaser at sheriff's sale under the mortgage if the latter forciblv dispossess him; but see Coughlin v. Cray, 131 Mass. 56 (1881), contra; Dustin v. Cowdry, 23 Vt. 631 (1851) ; Whitta- ker V. Ferry, 38 Vt. 107 (1865). In Feeder v. Purdy, 41 111. 279 (1866), it is held that while trespass quare clausum frcgit lies in such case, yet only nominal or punitive damages can be recovered, compensatory damages being allowed only for the attendant injury to the plaintiff's person or personal property; accord: Dcarlove v. Harring- ton, 70 111. 251 (1873) ; Mossclcr v. Deavcr, 106 N. Car. 494 (1890) ; while in McDonald v. Light foot, Morris 450 (Iowa, 1845), it was held that the fact that the defendant had the right to enter, while no defense in trespass quare clausum frcgit, could be shown in mitigation of the damages. So trespass de bonis asportatis will not lie for the loss of the wrongful possession of property, though forcibly retaken by the owner, ^Fllls v. Wooters, 59 111. 234 (1871); Cleveland, Cincinnati & St. L. R. Co. v. MoUne Flow Co., 13 Ind. App. 225 (1895), nor can such a taking constitute special damage, Beattie V. Mair, L. R. 10 Ir. 208 (1882). If the wrongful taker has incorporated the chattel with his own from which it cannot be separated without injury thereto, the true owner may none the less retake it peaceably without liability for the necessary injury to the wrongdoer's property, White v. Twitchell, 25 Vt. 620 (1853), in which it was further held that the owner need not notify the wrongdoer of the retaking, though it made the structure from which it was taken unsafe for use, and was not liable for personal injury to the wrongful taker due to his using the structure in ignorance of the change in Its condition, but see Corby v. Hill, ante. 926 NEWTON V. HARLAND. tar, 7 T. R. 431, Argent v. Durrani, 8 T. R. 403, Turner v. Mey- mott, I Bingh. 158, 7 Moore, 574. But then the reason for this is also given, namely, that the plaintiff, having no title to the posses- sion as against the landlord, can have no right of action against him as a trespasser for entering upon his own land, even with a force, for, although the law had been violated by the defendant, for which he was liable to be punished under a criminal prosecution, no right of the plaintiff had been infringed, and no injury had been sustained by him for which he could be entitled to compensation in damages. But in the case now before the court the plaintiffs do not seek to recover damages for any supposed trespass upon their posses- sion of the rooms; but they seek a compensation for a personal injury, and they deny that the defendant had by his entry entitled himself to treat them as trespassers. By the 5 R. 2 stat. 1. c. 8., it is enacted, "that none from hence- forth make any entry into any lands and tenements but in case when entry is given by law, and in such case with strong hand, nor with multitude of people, but only in peaceable and easy manner." It is true that the punishment of fine and imprisonment is expressly added as the statutable consequence of a violation of this prohibi- tion. Yet, inasmuch as the act is directly prohibited, the act itself is made unlawful, even if it were not already so at common law; and it seems to me, therefore, to follow as a consequence that a landlord, under the circumstances of this case, though he has a right of entry, must, in order to reinvest himself with the lawful posses- sion of premises held over by his tenant, exercise his right of entry peaceably; and that he cannot found a legal right to remove the tenant upon the illegal act of a forcible possession. And this opinion is much fortified by the various provisions made by the legislature to facilitate the recovery of premises wrongfully held over by tenants after the expiration of their terms, and especially by stat. i G. 4, c. 87, i & 2 Vict. c. 74, and 56 G. 3, c. 88, for Ireland ; and I cannot but apprehend that, if it were once established at law that a landlord might, in all cases where his ten- ant holds over, enter by force upon the premises and expel the tenant, and thereby subject himself to no greater risk than the peril of an indictment for a forcible entry, under which no restitution could be awarded, the peace of the country would be endangered by the frequent resort to their summary proceedings ; and there- fore, though I have entertained much doubt upon the point, I am anxious that thi.s question should be placed in such a shape as may bring it under the consideration of all the judges, which will prob- ably be the result of sending the case down to a new trial. I am of opinion, therefore, for the reasons which I have al- ready given, that the rule for a new trial should be made absolute. Rule absolute.* *The later English cases are accord, notwithstanding the dicta of Parke and Alderson BB. in Harvey v. Brydgcs, 14 M. & W. 437 (1845), in which they adhere to the opinions expressed by them as trial judges in Newton v. BLADES V. HIGGS. 927 (b) Recaption of personal property. M ^ BLADES V. HIGGS. Court of Common Pleas, 1861. 10 Common Bench Reports (N. S.), 713. The declaration charged that the defendants assaulted and beat and pushed about the plaintiff, and took from him his goods, that is to say, dead rabbits. The deTendants pleaded, amongst other pleas, — thirdly, as to the assaulting, beating, and pushing about the plaintiff, that the plaintiff, at the said time then, &c., had wrongfully in his posses- sion certain dead rabbits of and belonging to the Marquis of Exeter ; that the said rabbits were then in the possession of the plaintiff without the leave and license and against the will of the said mar- Harland, and express disapproval of the action of the Court in Banc. In Bed- dall V. Maitlaud, L. R. 17 Ch. Div. 174 (1881), Fry, J., held that while an occu- pant of another's premises by the latter's permission, who retained possession after the permission was withdrawn, could not recover damages for his forci- ble eviction (his possession being unlawful), he might recover for injuries to his furniture in removing it, since such removal could only be justified by a lawful possession, which was not gained by the forcible evictor, see ac- cord, Millar v. Long, 75 L. T. 728 (1883), where it was held that the dispos- sessed occupant could recover for injury done to his chattels; but see Bcattic V. Mair, L. R. 10 Jr. 208 (1882), to the effect that he cannot recover for the asportation or injury to chattels owned by the defendant. In Edwick v. Hawkes, 18 Ch. Div. 199 (1881), a landlord, having a right of entry which he might have enforced by proper means, having peaceably entered the prem- ises wrongfully held by his tenant, was held liable for an assault committed in forcibly expelling the tenant's wife therefrom, such subsequent conduct making the entry, though otherwise peaceable, a forcible entry. These later cases, says Sir Frederick Pollock, Law of Torts, 9th Ed. 397, "makes the ingenious distinction — certainly not made by the majority (in Newton v. Harland) — of collateral wrongs from the forcible eviction itself"; but see Edzvick v. Hawkes, 18 Ch. Div. 199 (1881), where the assault was the very violence which made the entry, otherwise peaceable and lawful, illegal as a forcible entry. Where it is held that one, forcibly ousted from his wrongful possession by the owner, having the right of entry, may maintain trespass quare clansiini f regit, see note 2, supra, a fortiori, he can recover for injuries to his person or the removal or injury to his chattels, either as aggravation of the trespass or in an action of assault and battery or trespass de bonis asportatis. In some jurisdictions in which it is either held that no action of trespass quare clausum fregit lies, or where the point has not been decided, it is held that an action may be maintained for injuries to the person or for the removal of or injury to chattels; Denver & R. G. R. Co. v. Harris, 122 U. S. 597 (1886) ; Hvatt v. Wood, 4 Johns. 150 (N. Y. 1809), p. 160; Bristor v. Burr, 120 N. Y. 427 (1890) ; Pitford v. Armstrong, Wright 94 (Ohio, 1832) ; and see Sampson v. Henry, 13 Pick. 36 (Mass. 1832) ; and, for a valuable critical review for the cases upon the whole subject prior to 1870, see 2 Am. L. Rev. 429. Though one has by irrevocable license, express or implied, the right to enter another's premises to recover his chaattels or to take possession of his property situate thereon, he cannot justify an assault to overcome resistance to the immediate exercise of such license, Churchill v. Hulbert, 110 Mass. 42 (1872"^ ; Drury v. Hervev, 126 Mass. 519 (1879) ; Fredericksen v. Singer Mfg. Co., 38 Minn. 356 (1888). 928 BLADES v. IlIGGS. quis ; and that the plaintiff was about wrongfully and unlawfully to take and carry away the said rabbits and convert the same to his own use ; whereupon the defendants, as the servants of the mar- quis, and by his command, requested the plaintiff to refrain from carrying away and converting the same rabbits, and to quit pos- session thereof to the defendants as such servants, which the plain- tiff refused to do ; and that thereupon the defendants, as the serv- ants of the said marquis, and by his command, gently laid their hands upon the plaintiff, and took the said rabbits from him, using n.o more force than necessary ; which were the alleged trespasses in the declaration mentioned, &c. Demurrer and joinder. Erle, C. J. The declaration was in this case for an assault and battery. The substance of the justification was, that, the plain- tiff having wrongfully in his possession rabbits belonging to the defendants (we consider the servants here the same as the master), and being about to carry them away, the defendants requested him to refrain, and, on his refusal, mollitur mones imposuentnt, and used no more force than was necessary to take the rabbits from liim. To this the plaintiff has demurred, and thereby admits that he was doing the wrong, and that the defendants were maintaining the right, as alleged : and he contends they are not justified in using necessary force, on account of the danger to the public peace : but he adduces no authority to support his contention. The defendants likewise have failed to adduce any case where the justification was supported without an allegation to explain how the plaintiff took the property of the defendant and became the holder thereof.^ But the principles of law are in our judgments decisive to show that the plea is good, although that allegation is not made. If the defendants had actual possession of the chattels, and the plaintiff took them from them against their will, it is not dis- puted that the defendants might justify using the force sufficient to defend their right and retake the chattels : and we think there is no substantial distinction between that case and the present ; for, if the defendants were the owners of the chattels, and entitled to possession of them, and the plaintiff wrongfully detained them from them after request, the defendants in law would have the pos- session,- and the plaintiff's wrongful detention against the request of the defendants would be the same violation of the right of prop- erty as the taking of the chattels out of the actual possession of the owner. It has been decided that the owner of land entitled to the pos- session may enter thereon and use force sufficient to remove a wrongdoer therefrom. In respect of land, as well as chattels, the Mn Anon., Keilwey 92, pi. 4 (1506), the plaintiff having refused to give up a horse which he had taken from the defendant's possession (how long before does not appear) the defendant said if the plaintiff did not return it he would take it in spite of him. and taking up a staff came towards the plain- tiff, this was held an assault justifiable. = So in Hodgeden v. Hubbard, 18 Vt. 504 (1846), the plaintiff, who had obtained a stove by fraud, was held to have gained no lawful possession thereby. BOWMAN v. BROWN. 929 wrongdoers have argued that they ought to be allowed to keep what they are wrongfully holding, and that the owner cannot use force to defend his property, but must bring his action, lest the peace should be endangered if force was justified: see Nezvton \\ Harland, i ^I. & G. 644, i Scott N. R. 474. But, in respect of land, that argument has been overruled in Harvey v. Brydges, 14 'M. & W. 442. Parke, B., says : "where a breach of the peace is com- mitted by a freeholder, who, in order to get possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how^ it is possible to doubt that it is a perfectly good justification to say that the plaintiff was in possession of the land against the w'ill of the defendant, who was owner, and that he entered upon it accordingly ; even though in so doing a breach of the peace was committed." In our opinion, all that is so said of the right of property in land, applies in principle to a right of property in a chattel, and supports the present justification. If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury instead of redressing xt? ^^"^^ For these reasons, our judgment is for the defendants. Judgment for the defendants.* BOWMAN V. BROWN AND HALL. Supreme Court of Vermont, 1882. 55 J'erntont Reports, 184. Trespass. The third count was for assault and battery. Plea, general issue. Trial by court, Windsor County, May Term, 1881, Taft, ]., presiding. Judgment for the plaintifif. ^"If a man meets) another in the highway, and by false and fraudulent misrepresentation induced that other to surrender to him the possession of his horse and carriage, and when he has so obtained possession, shows a dif- ferent purpose, by word or act, to appropriate it to his own use, and to escape with it, surely it will not be held the person so deprived of property is com- pelled to stand with folded arms and see the fellow so escape beyond the reach of the law, or a hope of a restitution of his property, or be guilty of a violation of law in attempting to recover possession." — Turney, J., in Ander- son &■ Austin v. State, 6 Baxter 608 (Tenn. 1872). * Hopkins v. Dickson, 59 N. H. 235 (1879), the property had been wrong- fully taken, how long before not stated, from the defendant's possession ; Sterling v. Warden, 51 N. H. 217 (1871), a postmaster forcibly took posses- sion of post-office property, wrongfully withheld by his predecessor. The right of an owner to forcibly retake his chattel, wrongfully taken or with- held from him, is stated broadly and without qualification in Baldivin v. Hay- den, 6 Conn. 453 (1827); Barr v. Post, 56 Nebr. 698 (1898), semble ; and Winter v. Atkinson, 92 111. App. 162 (1900), though there the effort to retake the goods was made immediately upon the plaintiff's refusal to give them up. In Winter v. Atkinson, 92 111. App. 162 (1900), a master was held entitled to retake by force, from a servant about to leave his employment, a book con- taining a list of customers, which had been entrusted to the servant for Q20 BOWMAN V. BROWN. It appeared on trial that the defendant's cow was kept in a pasture near the plaintiff's enclosure, with an arable field between the pasture and enclosure ; that there was a fence between the field and pasture, but by agreement of the owners none between tlic field and said enclosure; that the cow escaped into this field and thence on to the plaintiff's land, where he seized her, tied her to a post and was about to drive her to the pound, when said Hall, a servant of said Brown, and by his direction, forcibly took the cow from the plaintiff ; that said Brown, when he learned where his cow was, went to the plaintiff and proposed to pay for any damage that had been done by the cow ; that the plaintiff said all he wanted was that the defendant should take the cow and take care of her, but said Brown did not give him to understand that he would do so, but proceeded to untie the cow, and finally directed his servant, Hall, as stated above. The testimony was conflicting ; but the court found that the plaintiff did not relinquish possession of the cow, of his intent to impound her, and that he was guilty of no unrea- sonable delay in carrying his design to impound her into execution ; and further found that the plaintiff" in his attempt to retain posses- sion of the cow was injured in his person, by reason of the acts of the defendants, and suffered damages in consequence thereof to the amount of sixty dollars. Veazey, J. The recovery below was had, under the count for assault and battery, for injuries received by the plaintiff while pro- ceeding to impound the cow of the defendant Brown and in resist- ing the assaults of the defendants in their efforts to rescue the cow. The defendants claimed they had the right to retake the cow and to use such force as was necessary for that purpose, for the alleged reason that under the facts found the plaintiff had no legal right to impound the cow. The plaintiff had not obtained possession wrongfully or with any fraudulent purpose. The cow was in his enclosure and he was proceeding to deal with it as he thought he had a right to do. Defendant's counsel insist that the rule is estab- lished in this state to the effect that a person who is out of pos- session may lawfully "fight himself" into legal possession. This rule has not been expressly adopted except in cases where the use in his service, and which the latter refused to give up, claiming it as his own. The facts in Barr v. Post, 56 Nebr. 698 (1898). were similar, in both cases the right of recaption from one wrongfully holding a chattel from the rightful owner is stated generally, but see the suggestion in Davis V. Whitridge, 2 Strob. 232 (S. Car. 1847), that as the possession of the serv- ant is the possession of the owner, his master, the latter has a right to forcible recaption against him, though he might not have such a right against a stranger wrongfully withholding possession ; but, where the serv- ant claims the chattel as his own, it is held in Kirby v. Foster, 17 R. I. 437 (1891), that the constructive possession of the master would cease and the servant's retention would be adverse and in his own right. The right of a master to retake his goods from a servant or workman to whom they have been entrusted for the purpose of the service or the work, and who wrongfully refuses to give them up upon demand, is denied in Mouson v. Lews, 123 Wis. 583 (1905), and in Winter v. Beebe, 126 Wis. 379 (1905). GYRE V. CULVER. 93T owner was dispossessed by force or fraud^ and the pursuit was fresh. ^ Hodgeden v. Hubbard, i8 Vt. 504. And such cases have been somewhat criticised but not overruled. Dustin v. Cowdry, et al., 23 Vt. 631. The judgment of the County Court is affirmed. (J GYRE V. CULVER. Supreme Court of New York, 1867. 47 Barbour's N. Y. Sup. Ct. Rep., 592. This is an appeal by the plaintiff from an order granting a new trial. The action was for assault and battery. The defense was that the plaintiff was trespassing on the defendant's land, or land of John Culver, of which he had charge as agent for the owner, stealing wood ; that he ordered her off the premises ; that she re- '^ Accord: State v. Dooley, 121 Mo. 591 (1891), where the pursuit was in fact fresh, the court holding that forcible recaption is permissible, though not at the precise time and place of the wrongful taking; Shcllabarger v. Morris, 115 Mo. App. 556 (1905), here the chattel, a straying chicken, was on the plaintiff's premises, and the right to enter such premises is also in- volved; Stanley v. Payne, 78 Vt. 235 (1905). where the defendant in giving up his tenancy of a farm, agreed with his landlord that a box of his should remain in the barn during the spring, and that he might remove it there- after. The plaintiff, who succeeded him as tenant, knew nothing of this agreement and when the defendant came to remove the box, refused to give it up till he had consulted the landlord, and, the defendant insisting on taking it, injured the plaintiff in the scuffle. In Kirby v. Foster, 17 R. I. 437 (1891), the plaintiff was given money by the agent of his employer to pay off the latter's help, and acting under the advice of counsel, pocketed $50 to repay money which he claimed had been improperly deducted from his salary, and returned the balance, saying he was now paid and would leave. The defendants, the agent and a fellow- employe, thereupon seized him and in the struggle injured him. The court held that the right of forcible recaption existed only where there was "a purely wrongful taking or conversion, without a claim of right" ; and in Sabre v. Mott, 88 Fed. 780_(Circ. Ct. of Vt. 1898), it was held that the de- fendant was not justified in using force, much less in committing an as- sault, to retake property which had been in the plaintiff's peaceable posses- sion for a day and "the title being in dispute." In many cases, however, forcible recaption has been allowed though the property had been taken or its return denied under a bona fide claim of title, CommonwealtJi v. Don- ahue, 148 ]\Iass. 529 (1889), the facts of which are in substance similar to those in Kirby v. Foster, 17 R. I. 437 (1891) ; State v. Elliot, 11 N. H. 540 (1841); State v. Doolev, 121 Mo. 591 (1894); Winter v. Atkinson, 92 111. App. 162 (1900); Hamilton v. Arnold, 116 Mich. 684 (1898), and Johnson V. Perry, 56 Vt. 703 (1884). In State v. Elliot and State v. Dooley, it is however, said that less force must be used when there is an honest claim of title than when the taking is felonious, while in Harris v. Marco, 16 S. Car. 575 (1881), the court, while intimating that a man may resist the taking of his property within his view, though not in his manual possession, even by an assault and battery, if the taking be felonious or without claim of right, he may not commit a breach of the peace in an attempt to retake his property even taken within his view under a claim of right. "^ Accord: Shcllabarger v. Morris, 115 Mo. App. 556 (1905); State v. Elliot, 11 N. H. 540 (1841). p. 545; and see Sir Frederick Pollock's comment upon Blade v. Higgs, "but probably that case goes too far in allowing re- caption by force, except perhaps on fresh pursuit." — Law of Torts, 9th Ed. 386, note (h), 399, note (g). 932 GYRE Z'. CULVER. fused to go, that defendant thereupon ejected her, using no more force than was necessary — which is the assauU and battery com- plained of. On the trial the defendant gave evidence tending to establish this defense. The court charged the jury "the defendant is strictly or technically liable to respond in this action. Any such interference with her person cannot be justified even if she was trespassing, &c." To this the defendant excepted. The defendant thereupon also requested the court to charge that if the plaintitf was trespassing upon the farm of the defendant's father at the time of the taking of the wood in question, and if on being required to leave the premises, the plaintiff refused, the defendant had a right to use sufficient force to eject her from the premises, and that if he used no more force than was sufficient for the purpose, the plaintiff was not entitled to recover. The court refused so to charge, and the defendant excepted. The court further charged the jury to "find for the plaintiff such a verdict as you think will be just and proper," and they found $100. JoiixsoN, J. I am of the opinion that the new trial in this case was properly granted. \\'here one person has unlawfully en- tered upon the premises of another and possessed himself___of the. goods of the owner, such owner, or his agent, may surelyT while upon his own premises, prevent the wrongdoer from taking such goods away, and may lawfully use so much^ force as may .he neee-S- sary to retain his property and prevent itsj;ema\al out of his cus- tody and beyo nd hi_s reach . The law does not oblige the owner of property to stand idly by and see a thief or trespasser take his property from his premises, or limit him to mere verbal remon- So it is said by Holmes, J., in Commonwealth v. Donahue, 148 Mass. 529 (1889), that "it is settled by ancient and modern authority that . . . a man may defend or regain his temporarily interrupted possession by the use of reasonable force, short of wounding or the employment of a dan- gerous weapon." This is quoted with approval in Hemingway v. Hcming- zvay, 58 Conn. 443 (1890). In the first case the defendant offered to rtturn goods purchased or to pay a sum less than that asked for them, the plaintiff accepted the lesser sum but immediately repudiated the condition and de- manded the balance, thereupon the defendant forcibly repossessed himself of the money. In the latter case the plaintiff, a director of a company, and as such entitled to access to its letter book, took memoranda from it for the benefit of a rival company, whereupon the defendant, the secretary, on the plaintift"'s refusal to give it up. then and there took it from him by force. In the following cases in which the right of forcible recaption is rec- ognized without qualification, the possession was in fact only momentarily uninterrupted and the defendant tried to regain his property as soon as he knew that it was wrongfully taken or withheld, Baldwin v. Hayden. 6 Conn. 453 (1827), plaintiff was carrying off a letter just before given to him to read; Rex V. Milton, 1 M. & M. 107 (1827), plaintiff refused to give up a warrant which had been handed to him upon his request to see it; State v. Elliot, 11 -V. H. 540 (1841) ; Carter v. Sutherland, 52 ^Nlich. 597 (1894) ; so in Wright V. Southern Exf^ress Co., 80 Fed. 85 { 1897) ; Hodgeden v. Hubbard, 18 Vt. 504 (1846) ; Anderson &- A%istin v. State, 6 Baxter 608 (Tenn. 1872) ; Com- monzcealth v. Donahue, 148 Mass. 529 (1889). the defendant sought to re- take his property as soon as he discovered the fraud by which it had been obtained or the repudiation of the condition upon which it had been given. GYRE v. CULVER. 933 strance. _He_mavact p romptly, and w hetlie^ r he j nay nse- force-or not in thefirstLinsiaace^and what d egreeof fo rce, depends upon the exigency of t he particular _case.^ Tlie mere taking of the property !5y~fHe~~owner, under such circumstances, from the custody of the wrongdoer, without other force or violence, would not constitute an assault and battery.- If the taking, or the attempt to take, is resisted by the trespasser," and he persists in his attempts to retain possession, and carry the, property off, then the owner may law- fully use so much additional force as may be necessary to prevent it. Such being the rule of law, both the charge and the refusal to charge as requested, were erroneous. The learned judge charged the jury that the defendant was not justifiable in using the force he did, conceding his own version of the matter to be in all respects correct. The evidence was conflicting, and the difference between the plaintiff's version of the affair and that of the defendant was quite marked, if not wholly irreconcilable. But, upon the hypothesis of the entire correctness of the defendant's testimony, it clearly cannot be said, as matter of law, that any unnecessary or unjustifi- able force was used to prevent the removal of the property ; espe- cially in view of the persistent eft"orts of the plaintiff to take the property away after it had been taken from her by the defendant. The request to charge the jury embodied a proposition strictly in accordance with the law, as I understand the rule, and quite per- tinent to the case, upon the evidence. The exception to the refusal to so charge was well taken. The order granting a new trial must therefore be affirmed.* ^Accord: Carter v. Sutherland, 52 Mich. 597 (1884): Mcnqedocht v. Van Dorn, 48 Xebr. 880 (1896) ; Kunkle v. State, 32 Ind. 220 (1869). The force must be reasonable and, unless the taking be felonious — State v. Doo- ley, 121 Mo. 591 (1894) — must stop short of wounding or the use of dan- gerous weapons, Coinnionwealth v. Donahue, 148 Mass. 529 (1889) ; Kunkle V. State, 32 Ind. 220 (1869). It is no defense to an action of false imprison- ment that the plaintiff was detained and imprisoned for the purpose of forcing him to sive up the wrongful possession of the defendant's chattel, Harvey v. Mavne. Ir. Rep. 6 C. L. 417 (1872) ; Davis v. Whitridge, 2 Strob. 232 (S. Car. 1847). ^In Hodgeden v. Hubbard, 18 Vt. 504 (1846), emphasis is laid on the fact that "to obtain possession of the property in question, no violence to the person of the plaintiff was necessary, or required, unless from his re- sistance." It was not like property carried about the person, as a watch or monev; accord-' State v. Elliot, 11 X. H. 540 (1841); Johnson v. Perry, 56 Vt. 703 (1884). ^ "The person in wrongful possession has no right to resist tlie attempt of the defendant to regain his property" ; cases cited in Xote 2, supra. But see Situs v. Reed, 12 B. Monr. 51 (1851), holding that one may use force to defend his peaceable though wrongful possession even against the owner. * Accord-' Johnson v. Perry, 56 Vt. 703 (1884), the plaintiff had gone on the defendant's premises and taken slabs belonging to the latter and had loaded them upon his sled and was about to remove them, when the de- fendant interfered and threw the slabs from the sled, using such force as was necessary to overcome the plaintiff's opposition thereto; Hamilton V. Arnold, 116 Mich. 684 (1898). the plaintiff had picked plums on land, found by the jury to belong to the defendant, but honestly claimed by the plaintiff's husband, and was attempting to carrv them awav ; and see Winter V. Atkinson, 92 III. App 162 (1900), and Baldwin v. Hayden, 6 Conn. 453 (1827). 934 AXDRE V. JOHNSON. ANDRE V. JOHNSON. Supreme Court of Indiana, 1843. 6 Blackford's Ind. Reps., 375. Dewey, J, This was an action of trespass by Johnson against Andre. The first count of the declaration alleges thac the defendant assaulted the plaintiff, forced and pushed him with great violence off his horse, threw him down upon the ground, struck him violent- ly, and with great force, insult, and abuse, wrested the horse, sad- dle, and bridle of the plaintiff from his possession. The second count is for taking and carrying away the horse, saddle, and bridle of the plaintiff. The defendant pleaded, i. The general issue. 2. That the supposed trespasses in the first and second counts mentioned were one and the same, and not other or different trespasses ; that as to the force, &c., and all the supposed trespasses in the declaration men- tioned, except the forcing the plaintiff off his horse, pushing him down upon the ground, wresting the horse, saddle, and bridle from him, carrying them away, the defendant was not guilty, and put himself upon the coimtry. And as to the residue of the supposed trespasses, actio non, because the horse was the property of the defendant; that the plaintiff, with his own saddle and bridle, was "tortiously" mounted upon the horse in a public street ; that the de- fendant requested him to dismount and give up the horse; that he refused; whereupon the defendant, for the purpose of obtaining possession of the horse, "gently laid his hands upon the plaintiff" and dismounted him; that the defendant took possession of the horse, and in so doing necessarily forced and pushed the plaintiff down upon the ground ; and that he necessarily removed the saddle and bridle to a small and convenient distance, (specifying the place), where he left them for the use of the plaintiff", doing them no needless injury; which were the same, &c. The plaintiff replied de injuria, &c., upon which there was issue. Verdict for the plaintiff. Motion for a new trial overruled, and judgment on the verdict. It is contended that the court erred in overruling the motion for a new trial. It appears by the record, that the plaintiff fully established by testimony the assault and battery as laid in the first count, except the striking of him by the defendant. Whether the defendant proved the facts set forth in his special plea we have not inquired, because if he did, they constituted no justification of that part of the assault and battery to which they refer. The plea shows no force on the part of the plaintiff in obtaining possession of the horse, nor at what time h'e obtained it. It simply states, in refer- ence to this matter, that he was tortiously possessed in a public street, and that he refused to give up the horse on the demand of the defendant. It is not lawful for the owner of property to take it from the peaceable though wrongful possession of another, by CHAMBERS V. BEDELL. 935 means of violence upon his person ; the remedy lies in a resort to law, not to force. ^ 3 Bl. Comm. 4. CHA^IBERS V. BEDELL. Supreme Court of Pennsylvania, 1841. 2 Watts & Sergeant's Penn. Rep., 225. Error to the District Court of Allegheny county. Andrew Bedell against William Chambers and others. This was an action of trespass quare clausiim fregit, in which the de- fendant pleaded not guilty. The parties were owners of adjoining tracts of land, and dis- puted about their partition line. The plaintiff cut a quantity ot rails upon the land in dispute, and hauled them to another part of his land, which was not in dispute. The defendant went there in the night and hauled the rails away, for which this action of tres- pass w^as brought. It appeared clearly on the trial that the land where the rails were cut belonged to the plaintiff. The court below, in answer to a point put by the defendants, instructed the jury, that whether the land belonged to the plaintiff or not, he was at least entitled to recover nominal damages ; but that the evidence clearly and con- clusively established the plaintiff's title, and he was therefore en- titled to recover the value of the property taken in damages. Per curiam. It is certain, that if the chattel of one man be put upon the land of another by the fault of the owner of the chattel, and not by the fault or with the connivance of the owner of the land, the owner of the chattel cannot enter to retake it; but that it be put there without the fault or consent of either party, the owner of the chattel may enter and take it peaceably,^ after de- ^ Accord: Bohh v. Bosworfh, 2 Littell's Selected Cases, 81 (Ky. 1808); Barnes v. Martin, 15 Wis. 240 (1862); Bliss v. Johnson, 73 N. Y. 529 (1878), semble; Street v. Sinclair, 71 Ala. 110 (1881), semhle; Watson v. Rinderknecht, 82 Minn. 235 (1901); and see Stanley v. Payne, 78 Vt. 235 (1905), though there neither the original possession nor the detention, that of a bailee pending consultation with his bailor, was wrongful, and see Fredericksen v. Singer Mfg. Co., 38 Minn. 356 (1888). In Hcndrix V. State, 50 Ala. 148 (1873), it was held that it was no de- fense to an indictment for assault and battery, committed in an attempt to obtain possession of a horse, ridden by the prosecutor, that the horse had been stolen from the defendant some time before, by a person not named. And in Sabre v. Mott, 88 Fed. 780 (Circ. Ct. of Vt. 1898), it was held that the defendant was not justified "in using force, much less in committing an assault to retake property which had been in the plaintiff's peaceable pos- session for a day," though here, as in Bobb v. Bosworfh, 2 Littell's Selected Cases, 81 (Ky. 1808), the title was in dispute. ^Accord: Richardson v. Anthony, 12 Vt. 273 (1840), the heifers in ques- tion had been for a year in the peaceable possession of the plaintiff, who for- bade the defendant to enter and retake them : there being no averment or evidence how they had come into the plaintiff's oossession, it was held that "^no fault is attributable to either party so far." but they, being detained "under wrongful claim of title after request to return them or to allow 936 CHAMBERS V. BEDELL. mand and refusal of permission, repairing, however, any damage which may be occasioned by his entry.'- So, also, where the parties are in equal default, for instance, by omitting to repair a partition fence, by reason of which the cattle of the one happens to stray into the close of the other.^ But all the books agree, that where a chattel escapes from the possession of its owner by his consent, exclusive negligence, or other default, he cannot pursue it into the close of another, without becoming a trespasser by his entry ;* but that he may lawfully enter and retake his property, where it has been wrongfully taken or received by the owner of the land.^ Now, the owner to remove them, were in his enclosure, when thej'- were taken, by his own wrong." Contra- Salisbury v. Green, 17 R. I. 758 (1892), where also the plaintiff had had long continued peaceable posses.^ion of chattels under claim of right; Blake v. Jerome, 14 Johns. 406 (N. Y. 1817) : Roach V. Damron, 2 Humph. 425 (Tenn. 1841) ; Chess v. Kelly, Z3 Blackf. 438 (Ind. 1834); and see Chase v. Jefferson, 1 Houst. 257 (Del. 1856). The right to enter after demand and refusal, when the chattels come on the land by their owner's wrong or consent, is denied in Kcivkirk v. Sabler, 9 Barb. 652 (X. Y. 1850). The mere fact that the defendant's goods are on the plaintiff's land, gives no right to enter, at least before demand and refusal, so a plea merely alleging the defendant's goods to be on the plaintiff's premises without showing how they came there, was held in Aiiihonv v. Hanex, 8 Bing. 186 (1832), to be bad on demurrer; Goff y. Kalts, 15 Wend. 550 (N. Y. 1836) ; Salisbury v. Green, and other cases cited above as contra to Richardson v. Anthony, 12 Vt. 273 (1840). 'In Anthony v. Haney, 8 Bing. 186 (1832), it was intimated that no matter how the goods came on the premises of the owner "if the occupier refused to deliver them up or make no answer to the owner's demand, at any rate the owner might in such case enter and take his property, subject to the payment of any damage he might commit." This is sharply criticised by Judge Cooley, law of Torts, 50 n. 2; "If," he says, '"he were liable in damages for the entry, it must be because it is unlawful ; and in that case it might be resisted. There can be no such absurdity as a right of entry and a co-existent right to resist the entry." — but see I'incent v. Lake Erie Co., cited in Note 3 to Ploof v. Putnam, post. The right of entry was al- lowed in Richardson v. Anthony, 12 Vt. 273 (1840), without any such con- dition. M Dane's Abr. C. 134, §13, cited in Wheelden v. Lowell, 50 :\Iaine 499 (1862). * So where the owner has himself put the goods on the other's land. (Nezvkirk v. Sabler, 9 Barb. 652 (N. Y. 1850), or has consented to their being put or kept thereon, Crocker v. Carson, 33 Maine 436 (1851) ; Roach V. Damron, 2 Humph. 425 (Tenn. 1841) ; or has bailed the goods to such other, McLeod v. Jones, 105 Mass. 403 (1870) — but see Madden v. Brown. 8 App. Div. 454 (N. Y. 1896), — though he has the right to their possession. he cannot enter to take them without the owner's permission, unless the nature of the dealings between the parties requires the implication of a li- cense to enter. Where one sells, Nettleton v. Sikes, 8 Mete. 34 (Mass. 1834) ; Nezvkirk v. Sabler, 9 Barb. 652 (N. Y. 1850); McLeod v. Jones, 105 Mass. 403 (1870), semble, — but compare Crocker v. Carson. 33 Maine 436 (1851), or mortgages, Zimmler v. Manning, 2 S. C. R. (N. S. W.) 235 {\Bi63') , semble : McNeal v. Emerson, 15 Gray 384 (Mass. 1860), goods on his premises, there is an implied license to enter such premises to remove them, but not to enter other premises to which they may have been removed ; McLeod v. Jones. 105 Mass. 403 (1870), and such license only binds the vendor or mortgagor. Roach V. Damron. 2 Humph. 425 (Tenn. 1841) ; Zimmler v. Manning, 2 S. C. R. (N. S. W.) 235 (1863). ''In Patrick v. Colerick. 3 M. & W. 483 (1838), Parke. B., says, "that when a party places the goods of another upon his own close, he gives to CHAMBERS V. BEDELL. 93; if the property in the rails in question had been in the defendant, tlie plaintiff who had piled them up on his land, could not have re- covered even nominal damages for the defendant's entry to remove them ; and in this respect the direction would have been wrong. But it was in clear and uncontradicted proof, that the defendanr, Chambers, had not even a colourable title to the land where the rails were grown and made, and consequently not even a colourable title to enter on the plaintiff's land in order to carry them away ; and the inaccuracy of the charge, in this abstract particular, was there- fore immaterial. Judgment affirmed.'^ the owner an implied license to entei for the purpose of recaption." Rut the plea held good alleged a wrongful taking by the plaintiff from the de- fendant's possession and a fresh pursuit. When the plaintiff has wrongfully taken the goods, the right of entrv is generally allowed; Anon., Y. B. 9 Edw. IV. 35. pi. 10 (1469), per Little- ton, J.; Salishiirv v. Green, 17 R. I. 758 (1892), senible: Madden v. Browu, 8 App. Div. 454 (N. Y. 1896)-; IVheelden v. Lozvell, SO .Alaine 499 (1862): goods obtained by fraudulent purchase; McLeod v. Jones, 105 IMass. 403 (1870), semble; Murray v. M'Neil, 1 N. S. W. W. N. 136 (1885), semble, Graham v. Green, 10 New Brunswick (5 Allen) 330 (1802), and if the taker refuse to give them up, the owner in order to retake them may break into his close to obtain them. In Pollyes Case, Godbolt 282 (1620), it is said that in such case the owner may justify an entry upon the wrongful taker's land but not his house, for that is "his castle," into which another man mav not enter without his consent"; accord: Cutler v. Smith, 17 111. 252 (1870).' Bur see Anon., (1638), Clayton, 65 (pi. Ill), where the defendant, whose goods had been wrongfully distrained, was held justified in entering the wrong- doer's house to retake them. So where the goods are taken by a third party and placed with the plain- tiff's consent on his land. Chapman v. Thumblethorp, Cro. Eliz. 329 (1594), in which, while the court stated broadly that whenever the defendant's beasts are taken from him by wrong and are not out of his possession by his own delivery, he may justify the taking of them in any place he may find them, the plea which was held good averred that the wrongful taker placed the goods on the plaintiff's close with his assent. Accord: Zimmlcr v. Manning, 2 S. C. R. (N. S. W.) 235 (1863). If goods, originally stolen, CoUomh v. Taylor, 9 Hum.ph. 689 (Tenn. 1849), semble, or transferred in fraud of the owner's rights, Murray v. M'Xcit, 1 N. S. W. W. N. 136 (1885), are in the possession of a bona fide holder, the owner though entitled to the possession, cannot justify an entry upon the premises of the purchaser for the purpose of retaking them. ®"If a man wrongfully imprisons me in his house. I may break the win- dows and hedge to escape, &c., for in all these cases it is the plaintil'f's wrong"; Littleton, J., Y. B., 9 Edw. IV, 34, pi. 10 (1469). So one. who is in possession of goods upon, the premises of another, may justify Ijrcaking doors or gates to remove them, if the occupier of the premises attempts to unlawfully detain them by locking the gates, Robson v. Jones, 2 Bailev 4 (S. Car. 1830). One upon whose lands another's goods have been placed or allowed to remain, may justify taking them and putting them upon the owner's prem- ises, and in so doing is not guilty of either trespass quare clausiini fregit or de bonis asportatis, Cole v. Maunder, 2 Rolle. Abr. 548 (1635), Rea v. Sheward, 2 M. & W. 424 (1837), but he must do so in a reasonable manner and put them in a place where they will cause no unnecessary damage or in- convenience, Burnham v. Jenness, 54 Vt. 272 (1881). 938 CUNNINGHAM t'. YEOMAN. CUNNINGHAM v. YEOMAN. Supreme Court of New South Wales, 1868. 7 Sup. Ct. Rep. N. 5. W., 149. Action of trespass quare clausnm fregit. Declaration in sub- stance alleged that defendant broke into and entered plaintiff's dwelling house with his servants, and broke and pulled down the doors of same, and with the servants remained therein a long time. Plea, that before and at the time of the alleged grievance the de- fendant was possessed of certain horses which had been feloniously stolen from him by certain persons and were by or with the priv- ity of the plaintiff placed upon the premises of the plaintiff, and that the defendant being informed and having probable cause to believe that the horses were on the said premises, made pursuit after his horses and quietly and peaceably entered with his servants to view the said horses so belonging to him and carry them away as he lawfully might, doing no unnecessary damage. Demurrer and joinder. Stephen^ C. J. If a chattel be feloniously taken, and put on a third person's premises by the latter's consent, the latter, although not cognizant of the felony, justly incurs the risk of the thing turn- ing out to be stolen ; and for the sake of public justice, and the re- pressing of crime, the owner of the property has, and ought to have at any time, the right of entry on such person's premises, and of re- taking the chattel. I see no reason why the right of recaption should be limited to cases where there is fresh pursuit. It has been held that in cases of trespass, hue and cry makes no difference. Public policy, which supersedes all questions of private interest, requires that every felony should be punished, and that an oppor- tunity of prosecuting the thief to conviction should be facilitated by the production of the stolen property ; and I think this dis- tinguishes the cases of goods taken by trespass and by felony. If a stolen horse is on land not with the consent of the owner of the land, an entry by the owner of the horse on such land may be un- lawful ;^ but if the owner of the land has allowed a stolen horse to be placed there, why may not the owner of the horse in the interest of the public enter and retake him? Baldzvin v. Noaks, in 2 Lut- wyche 1309, supports this proposition ; and in that case there is no mention of fresh pursuit. The authority of Blackstone, cited and approved of by Lord Chief Justice Tindal, in Anthony v. Haney, implies that the right of recaption exists where the goods have been feloniously stolen. I doubt whether a search warrant was neces- sary under such circumstances. Such an authority would be neces- 'In Wehb v. Bevan, 6 M. & G. 1055 (1844), the plea held good alleged merely that his recenth' stolen mare was in the plaintiff's stable ; but see the reporter's note (b), in which he says: "The entry upon the plaintiff's land would appear to be lawful if the defendant's goods were brought there with the privity of the plaintiff or it would seem, if brought there by any person who v/as upon the close with the permission of the owner. CUNNINGHAM f. VEOMAX. 939 sary, if it turned out that the goods were not on the premises ; nor could outer doors be broken open, unless under such a warrant. - As to the breaking of doors for the purpose, that may or may not be justifiable. But that question does not yet arise ; for, as complained of in the declaration, it is matter incidental only to the entry, and therefore is matter of aggravation merely. If the plain- tiff desires to make it matter of substantial complaint, he can new- assign. I am not clear whether, if the horse here had been taken by trespass merely, but put on the plaintiff's premises by his consent, after such trespass, the authority of Zimmlcr \\ Manning would apply. Cheeke, J., concurred. Faucett, J. The breaking and pulling down the doors, and the remaining in the plaintiff's house for a long time, is, it is clear, only matter of aggravation ; and the pleader who drew the de- murrer evidently was of this opinion ; for the plea is not stated to be insufficient on any such ground. I give no opinion whether the entry is justifiable if the horse has been taken by trespass ; but I have no hesitation in acting on the authority of Higgins v. Andrezvs, which is referred to in 2 Lut- wyche, and has been constantly recognized in the Abridgments, and which is relied on in the passage from Blackstone's Commentaries, quoted with approval by Lord Chief Justice Tindal in Anthony v. Haney. Where goods have been stolen, the owner of the land where those goods are placed with his privity, although ignorant that the felony has been committed,^ cannot complain if the owner of the goods enters upon his land and retakes them. No notice or demand is in such case necessary. The rule is founded on public policy, and that the ends of justice may not be defeated. I think it is not necessary to allege fresh pursuit ;* for it is plain that it may be some time before it is known where the stolen property is to be found. Judgment for the defendant.^ * See Pollyes case, note 5 to Chambers v. Beddell, ante. ^As to whether it is necessary, when goods are tortiously taken by a third party and placed by him on the plaintiff's land, to show not merely that the plaintiff assented to the goods being placed there, but that he did so knowing them to be tortiously taken, see Baldwin v. Noaks, 2 Lutw. 1309 (1684) ; Wells, J., in McLeod v. Jones, 105 Mass. 403 (1870), intimating that the owner of the land must be a participant in the wrongful taking; and Bennett, J., dissenting in Richardson v. Anthony. 12 Vt. 273 (1840), p. 279, h who says that by his consent, "the landholder becomes a participant in the wrong." * Both wrongful taking and fresh pursuit is held essential in Salisbury V. Green, 17 R. I. 758 (1892) ; compare Kirby v. Foster, note to Blades v. Higgs, ante. "In Higgins v. Andrews, 2 Rolle. Abr. 564 (1618), 2 Rolle. Rep. 55. it is held that I cannot justify entering another's house on the common report that a third person, who has wrongfully torn up my trees, has placed them in such house "inasmuch as the taking away of these trees annexed to the freehold was not a felony but only a trespass." In Topladye v. Stalye, Style 165 (1649), it was held a plea that mere 940 ANONYMOUS. (c) Abatement of nuisance. ANONYMOUS. In the Common Pleas, 1469. Year Book, 9 Edward IV, f. 34, pi. 10. Writ of right. Choke, J. The main question is, whether the pulHng up of the stakes of the pond was lawful ; for, if so, the tearing down of the house was lawful, for he says in his plea that he could not have pulled up the stakes without the house falling down. Fairfax. It seems that he shall be put to his action of tres- pass or nuisance, for he could not enter the freehold of the plain- tiff ; and, sir, if a man has a sewer running from his place in Lon- don to the Thames, and it is stopped up, he cannot break the soil to clear it, but is put to his action. Littleton, J. It seems that he may well pull up the stakes, for they were erected to his nuisance ; and if he had waited to bring an action, his land might have been surrounded, and he would have lost the profits of his mill meanwhile,^ and it seems to me that the common rumor that stolen sheep were on the plaintiff's land would not justi- fy an entry, since it did not show how they came thereon, whether as strays or by theft of the plaintiff, or placed there by the thief with the plaintiff's consent. * But one abating a nuisance, private or public, is liable for any damage done which is not necessary to effect the abatement, Gates v. Blincoe, 2 Dana 158 (Ky. 1834) ; Calef v. Thomas, 81 111. 478 (1876) ; Indianapolis v. Miller, 27 Ind. 394 (1866) ; Moffett v. Braver, 1 G. Greene 348 (Iowa 1848) ; Chilli- cothe v. Bryan, 103 Mo. App. 409 (1903), though he 's not bound to do so in the manner most convenient to the owner of the nuisance, it being the interests of the person aggrieved which must prevail. Great Falls Co. v. Worster, 15 N. H. 412 (1844) ; McKeesport Sawmill Co. v. Pennsxlvania Co., 122 Fed. 184 (1903). Only so much of the offending things as constitute the nuisance can be removed, Moffett v. Brewer, 1 G. Greene 348 (Iowa 1848) : Moodv v. Xi- acjara, 46 Barb. 649 (\. Y. 1866) ; Dyer v. Depiii, 5 Whart. 584 (Pa. 1840) ; nor can the offending structure be destroyed, if its removal will abate the nuisance, Smart v. Commonwealth, 27 Grat. 950 (Va. 1876), nor can a stuc- ture be removed, Morrison v. Marquardt, 24 Iowa 35 (1868), or a pond filled up, Finley v. Hershey, 41 Iowa 389 (1875), if its offensive character can otherwise be remedied. So while one, over whose land the branches of a neighbor's trees extend, may cut off the intruding branches, Grandona v. Lovdal, 70 Gal. 161 (1886) ; Robinson v. Clapp, 65 Conn. 365 (1895) ; Hickey V. Mich. Cen. R. Co., 96 Mich. 498 (1893), he may not cut down the trees. Grandona v. Lovdal, 70 Gal. 161 (1886) ; Hickey v. Mich. Cen. R. Co., 96 Mich. 498 (1893). So a building cannot be destroyed because it is so used as to create a nuisance, "the remedy is to stop such use," Woodward, J., in Barclay v Commonwealth, 25 Pa. St. 503 (1855) ; Earp v. Lee, 71 111. 193 (1873) ; Brown V. Perkins, 12 Gray 89 (Mass. 1858): State v. Paul, 5 R. I. 185 (1858); State v. Keeran, 4 R. I. 497 (1858) ; Moody v. Niagara, 46 Barb. 659 (X, Y. 1866), unless such use cannot be stopped save by the destruction of the building, Harvey v. Dewoody, 18 Ark. 252 (1856), a wooden shanty fre- quented by vagrants. And one assuming to abate a condition or structure as a nuisance, takes the risk of proving to the satisfaction of the jury that it is in fact a nuisance, HARROWER V. RITSON. 94I entry upon the plaintiff's land was lawful; to abate the nuisance for the wrong done was the wrong of the plaintiff.- And if water flows juxta villam and is stopped, any one in the vill may tear down the obstruction, &c., or otherwise the whole vill would be surrounded, &c. And if a man wrongfully imprisons me in his house, I may break the windows and hedge to escape, &c., for in all these cases it is the plaintiff's wrong, and so here. Needham, J. If a man puts up a house to the nuisance of my house, I may be in my own house or land and pull down his house, and justify this ; so in this case the defendant shall not be punished for pulling down the house nor removing the stakes ; but as to the entry upon the land, this action is not brought for the entry, &c. ; wherefore, &c. ; but I think the entry is not lawful. Danby, C. J. And, sir, in the case at bar the removal of the stakes seems lawful ; for supposing the defendant were tenant for years, he could not have an assize of nuisance ; and if he brought trespass he would recover damage for the wrong done before the purchase of the writ, and a nuisance, notwithstanding such suit, would continue; and so it would be mischievous if he could not abate the nuisance. And the opinion of all the judges was, that the destruction of the house was lawful, qiicure as to the entry. Littleton said that Danby was of opinion that the entry was lawful, &c., wherefore, if a man makes a ditch in his land, by which the flow of water to my mill is diminished, I may refill the ditch with the earth dug up, &c.^ H.vJ. HARROWER v. RITSON. Supreme Court of the State of New York, 1861. 37 Barb. Rep. 301. Allen, J. The encroachment of the plaintiff's fence upon the highway was, it would seem, hardly disputed upon the trial. The only question of fact upon which conflicting evidence was given was whether the fence was an obstruction to the travel, and in- terfered with the use of the road by the public. And upon this branch of the case several witnesses, in behalf of the plaintiffs, testified that the fence torn down did not and could not interfere with the travel west of the angle; and all the testimony was that Tissot V. Great Southern Tel. Co., 39 La. Ann. 996 (1887). and see Shars- wood, J., in Fields v. Stokley, 99 Pa. St. 306 (1882) ; and Reed v. Scety. U Pa. Co. Ct. 529 (1893), municipal officer.s abating public nuisances without authority of the municipal legislative councils. -Accord: Mayhew v. Burns, 103 Ind. 328 (1885); Lancaster Turnpike Co. v. Rogers, 2 Barr 114 (Pa. 1845), scmhle; Amoskeag Mfg. Co. v. Good- ale, 46 N. H. 53 (1857) ; Larson v. Furlong, 63 Wis. 22i (1885). ^So in Y. B., 8 Edw. IV, 5, pi. 15 (1468), that Choke, J., held that by common law, I may abate a house upon another's land so built as to cause the water to run upon my land, and Danby said, "That if water runs upon the land of M. and M. stops the water from its course, so that it surrounds my land, I can well abate that which stops it, and to my mind he shall not have an action for the entry into his close, because that is bv his own wrong." 942 HARROWER V. RITSON. at the angle and with the fence a single team could easily and safely pass, and that without the fence two teams could not pass. The fence was undoubtedly, upon the finding of the jury, an encroachment upon the highway, which might have been removed by proceedings under the statute, (i R. S. 521.) It was also a public nuisance, and indictable as such. (4 Bl. Com. 167.) And had the plaintiffs been indicted for erecting the nuisance, the charge of the judge would have been strictly accurate. It would have constituted no defense that travel was not entirely obstructed and hindered. The public have the right to the entire width of the road — a right of passage in the road to its utmost extent, unob- structed by any impediment. The plaintiffs could not lawfully by their fence render the passage over the road less convenient or safe than it would have been, but for the encroachment. (People v. Cunningham, i Denio, 524. King v. Rtissell, 6 East, 427. Per Denio, Ch. J., Davis v. Mayor of New York, 14 N. Y. Rep. 524.) "Any permanent or habitual obstruction in a public street or high- way is an indictable nuisance, although there be room enough left for carriages to pass." (See also Rex v. Lord Grosvenor, 2 Stark. 511 ; Queen v. Betts, 16 Q. B. Rep. 1022.) If every indictable nui- sance~may be abated by any one, upon his own motion, who chooses to take the law into his own hands, the justification of the defend- ants was completed, and the court properly refused the instructions asked for, to the eflfect that an individual was not authorized to abate the nuisance by the removal of the fence, unless it interfered with the use of the road. The claim is that the erection and main- tenance of the nuisance being a misdemeanor, any one may abate it, as it is for the interest of the public that it should not exist. If this is so, it is the only case where, in the absence of any necessity, the vindication and execution' of the law are devolved upon the private citizen; and I have found no case that goes this length. The doctrine would tend, manifestly, to breaches of the public peace, and might lead to the oppression of wrongdoers, which should be guarded against. Private nuisances may be abated by the indi- viduals aggrieved by them. (3 Bl. Com. 5, 2 Bouv. Inst. 574.) And public nuisances should only be subject to abatement by one especially aggrieved by them. Blackstone says : "If a new gate be erected across the public highway, which is a common nuisance, any of the king's subjects passing that way may cut it down and destroy it." The reason assigned is, that the injury requires an immediate remedy. (3 Black. Com. 6.) The instance given is that of a total obstruction of the road by the erection of a gate across it, rendering its destruction by the passerby a necessity. Mr. IIBrogm, commenting on and explaining this passage from Black- . £tone, says that to justify a private individual in abating, on his ^wn authority, such a nuisance, it must appear that it does him a special injury; and he can only interfere with it as far as may be jnecessary to exercise his passing along the highway with reasonable V J convenience, and not because the obstruction happens to be there. v( (Broom on Com. Law, 250.) The Mayor &c. of Colchester v. HARROWER V. RITSON. 943 Brooks, (7 Q. B. Rep. 339) was an action on the case for injuring the plaintiff's oyster beds in a river, by improper navigation of the defendant's vessels. * * * The Court of Queen's Bench held that although the oysters were placed in the channel of a public nav- igable river so as to create a public nuisance, a person navigating was not justified in damaging such property by running his vessel against it, if he had room to pass without so doing; for an individual could not abate a nuisance if he was not otherwise injured by it than as one of the public ; and therefore the fact that such property was a nuisance was no excuse for running upon it negligently. Lord Denman, Ch. J., delivered the opinion of the courf7"aTT3 says' if there was abundance of room and of water for the vessel to have passed up without going near the alleged nuisance, "however wrong- ful the act of the plaintiff, yet, as the defendant sustained no special inconvenience thereby, he certainly could not have been justified in wilfully infringing upon or destroying the oysters, even for the purpose of abating the nuisance." Again, "In the case of a private nuisance, the individual aggrieved may abate, (3 Black. Com. 5,) so as he commits no riot in doing it ; and a public nuisance be- comes a private one to him who is specially and in some particular way incommoded thereby, as in the case of a gate across a high- way which prevents a traveler from passing, and which he may cherefore throw down; but the ordinary remedy for a public nui- sance is itself public, that of indictment ;^ and each individual who is only injured as one of the public, can no more proceed to abate t haJi-lielcaa--bri n^ an action." The same principle was distinctly reaffirmed in Dimes v. Petley, (15 Q. B. Rep. 276,) Lord Campbell, ^ While it is generally stated that the remedy for a purely public nuisance is by indictment, Griffith v. McCulhim, 46 Barb. 561 (N. Y. 1866) ; Earp v. Lee, 71 111. 193 (1873), unless some other remedy is provided by statute, and while it is held that, where the statute declaring the nuisance prescribes the method of removing it, such method is the exclusive remedy, Brozvn v. Perkins, 12 Gray 89 (Mass. 1858) ; Hamilton v. Coding, 55 Maine 419 (1867), yet it is held in many cases that public authorities, charged with the duty of care of highways, Reynolds v. Urban Council, &c., L. R. 1896, 1 Q. B. 604, may abate any unlawful obstruction of such highway, Neal v. Cilmore, 141 Mich. 519 (19(35), such obstruction being said to be a special grievance to him by reason of his duty, and municipal authorities have been held en- titled to remove obstructions interfering with the use of public wharves, etc., Hart V. Albany, 9 Wend. 571 (N. Y. 1832), pp. 590 and 609; McLean v Mathews, 7 111. App. 599 (1880) ; Cnnter v. Ceary, 1 Cal. 462 (1851), semblc A municipality has the power to abate nuisances under the police power delegated to it by its charter or by statute, Baker v. Boston, 12 Pick. 184 (Mass. 1831), and cases cited Cent. Dig. Vol. 36, Municipal Corporations, § 1371. "A municipality may, with a strong hand, abate a public or common nuisance, which endangers either the health or safety of its citizens" — Pax- son, C. J., in Easton &c. Pass. R. Co. v. Easton, 133 Pa. St. 505 (1890), p. 520; Fields v. Stokley, 99 Pa. St. 306 (1882). the mayor of Philadelphia held entitled to tear down wooden shanties adjacent to the grounds and buildings of the Centennial Exhibition, and threatening them with imminent danger of a conflagration; Harvey v. Dewoody, 18 Ark. 252 (1856), vacant wooden building, frequented by reckless and disorderly persons, torn down by order of the mayor and town council. 944 HARROWER t'. RITSON. Ch. J. delivering the judgment of the court, in which he says: "Now it is fully established by the recent cases, (citing them,) that if there be a nuisance in a public highway a private individual cannot of his own authority abate it, unless it does him a special injury; and he can only interfere with it as far as it is necessary to exercise his right of passing along the highway ; and without considering whether he must show that the abatement of the nui- sance was absolutely necessary to enable him to pass, we clearly think that he cannot justify doing any damage to the property of the person who has improperly placed the nuisance in the high- way, if, avoiding it, he might have passed on with reasonable con- venience." One who is injured by an obstruction placed unlaw- fully in a highway cannot maintain an action for damages, if it appears he did not use ordinary care by which the obstruction might have been avoided. (Irz'in v. Sprigg, 6 Gill, 200. Smith v. Smith, 2 Pick. 621. Davies v. Mann, 10 Mees. Sz: Wells. 545.) The precise question presented here was considered and decided in Bateman v. Bluck, (18 Q. B. Rep. 870,) which was trespass for entering the plaintiff's close and pulling down a wall therein. Plea that the close was a public pavement within the metropolitan paving act of 57 Geo. III., ch. 29 ; that the plaintiff unlawfully, and con- trary to the act, erected thereon the said wall ; and because the wall incumbered the pavement, and the plaintiff refused, on the de- fendant's request, to remove the same, the defendant entered and pulled it down. And it was held, on motion for judgment non ob- stante veredicto, that the plea was bad for not showing that it was absolutely necessary for the defendant, in order to exercise the al- leged right of passage, to remove the wall. In Arnndell v. McCul- loch, (10 Mass. Rep. 70,) the navigation of a navigable river was obstructed by a bridge erected by the plaintiffs, and the bridge was removed by the defendant to facilitate the passage of a vessel be- longing to him, built above the bridge, and as little damage was done to the bridge as was possible. The court held the defendant justi- fied ; saying, "Here nothing more was done than was necessary to procure a safe passage for the defendant's vessel." The question has not been directly passed upon by the courts of this state, but general expressions of judges have led to the in- ference that every common nuisance which was indictable might be abated by any individual ; that indictment, and abatement by indi- vidual action, were concurrent remedies for all public nuisances. And in Hart v. Mayor of Albany, (9 Wend. 571,) some of the members of the court for the correction of errors were of the opin- ion that any person might abate a common nuisance, whether he was specially aggrieved by it or not. But it was not necessary to pass upon it, as the defendants had full power to remove all ob- structions from the river and harbor, under the city charter. And the reporter, in the head note to the case, leaves the proposition in this form : "Whether an individual without being specially ag- grieved, has a right to abate or remove such nuisance, qiiceref'^ -A part of the opinion discussing the cases of Rogers v. Rogers, 14 Wend. HARROWER V. RITSON. 945 If the unqualified right exists, and any person may of his vo- htion and without process of law abate a public nuisance upon the peril only of showing in justification that the property destroyed or removed is a nuisance, and indictable as such, there can be no distinction made as to the kind or character of the nuisance. It may be a particular trade, which is only obnoxious because carried on in a particular place or in a particular manner f it may be some- thing which affects the health, or the air, or renders the enjoyment of property uncomfortable, or depreciates the value of property ; or it may be something which tends to a breach of the public peace — a disorderly house, a gaming house, or a hospital,'* as well as the obstruction of a navigable river, or a public highway, or the in- closure of a common. To suffer any one, without necessity, to become the executor of this branch of the common law, without the intervention of the ordinary forms of law and a resort to the process of the courts, would tend to gross injustice, breaches of the peace and riots, and the remedy would be worse than the evil to be redressed. But if individual action, in the abatement of miisances, be restricted and the power qualified and limited as by the English cases, and thus cited from the courts of some of the United States, no serious mischief can arise, and none of which the wrongdoer has a right to complain. An individual aggrieved by a private nuisance may have his action, or he may abate the nuisance.^ A party sustaining a special injury from a public or common nuisance may also have his action, and in the like case he may abate the nuisance. In the language of Lord Campbell, it be- 131 (N. Y. 1835) ; Wetmore v. Tracy, 14 Wend. 250 (N. Y. 1835), and Ren- zvick V. Morris, 3 Hill 621, 7 Hill 575 (N. Y. 1844), and holding the statements asserting a general right of abating public nuisance, contained therein, to be mere dicta, is omitted. ^ When the nuisance consists in the use of a building, and not its physi- cal character or condition, the proper remedy is the termination of the wrong- ful use, and not the removal or the destruction of the building, Brown V. Perkins, 12 Gray 89 (Mass. 1858) ; State v. Paul, 5 R. I. 185 (1858) : State V. Kcerait, 4 R. I. 497 (1858) ; Moody v. Niagara Co.. 46 Barb. 659 (X. Y. 1866) ; Barclay v. Commonwealth, 25 Pa. St. 508 (1855) ; but see Harvey v. Dewoody, 18 Ark. 252 (1856), where the improper use could practically not be prevented except by destroying the building. * So it is held that private individuals cannot destroy whiskey, kept for sale against a statutory prohibition, whether the statute declares such keep* ing a nuisance or not. Brown v. Perkins, 12 Gray 89 (Mass. 1858) ; Hamil- ton v. Coding, 55 Maine 419 (1867) ; nor tear down a building where such whiskev is kept. Brown v. Perkins, 12 Gray 89 (Mass. 1858) ; Earp v. Lee. 71 111. 193 (1873) ; State v. Paul, 5 R. I. 185 (1858) ; State v. Kceran, 4 R. I. 497 (1858) ; or which is used in a manner to be a nuisance by common law or by statute, Moody v. Niagara Co., 46 Barb. 659 (N. Y. 1866), affirmed under the name of Ely v. Niagara County, 36 N. Y. 297 (1867), a bawdy- house destroyed by a mob; Welch v. StowcU, 2 Dougl. ZiZ (Mich. 1849). * The right to abate is usuallv said to exist if, and only if, there is a right of action for damages, Watts v. Norfolk & W. R. Co., 39 W. Va. 196 (1894) : Priewe v. Pitzsimmons &c. Co., 117 Wis. 497 (1903). "In the case of a pri- vate nuisance," says Marvin, J., in Griffith v. McCulluni, 46 Barb. 561 (N. Y. 1866), p. 569, "the aggrieved party has his election of remedies. He may re- move the nuisance or he may have his action for the private damages sus- tained by him. He cannot have both remedies." So, as he has no right 3f ac- 046 HARROWER 7'. RITSON. comes to him a private nuisance. He may remove that which in- terferes with his right, to the extent necessary to the reasonable enjoyment of the right of which the thing interposed would de- prive him, doing no unnecessary damage. A party, by erecting a nuisance, does not put himself, or his property, beyond the protec- tion of the law. If an individual or member of the community can with reasonable care, notwithstanding the act complained of, enjoy the right of franchise belonging to him, he is not at liberty to de- stroy or interfere with the property of the wrongdoer. In this case, whatever might have been proper had the plain- tiffs been on trial upon an indictment for the nuisance, the requests of their counsel were proper, and the instructions should have been given to the jury as asked for.*' The justification of the defendants was limited by the necessity of the case, and if the use of the road was not interfered with, the defendants were trespassers in re- moving the fence. The instructions asked were substantially the same as those given in Renzuick v. Morris. The judgment must be reversed, and a new trial granted; costs to abide the event. Bacon and Mullin, Justices, concurred. tion for a condition which threatens merely possible injury at some future time, he cannot abate it, Gates v. Blincoe, 2 Dana 158 (Ky. 1834) ; Moffett v. Brewer, 1 G. Greene 348 (Iowa 1848) ; Toledo, St. L. & K. R. Co. v. Loop, 139 Ind. 542 (1894) ; Gra7'es v. Shattuck, 35 N. H. 257 (1857); Priewe v. Fitz- simmons, 117 Wis. 497 (1903), unless the condition or structure, though causing no immediate tangible loss or inconvenience, constitutes "an infringe- ment of his right which might ripen into an easement," when, since an action would lie for nominal damages, the person whose right is infringed may enter and abate it, Amoskcag Mfg. Co. v. Goodale, 46 N. H. 53 (1857) ; see also, the cases recognizing a general right in an}- member of a community to remove gates or fences erected by landowners across public rights of way over their lands. Brake v. Crider, 107 Pa. St. 210 (1884), semble. So, since, with certain exceptions no action lies against a vendee or lessee, who omits to remove a nuisance created by his vendor or lessor, until notice is given him to remove it, Penriiddock's case, 5 Coke 101a (1597) ; Johnson v. Lewis, 13 Conn. 303 (1839), such a nuisance cannot be abated until such notice is given, Jones V. IVilliams, 11 M. & W. 176 (1843). But one, whose right as a member of the public to pass along highways, or navigate rivers or streams, is obstructed, is held entitled to remove the obstruction, yet the mere obstruc- tion of such right is not of itself held sufficient private damage to support an action for damages. ®"The court was requested to charge, 1. That a mere encroachment on the road by the fence did not authorize the removal of the fence by the de- fendants, unless it hindered, impeded or obstructed the use of the road by the public; and 2d. That an encroachment of a fence upon the road is not a public nuisance, so as to authorize an individual to abate it, unless it inter- feres with the use of the road by the public." "These instructions were refused, on the ground that it was not such a case; although there might be cases where persons might interfere with a mere encroachment, and that this amounted to an obstruction if it was within the limits of the highway as actually fenced and used. That the de- fendants had a right to the full width of the road as fenced and used, al- though they may have been able to get by the obstruction without any serious inconvenience. The plaintiffs had no right to narrow the road, and if they did put their fence in the road, the defendants could remove it, doing no unnecessary damage " PATTERSON V. NUTTER. 947 Morgan, J- (dissenting.) By the common law, any encroach- ment or incumbrance upon the highway, by which it is rendered less commodious to the people, is a public nuisance, and may be abated without suit, (i Haw. P. C. 212.) Every portion of the road, as laid out and used, is dedicated to the public and cannot be obstructed so as to interfere with the public travel over such portions, although there may be room to pass on the opposite side. (Id. 365. 16 Vin. Abr. tit. Nuisance, W.) There may be excep- tions to this rule, but they have only been allowed in cases where the pretended obstructions were temporary, or the alleged en- croachment was beneficial. It is upon this ground that ornamental trees are considered a public benefit, instead of an obstruction. But there is no allegation of benefit here, and by the finding of the jury the plaintiffs' fence was placed within the limits of the high- way. It is now said that teams could have passed on the other side without difificulty, or at least the jury might have found so by their verdict. But this is not the test. New trial granted.'^ (d) Use of force necessary for the preservation of discipline. S- PATTERSON v. NUTTER. Supreme Judicial Court of Maine, 1886. 78 Maine Reports, 509. Emery, J. Free political institutions are possible only where the great body of the people are moral, intelligent and habituated to self-control, and to obedience to lawful authority. The per- manency of such institutions depends largely upon the efficient in- ' In the following cases it is held that a public nuisance can only be abated by a private individual if he be specially injured' or aggrieved, or is especially impeded in the exercise of his rights. Obstructions in the highway not seriously interfering with the defend- ants' convenient use thereof or impeding his passage, Clark v. Lake St. Clair &c. Ice Co., 24 Mich. 508 (1872) ; Corthell v. Holmes, 87 Maine 24 (1894); Hopkins v. Crombie, 4 N. H. 520 (1829), the structure removed, though not interfering with the convenient use of the highway, was an en- croachment thereon, and, as such, was by statute declared to be a public nuisance; but see Lancaster Turnpike Co. v. Rogers, 2 Barr. 114 (Pa. 1845), where it was held that a landowner could remove an abandoned toll-house, built partly on her land and partly on an adjacent highway, though it did not appear that it interfered with her convenient use thereof. Obstructions to navigation in navigable rivers and streams; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44 (1864), semble, a bridge company held to have no right to destroy another's bridge, though it obstructed navigation ; Gumhcrt v. Wood, 146 Pa. St. 370 (1891) ; Shaw, C. J., in Brown v. Perkins, 12 Gray 89 (Mass. 1858) ; Griffith v. Holman, 23 Wash. 347 (1910), semble; Watts V. Norfolk & W. R. Co., 39 W. Va. 196 (1894), p. 212, semble; Larson V. Furlong, 50 Wis. 681 (1881). A building, a nuisance because injurious, in itself or as used, to the public peace, good order or morals, see cases cited in Notes 3 and 4 and see also Bowden v. Lewis, 13 R. I. 189 (1881) ; Fields v. Stokley, 99 Pa. St. 306 (1882); Klinger v. Bicket, 117 Pa. St. 326 (1887), semble. Contra: Meeker 948 PATTERSON V. X UTTER. striiction and training of children in those virtues. It is to secure this permanency that the state provides schools and teachers. School teachers, therefore, have important duties and functions, ^luch depends upon their ability, skill and faithfulness. They must train as well as instruct their pupils. R. S., c. 11, § 97. The acquiring of learning is not the only object of our public schools. Tc become good citizens, children must be taught self-restraint, obedience, and other civic virtues. To accomplish these desirable ends, the master of a school is necessarily invested with much discretionary power. He is placed in charge some times of large numbers of children, perhaps of both sexes, of various ages, temperaments, dispositions, and of various degrees of docility and intelligence. He must govern these pupils, quicken the slothful, spur the indolent, restrain the impetu- ous, and control the stubborn. He must make rules, give com- mands, and punish disobedience. What rules, what commands, and what punishments shall be imposed, are necessarily largely within the discretion of the master, where none are defined by the school board. In State v. Pendcrgrass, 2 D. & B. (N. C.) 365, (S. C. 31 Am. Dec. 416), it was said: "One of the most sacred duties of parents is to train up and qualify their children for be- coming useful and virtuous members of society ; this duty cannot be effectually performed without the ability to command obedience, to control stubbornness, to quicken diligence and to reform bad habits ; and to enable him to exercise this salutary sway, he is armed with the power to administer moderate correction, when he shall V. VanRensseJaer, 15 Wend. 397 (N. Y. 1836), individuals held entitled to tear down, during an epidemic of Asiatic cholera, a filthy and overcrowded tenement house. ^Nlany of the earlier cases contain dicta following Blackstone's broad assertion of a right in any one to abate a public nuisance, but in every case the nuisance was abated by the municipal authorities, Hart v. Albany, 9 Wend. 571 (X. Y. 1832) ; Rung v. Schoneberger, 2 Watts 23 (Pa. 1833) ; Harvey v. Dewoody, 18 Ark. 252 (1856) ; or the thing abated was held to be no nuisance, Gunter v. Geary, 1 Cal. 462 (1851), note 1; Graves v. Shattiick, iS N. H. 257 (1857); Bumham v. Hotchkiss, 14 Conn. 311 (1841); Rogers v. Rogers, 14 Wend. 131 (N. Y. 1835) ; Low v. KnowUon, 26 Maine 128 (1846). In the following cases one specially aggrieved by a public nuisance may abate it; obstructions interfering with the convenient use of a highway, James v. Hayward, Cro. Jac. 184 (1630) ; Hubbard v. Deming, 21 Conn. 356 (1851) ; Marcy v. Taylor, 27 111. 634 (1858) ; Corthcll v. Holmes, 88 Elaine 376 (1896) ; Pontiac &c. Plank Road Co. v. Hilton, 69 Mich. 115 (1888) ; Griffith V. McCulhim, 46 Barb. 561 (N. Y. 1866) ; Dimmett v. Eskridge, 6 Mumf. 308 (Va. 1819) ; Goodsell v. Fleming, 59 Wis. 52 (1883) ; and see Shea v. Sixth Ave. R. Co., 62 N. Y. 180 (1875), where the plaintiff was held to have the right to pass over the platform of a street car, stopped so as to block the crossing, and the conductor had no right to resist her passage ; or which interferes with the defendant's access to his abutting premises ; obstruction to the defendant's navigation of a river or stream, Philiber v. Matson, 14 Pa. St. 306 (1850) ; Beach v. Schoff, 28 Pa. St. 195 (1857) ; State v. Parrott, 71 N. Car. 311 (1874) ; Selman v. Wolfe, 27 Tex. 68 (1863) ; Larson v. Fur- long, 63 Wis. 323 (1885), excavation in street from which the water, col- lected therein, flowed upon the defendant's land, State v. Smith, 52 Wis. 134 (1881). PATTERSON V. NUTTER. 949 believe it to be just and necessary.^ The teacher is the substitute of the parent ; is charged in part with the performance of his duties, and in the exercise of these delegated duties, is invested with his power. ^ The law has not undertaken to prescribe stated punishments for particular offenses, (by a pupil) but has contented itself with the general grant of the power of moderate correction, and has confided the graduation of punishments, within the limits of this grant, to the discretion of the teacher." This power of moderate correction unquestionably includes corporal punishment. Authorities are not needed for this proposi- tion. The subject was incidentally considered in Stevens v. Fas- sett, 27 jNIaine, 296, and it was declared by this court, through Judge Shepley, that personal chastisement was lawful in our schools, and was properly resorted where milder means of restraint were unavailing. Indeed, the plaintiff's counsel does not question that personal chastisement has been the practice, and has often been ^ As to the limits of the right of a parent, or one in loco parentis, to corporally punish his child, see State v. Alford, 68 N. Car. 322 (1873) ; State V. Jones, 95 N. Car. 588 (1886) ; People v. Green, 155 Mich. 524 (1909), with valuable note; State v. Koonse, 123 Mo. App. 655 (1907); Clasen v. Prtihs, 69 Nebr. 278 (1903); and see U'interhurn v. Brooks, 2 Car. & Kirw. 16 (1846). In Smith v. Slocum, 62 111. 354 (1872), a father, as the head of a household, is held to have the right to employ the force necessary to pre- serve good order and propriety of his household, and may remove from the room a grown daughter who is quarreling with the servant and slandering her step-mother, and who, after being told to go to her room, refuses to do so. No civil action for personal injury of any sort will lie by the child against his parent so long as the relation continues, Hewlett v. George, 68 Miss. 703 (1891) ; Foley v. Foley, 61 111. App. 577 (1895) ; McKelvey v. Mc- Kelvey, 111 Tenn. 388 (1903) ; all cases of assault for excessive and cruel discipline; Roller v. Roller, Z7 Wash. 242 (1905), assault for rape by father. In Fortinbcrry v. Holmes, 89 Miss. 373 (1906), it was held that a woman to whom the child's mother gave it to support and treat "as her own" stood in loco parentis, and was not liable to an action by the child for cliastising it, though the mother had given instructions that the child was not to be whipped. But the parent, if he exercises his rights improperly, may be punished criminally, cases cited supra, or be deprived of the custody and control of the child, Cunningham's Case, 61 N. J. Eq. 454 (1901). In Clasen v. Pruhs, 69 Nebr. 278 (1903), it was held that where a child had been chastised by an aunt standing to her in loco parentis, she might m.aintain an action against such person after the relation had terminated; and in Treschman y. Treschman, 28 Ind. App. 206 (1901), a step-daughter successfully maintained an action against her step-mother. - So Cockburn, C. J., says, in ^Fitzgerald v. Northcote, 4 F. & F. 656 (1865), p. 689, "A parent when he places his child with a schoolmaster, he delegates to him all his authoritv so far as it is necessary for the welfare of the child"; and see Manscll v. Griffin, L. R. 1908, 1 K. B. 160, per Walton, J., p. 169, holding that the fact that the school regulations, not known to her parent, forbade corporal punishment, did not make moderate punishment wrongful. In Lander v. Seaicr, 32 Vt. 114 (1859), p. 123. it is held that the school- master "cannot be safely trusted with all a parent's authority, for he does not act from the instinct of parental affection." As to the liability of the head of a religious community to whom the child's parent has, in common with the other parents in the communitv, sur- rendered her right of punishment, see Donnelley v. Territory of Arizona, 5 Ariz. 291 (1898). ge^O PATTERSON V. NUTTER. declared to be lawful. He eloquently urges, however, that corporal punishment is a "relic of barbarism,'' that it has been abolished in the army and navy, and has been forbidden in many schools by school boards. He urges that the greater humanity and tender- ness of this age should not tolerate it in any schools, and that the courts of this day should recognize it as a proper mode of school punishment. Whatever force this argument might have with legis- latures or school boards, it should not move the court from the well established doctrine. The extent of the school-master's discretion in the exercises of this power of personal chastisement, is the only question here ; and upon this question we think the law is well and correctly stated in Lander v. Seaver, 32 Vt. 114, as follows: '*A school-master has the right to inflict reasonable corporal punishment. He must ex- ercise reasonable judgment and discretion, in determining when to punish and to what extent. In determining what is reasonable punishment, various considerations must be regarded, the nature of the offence, the apparent motive and disposition of the oft'ender, the influence of his example and conduct upon others, and the sex, age, size and strength of the pupil to be punished. Among rea- sonable persons much dift'erence prevails as to the circumstances which will justify the infliction of punishment, and the extent to which it may properly be administered. On account of this differ- ence of opinion and the difficulty which exists in determining what is a reasonable punishment, and the advantage which the master has, by being on the spot, to know all the circumstances, the man- ner, look, tone, gestures and language of the oft'ender, (which are not always easily described) and thus to form a correct opinion as to the necessity and extent of the punishment, considerable allowance should be made to the teacher by the way of protecting him in the exercise of his discretion. Especially should he have this indulgence when he appears to have acted from good motives and not from anger or malice. Hence the teacher is not to be held liable on the ground of the excess of punishment, unless the pun- ishment is clearly excessive, and would be held so in the general judginent of reasonable men. If the punishment be thus clearly excessive, then the master would be liable for such excess, though he acted from good motives in inflicting the punishment, and in his own judgment considered it necessary and not excessive;^ but ^He is equally liable if the punishment is inflicted without proper cause, Anderson v. State, 3 Head 455 (Tenn. 1859) ; State v. Mizner, 50 Iowa 145 (1878), child punished for not studying subjects which his parent had di- rected that he should not study; State v. Vanderbilt, 116 Ind. 11 (1888), child punished for not paying for school property destroyed by it, the regu- lation requiring such payment being held unreasonable, it being also inti- mated that a child may not be punished for carelessness, in which_ there is no purpose to do wrong, compare Heritage v. Dodge, 64 N. H. 297 (1886). Morrow v. Wood, 35 Wis. 59 (1874), child punished for acts outside of a teachers jurisdiction, but a child mav be punished for acts done outside the school, Cleary v. Booth, (1893) 1 Q. B. 465; Bolting v. State, 23 Tex. App. 172 (1887), where the acts directly tend to injure the school disciphne, Lander PATTERSON V. NUTTER. 951 if there be any reasonable doubt whether the punishment was ex- cessive, the master should have the benefit of the doubt."* The foregoing statement of the law is well supported by the authorities cited in the notes to that case, in 76 Am. Dec. 163. Now comparing the judge's rulings in this case with the above clear exposition of the law, it will be seen that in one respect at least, there was error. It is true the master should be held to have exceeded his discretion and thus become liable as a trespasser, un- less the punishment is clearly excessive ; but the judge ruled that the punishment must be so clearly excessive "that all hands would at once say it was excessive." The correct rule holds the teacher liable if he mlTrcts a punishment which the general judgment of such men, after thought and reflection, would call clearly excessive. The rule_given_at_the, trial of this case, however, would permit a teacher to proceed in severity of punishment until it became so great as to excite the instant condemnation of all men, the stupid and ignorant as well as the rational and intelligent. Such a ruling is clearly wrong and there should be a new trial. Exceptions sustained, ^ew trial granted. v. Seaver, 32 Vt. 114 (1859). The master has no right to punish a pupil who is ignorant of the reason for it, State v. Mizner, supra. * Accord: Sheehan v. Sturges, 53 Conn. 481 (1885); Cooper v. McJun- kin, 4 Ind. 290 (1840), with which compare Vanvactor v. State, 113 Ind. 276 (1887); Commonwealth v. Randall, 4 Gray 36 (Mass. 1855); Haycraft v. Grigsby, 88 Mo. App. 354 (1901) ; Lander v. Seaver, 32 Vt. 114 (1859), and see Kelt's case, cited in 3 Salk. 47 (1692), and Fitzgerald v. Northcote, 4 F. & F. 656 (1856), and Regina v. Hopley, 2 F. & F. 202 (1860). On the other hand, many cases hold that, like a parent, a schoolmaster is the sole judge as to, Hentage v. Dodge, 64 N. H. 291 (1886), the necessity for and the severity of the punishment. Boyd v. State, 88 Ala. 169 (1890) ; Fox v. People, 84 111. App. 270 (1899) ; Commonwealth v. Seed, 5 Clark 78 (Pa. 1850) ; State v. Pendergrass, 2 Dev. & B. 365 (N. Car. 1837) ; State V. Jones, 95 N. Car. 588(1886), semble, and he is not answerable for errors of judgment, if he acts in good faith and without malice. In State v. Pendergrass. 2 Dev. & B. 365 (N. Car. 1837), and State v. Jones, 95 N. Car. 588 (1886), it is held that punishment "which may serious- ly endanger life and limb, or health, or shall disfigure the child, or cause any other permanent injury, may be pronounced of itself immoderate, as not only being unnecessary for, but inconsistent with the purpose for which correction is authorized," i. e., the future welfare of the child; and see 1 Hawk, P. C, 261, 473-4. In Boyd v. State, 88 Ala. 169 (1890), the use of such an instrument is regarded as evidence of malice, see Commonwealth v. Seed, 5 Clark 78 (Pa. 1850). So malice mav be inferred from the excessive nature of the beating. State v. Thornton, 136 N. Car. 610 (1904). In all jurisdictions it is an assault and battery to beat a pupil or son un- der pretext of duty. State v. Long, 117 N. Car. 791 (1895) ; or for spite. Com- monwealth V. Ebert, 11 Pa. Dist. Rep. 199 (1901) ; or out of revenge. State v. Thornton, 136 N. Car. 610 (1904), or from caprice, anger or bad temper, Bris- son v. Lafontmne, 8 Lower Can. Jur. 173 (1864) ; or to inflict a cruel punish- ment, Marlsbary v. State, 10 Ind. App. 21 (1833) ; Hathaway v. Rice, 19 Vt. 102 (1846). The right of a master to correct his apprentice though denied in 1481, Anon., Y. B. 21 Edw. IV, 6, pi. 1, on the ground that he might have a writ of covenant for any misconduct, was allowed in the same year in Anon., Y. B. 21 Edw. IV, 53, pi. 17, accord: Commonwealth v. Baird, 1 Ashm. 267 (Pa. 1830), semble, but this right does not extend to the correction of ordinary 952 BROWN V. HOWARD. BROWN, HUSSEY AND ERITH v. HOWARD. Supreme Court of the state of New York, 1817. 14 Johnson's Rep. 118. The defendants in error brought an action, in the Court below, against the plaintiffs in error, for an assault and battery and false imprisonment on the high seas, on board the ship Tea- plant, on a voyage from Liverpool to New York. Brown, the master of the ship, pleaded not guilty, and son assault demesne, and the other two defendants, who were mates on board of the same vessel, pleaded not guilty, and justified that they acted by the orders of Brown, the master. At the trial in the Court below, which was without a jury, five witnesses, who were seamen on board of the same vessel, testified on the part of the plaintiff below, also a seaman on board, that while it was blowing very hard, and the plaintiff and some other of the hands were engaged in hoisting and belaying the foresail, the captain took up a mallet, and after cursing at them, threatened to knock out their brains if they did not exert themselves more ; that they were then ordered aft by the captain to hoist the mizzen staysail, who, having procured a rope about half an inch thick, violently struck the sailors, and attacked the plaintiff below, and gave him eight or ten blows with the rope ; that the plaintiff below asked him what he meant by such conduct, whereupon the captain again attacked him, and struck him a number of blows, and then endeavored to force him to go aloft to slush the skysail mast, a thin spar where there was nothing to hold by but the mast itself, and where, from the roughness of the sea, a man could not go with safety ; that the plaintiff below said that he had been so beaten that he could not hold on, and seized and clung to some part of the rig- ging, the captain still pulling him wnth violence, until he forced him away, and both, by the violence of the captain's effort, and the rolling of the ship, fell upon the deck, the captain upon the plaintiff ; and, the other two defendants being present all this time, the second mate took the captain off from the plaintiff below, and the captain then ordered the two mates to tie the plaintiff' below, hand and foot, which they did, and laid him on the quarter-deck; that the plaintiff remained bound in this manner, without the power of moving himself, exposed to the inclemency of the weather, in the month of March, for five days and nights, except during two nights, when the weather was so very bad that the captain ordered him to be put below ; that after this the plaintiff below was asked by the captain if he would do his duty, to which, on replying in the affirmative, he was released, but was afterwards confined to his berth for some time by rheumatism, and that to relieve him the captain ordered one of the mates to apply some remedy to the part hired servants, Common-wcaJth v. Baird, 1 Ashm. 267 (Pa. 1830) ; Tinkle V. Dmiivant. 16 Lea 503 (Tenn. 1886). BROWN V. HOWARD. 953 affected, which was done accordingly. The justice gave judgment for the plaintiff below, for one hundred and twenty-five dollars. Although a captain may have a right to inflict corporal punish- ment upon a seaman under his command, yet it is not an arbitrary and uncontrolled right : he is amenable to the law for the due exer- cise of it. "'He ought to be able to show, not only that there was a sufficient cause for chastisement, but that the chastisement itself was reasonable and moderate. (2 Bos. & Pull. 224. 3 Day's Rep. 285.) The rule on this subject is well laid down by Abbot. (On Shipping, 125.) By the common law, says he, the master has authority over all the mariners on board the ship, and it is their duty to obey his commands in all lawful matters, relative to the navigation of the ship, and the preservation of good order; and, in case of disobedience or disorderly conduct, he may lawfully correct them in a reasonable manner ; his authority, in this respect, being analogous to that of a parent over a child, or a master over his apprentice, or scholar.^ Such an authority is absolutely neces- sary to the safety of the ship, and of the lives of the persons on board ; but ii behooves the master to be very careful in the exer- cise of it, and not to make his parental power a pretext for cruelty and oppression.^ Not being able to discover, from the return, the least justi- fication for the captain's treatment of the plaintiff below, and the ^ The master's power is not co-extensive with that of the parent or even the schoolmaster, he can only punish for faults, which relate to the duties of the seaman as such, or which tend to subvert the discipline of the ship, but not for general immoralities or improper conduct though tending to injure the discipline of the crew of another ship, Bangs v. Little. 1 Ware 520 (1839). ^The force must be shown to be clearly excessive, Butler v. McLean, 1 Ware 220 (1832) ; Benton v. Whitney, 1 Crabbe 417 (1841), for the reasons which require that the master shall have a wide discretion as to when and how to use violence to maintain discipline, see Ware J. in Bangs v. Little, 1 Ware 520 (1839), and Hopkinson J. in Benton v. Whitney, 1 Crabbe 417 (1841). In Forbes v. Parsons, Crabbe 283 (1839), Hopkinson J. says. p. 288, that recovery should be allowed "first, when personal violence was af- flicted upon him, although not excessively, wantonly and without any provo- cation or cause; second, when provocation and cause were given by the seaman but the punishment was cruel and excessive, having no reasonable proportion to the provocation or fault for which it was inflicted; third, I have always looked with a severe ej'e to the instrument used in punishing." A rope, he regards as the proper punishment, the, fist barely permissible, while the use of a handspike, bludgeon, sword, or other deadly weapon, when there is no appearance of mutiny, Schelter v. York, 1 Crabbe 449 (1841), or stamping upon the seaman when prostrate, are said to be clearly improper. But when there is cause and a proper instrument is used, he says, "I cannot institute a nice or scrupulous comparison between the of- fense of the sailor and the number or violence of the blows inflicted upon him for it." A sailor may be corporally chastised as well as imprisoned in punish- ment for a past offense, The Lozvther Castle, 1 Hagg. Adm. 384 (1825) ; Michaelson V. Dennison, 3 Day 294 (1808); Citv of Mobile, 116 Fed. 212 (1902), though in Padmore v. Piltz, 44 Fed. 104 (1890), it was held that a sailor may not be punished for insubordination, the ship being in a civil- ized port. Except under exceptional circumstances requiring immediate action, punishment should not be inflicted without inquiry and hearing the 954 BROWN V. HOWARD. mates having been acquainted with the whole transaction, I can perceive no ground upon which they can be exonerated as parties, nor, of course, admissible as witnesses. The judgment below must, accordingly, be affirmed. Judgment affirmed. sailor in his own defense, The Agincourt, 1 Hagg. Adm. 271 (1824) ; Mur- ray V. M oniric, 6 C. & P. 471 (1834). The master of a vessel has the right to use force to preserve decent discipline among its passengers, and may imprison a disorderly passenger, Boyce v. Bayliffe, 1 Camp. 58 (1807), but he may not do so merely because such passenger shows him disrespect, King v. Franklin, 1 F. & F. 360 (1858), passenger, during a dispute in regard to playing cards, called the captain "the landlord of a floating hotel"; Aldworth v. Stewart, 4 F. & F. 957 (1866), passenger assaulted and imprisoned for putting his fingers to his nose at the captain in the course of a complaint in regard to the character of the food furnished. Part 2. Acts Harmful to Others Excused Because Freedom of Action or the Act is Regarded as of Social Benefit. CHAPTER I. Conduct Excused Because of the Necessity of Preserving the Independence of the Sovereign in Its Dealings With Other Nations. UNDERHILL v. HERNANDEZ. United States Court of Appeals, 1897. 168 U. S. 250. Hernandez was in command of a revolutionary army in Vene- zuela when an engagement took place with the government forces which resulted in the defeat of the latter, and the occupation of Bolivar by the former. Underhill was living in Bolivar, where he had constructed a waterworks system for the city under a contract with the government, and carried on a machinery repair business. He applied for a passport to leave the city, which was refused by Hernandez witll_3.-^ew to coerce him to operate his waterworks and his repair works for the benefit of the community and the revo- lutionary forces. Subsequently a passport was given him. The revolutionary government under which Hernandez was acting was recognized by the United States as the legitimate government of Venezuela. Subsequently Underhill sued Hernandez in the Circuit Court for the Second Circuit to recover damages caused by the re- fusal to grant the passport, for alleged confinement of him to his own house, and for alleged assaults and alifronts by Hernandez' sol- diers. Judgment being rendered for defendant the case was takeq to the Circuit Court of Appeals, where the judgment was aflfirmed. Thereupon the case was brought to this court on certiorari. Mr. Chief Justice Fuller, after stating the case, delivered, the opinion of the court. Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such 955 C^^6 UNDERHILL Z'. HERNANDEZ. acts must be obtained through the means open to be availed of by sovereign powers as between themselves. Nor can the principle be confined to lawful or recognized gov- ernments, or to cases where redress can manifestly be had through ^public channels. The immunity of individuals from suits brought in foreign tribunals for acts done within their own States, m the exercise of governmental authority, whether as civil officers or as military commanders, must necessarily extend to the agents of gov- ernments ruling by paramount force as matter of fact. Where a civil war prevails, that is, where the people of a couhtry are divided into two hostile parties, who take up arms and oppose one another by military force, generally speaking foreign nations do not assume to judge of the merits of the quarrel. If the party seeking to dis- lodge the existing government succeeds, and the independence of the government it has set up is recognized, then the acts of such government from the commencement of its existence are regarded as those of an independent nation. If the political revolt fails of success, still if actual war has been waged, acts oi legitimate war- fare cannot be made the basis of individual liability. United States V. Rice, 4 Wheat. 246; Fleming v. Page, 9 How. 603 ; Thorington v. Smith, 8 Wall, i ; Williams v. Bruffy, 96 U. S. 176 ; Ford v. Surgett, 97 U. S. 594; Dozv V. Johnson, 100 U. S. 158; and other cases. ^ CHAPTER II. Conduct Excused When Necessary to Secure the Proper Admin- istration of Justice. SECTION 1. Immunity of the Judiciary. Glanville—Book 8, Chapter 9— (Ca. 1,200) Beame's Edition, p. 210. "If any one should declare against the Court for passing a false Judg- ment, and, therefore false, because when one party had said thus, and the other answered thus, the Court in question had judged falsely of their allega- tions by deciding in such words, and that the Court had given such false Judgment by the mouth of N.; and, if he were disposed to deny the present ^"The transactions of independent states between each other are gov- erned by other laws than those which municipal courts administer; sucn •courts have neither the means of deciding what is right, nor the power of enforcing any decision that thev make." Secretary of State in Council of India v. Kamachee Boye Sahaha, 13 Moo. P. C. 22 (1859), p. 75, "The appeal is to the sword and to almighty Justice, and not to courts of law or equity. In the exercise of sovereign right, the sovereign is sole arbiter of his own justice. The penalty of wrong is war and subjugation."— Johnson, J. in Cherokee Nation v. Georgia, S Peters 1 (U. S. 1831), P- 28. Nor can a foreign subject maintain an action against an official for acts ANDERSON V. GORRIE. 957 charge, the other was prepared to prove it against him, chiefly by such proper witness, who was ready to enter upon the proof. Thus may the matter, and that very properly, be decided by the Duel.' But, whether such Court is obliged to defend itself by one of its own members, or may have recourse to a stranger, may be questioned ?"' ANDERSON v. GORRIE. Court of Appeal, 1894. 1895 Law Reports, 1 Queen's Bench Div. 668. Lord Esher, M. R. In this case an action was brought by the plaintiff against several judges of the Supreme Court of a colony for damages for wrongful acts done by them in committing him for contempt of Court, and in holding him to excessive bail. The defendants were judges of a Supreme Court in a colony, and the first question is whether these matters were matters with which they had jurisdiction to deal. As to the contempt of Court, it cannot be denied that they had jurisdiction to inquire whether a contempt had been committed, and, further, it cannot be denied that they had power to hold a person to bail in the cases provided for by the colonial statute which expressly gives that power. These two matters were obviously within the jurisdiction of the Court. No one can doubt that if any judge exercises his jurisdiction from ma- licious motives he has been guilty of a gross dereliction of duty ; but the question that arises is what is to be done in such a case. In this country a judge can be removed from his office on an address by both Houses of Parliament to the Crown. In a colony such an address is not necessary. The governor of the colony represents the Sovereign, and over him is the Secretary of State for the Col- onies, who represents Her Majesty and can direct the removal of the judge. But the existence of a remedy would not in either of these cases of itself prevent an action by a private person ; so that the question arises whether there can be an action against a judge of a Court of Record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the com- mon law of England it is the law that no such action will lie. The ground alleged from the earliest times as that on which this rule injurious to him, if the official's action is done under the antecedent command of his government or is ratified by its subsequent approval and adoption, Riian V. Perry, 3 Caines. 120 (N. Y. 1805) ; Durand v. HoUins, 4 Blatchf. 451 (Dist. Ct. U. S. 1860), property destroyed in bombardment of Greytown, Nicaragua; Bur on v. Denman, 2 Exch. 167 (1848). The Privy Council have regarded the dealings of the East India Com- pany, and the Indian Empire as its successor, with independent native states and their subjects as within this principle, Secretarv of State in Council of India V. Kamachee Boye Sahaba, 13 Moo. P. C. 22 (1859). ' "The liberty of falsifying a Judgment was allowed by the Assises of Jerusalem. But the person, availing himself of this dangerous privilege, seems to have been obliged to fight all the persons composing the Court, not merely the Judges, but the Suitors, one after the other. Under these cir- cumstances, the privilege would, probably, not often be claimed. (Assis. de Jerusalem, c. 111.)" 558 ANDERSON V. GORRIE. rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice. That is the ground stated in Miller v. Hope, 2 Shaw Sc. App. Cas. 125, in the year 1824, by Lord Gifford by his judgment in the House of Lords ; and in 1892, in Haggard v. Pelicier Freres, (1892) A. C. 61, at p. 68, Lord Watson says : "It is due to the appellant to state that the respondents in their pleadings make no imputation of dishon- esty, although their Lordships do not mean to suggest that such an imputation, if it had been made and proved, would have deprived him of the immunity which the law accords to a judge in his posi- tion." Crompton J. in Fray v. Blackburn, 3 B. & S. 576, at p. 578, said: 'It is a principle of our law that no action will lie against a judge of one of the superior Courts for a judiciaT'act, though it be alleged to have been done maliciously and corruptly. * * * The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious ac- tions." The reasons "for the rule were more fully stated by Kelly C. B. in Scott V. Stansiicld, Law Rep. 3 Ex. 220. If a judge goes beyond his jurisdiction a different set of considerations arise. The only difference between judges of the Superior Courts and other judges consists in the extent of their respective jurisdiction.^ It follows from what I have said that, taking the findings of the jury to be true to the fullest extent, the action will not lie against the defendant, and the appeal must be dismissed. Kay, L. J. I am of the same opinion. I take the law to be clear that for an act done by a judge in his capacity of judge he cannot be made liable in an action, even though he acted maliciously and for the purpose of gratifying private spleen. It cannot be de- nied that all the acts complained of were done by the defendant in his capacity of judge, and whether he acted rightly or wrongly ca.n- not be questioned in this action. Agreeing entirely with what the" Master of the Rolls has said, and with the judgment of Kelly C. B. in Scott V. Stansflcld, Law Rep. 3 Ex. 220, I come to the conclusion that this action will not lie.- Appeal dismissed. ^ "There is a marked distinction between courts of general jurisdiction and inferior tribunals having only a special or limited jurisdiction. In the former case, the presumption of law is that they had jurisdiction until the contrary is shown; but with regard to inferior courts and magistrates, it is for them, when claiming any right or exemption under their proceedings, to show affirmatively that they acted within the limits of their jurisdiction." — Bigclow, J. in Piper v. Pearson, 2 Gray 120 (Mass. 1854) ; Lund v. Hennes- sey. 67 111. App. 233 (1896), but see Wright v. Hazen & Gordon, 24 Vt. 143 / f 852 ) ^Accord: Lib. Ass. 27 Ed. Ill, p. 18 (1352) ; Y. B. 9 Hen. VI, 60. pi. 9 (1430) ; Y. B. 9 Edw. IV, 3 pi. 10 (1469) ; 27 Edw. VI, 67, pi. 49 (1572) ; Floyd V Barker, 12 Coke 23 (1608) ; Hammond v. Howell, 2 Mod. 218 (1688), cited in Yates v. Lansing, 5 Johns. 282 (N. Y. 1810), by Kent. C. J.; Fray v Blackburn, 3 B. & S. 576 (1863); Bradley v. Fisher, 13 Wall. 335 (U S. S. C. 1871); Woodruff v. Stewart, 63 Ala. 206 (1879); Borden v MC CREADIE V. THOMSON. 959 McCREADIE v. THOMSON. Court of Session, 1907. 1907 Session Cases, 1176. Lord Justice-Clerk. — This case raises a question of much importance. The pursuer asks for damages from a Magistrate sit- ting in a summary Court on the ground that he sentenced her to im- prisonment without the option of a fine, under a complaint based upon a clause of a statute which did not empower him to pronounce a sentence of imprisonment except as an alternative to the nonpay- ment of a pecuniary penalty, the prayer of the complaint being in terms of the statute. She alleges that although it was pointed out by the clerk as the Court's assessor that such a sentence could not be pronounced, he insisted on inflicting it, on the view that he could deal with the matter, not as it was charged in the complaint, but as constituting an offence at common law, viz., a breach of the peace, State. 11 Ark. 519 (1851); Hughes v. McCoy, 11 Colo. 591 (1888); Elmore V. Overton, 104 Ind. 548 (1885), scmble; Harrison v. Redden, 53 Kans. 265 (1894), where a judge was accused of having notified a defendant of the plaintiff's intention to sue for alimony and having advised him to leave the jurisdiction; Stewart v. Coolev, 23 Minn. 347 (1877), semble ; Yates v. Lan- sing, 5 Johns. 282 (N. Y. 1810); Lange v. Benedict, 72, N. Y. 12 (1878); Ross V. Rittenhouse, 2 Dall. 160 (Pa. 1792), 1 Yeats 443 (Pa. 1795) ; Brodie v. Rutledge, 2 Bay 69 (S. Car. 1796) ; Cope v. Ramsey, 2 Heisk. 197 (Tenn. 1870.) This privilege extends to "every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law," Shaw, C. J., Pratt V. Gardner, 2 Cush. 63 (Mass. 1848), including justices of the peace, magis- trates, etc., Cunningham v. DilUard, 4 Dev. & B. 351 (N.Car. 1839) ; Pepper V. Mayes, 81 Ky. 673 (1884) ; FausJcr v. Parsons, 6 W. Va. 486 (1873) ; Reid V. Hood, 2 N. & McC. 168 (S. Car. 1819) ; Lund v. Hennessev, 67 111. App. 233 (1896) ; Sorensen v. Wellman, 69 Kans. 637 (1904) ; Tylor v. Alford. 38 Maine 530 (1854) ; Cur now v. Kessler, 110 Mich. 10 (1896) ; Stone v. Graves, 8 Mo. 148 (1843) ; Burnham v. Stevens, 33 N. H. 247 (1856) ; Handshaw v. Arthttr, 161 N. Y. 664 (1900); Hanna v. Slevin, 8 Pa. S. C. 509 (1898); Hoggatt v. Biglev, 6 Humph. 236 (Tenn. 1845) ; Gaines v. Newbrough, 12 Tex. Civ. App. 466 (1896); Cooke v. Bangs, 31 Fed. 640 (1887), compare Yates V. Lansing, 5 Johns. 282 (N. Y. 1810). While for a time it seemed to be doubtful whether British judges of courts not of record were liable for malicious or corrupt exercise of their judicial powers, Clerk & Lindsell on Torts, 6th ed. (1912), pp. 808-809, a consular court, which was not a court of record, was held entitled to pro- tection equal to that given such courts. Haggard v. Pelicier Frcres, L. R. 1892 A. C. 61. Some American jurisdictions lay down the rule that a Justice of the Peace or other inferior judge, is not liable unless he acts maliciously or corruptly, Baker v. Morgan, 5 Ky. L. 323 (1883); but see Pepper v. Maxes, 81 Ky. 673 (1884); Gatdt v. JVallis, 53 Ga. 675 (1875); Heath v. Haffhill, 106 Iowa 131 (1898); Knell v. Briscoe, 49 Md. 414 (1878); while m Stewart v. Cooley, 23 Minn. 347 (1877), it is held, while the motives which prompt the judicial action of a judge are imma- terial, he may be liable for participating in a conspiracy with a suitor to injure the plaintiff by the abuse of his judicial function. As to the immunity of public officers, as such exercising quasi-judicial functions, such as tax assessors or selectmen appraising property for taxation. Weaver v. Devendorf, 3 Denio 117 (X. Y. 1846) ; Fawcett v. Dole, 67 N. H. 168 (1891) ; Stearns v. Miller, 25 Vt. 20 (1852), or dividing among churches the rents from land, granted for their use, Univ. Soc. v. Leach, 35 Vt. 108 (1862). a city council awarding contracts, East River, etc., Co. v. Donnelly, 93 N. Y. 557 960 MC CREADIE V. THOMSON, for which he had by law the power to pronounce a sentence of im- prisonment as a direct punishment. That he erred in this cannot be doubted, and that consequently he acted outwith and in excess of his jurisdiction is equally plain. The question now before the Court is whether an action of damages can be competently and relevantly raised against him in these circumstances. We had the advantage of a very able and full argument from the Bar, the one party alleging that a Judge sitting as the defender did is immune from all action at law for damages for anything done by him when sitting in his judicial capacity; the other party main- taining that while such immunity from attack in a Court of law ap- plies to Judges of superior jurisdiction, there is no law to the effect that inferior Magistrates may not be called upon to make reparation^ where they have gone outside their powers and inflicted a wrong, - Upon the question of immunity of the Judges of the Supreme Court there can be no doubt. The principle is clear and the de- cisions are emphatic. The principle is that such Judges are the King's Judges directly, bound to administer the law between his subjects and even between his subjects and himself. To make them amenable to actions of damages for things done in their judicial capacity, to be dealt with by Judges only their equals in authority a,nd by juries, would be to make them not responsible to the King, but subject to other considerations than their duty to him in giving their decisions, and to expose them to be dealt with as servants not of him but of the public. (1883), a superintertdent of a State Insane Asylum determining that a per- son should be detained as dangerously insane, I' an Deusen v. Newcomer, 40 Mich. 90 (1879), a surveyor general revoking the commission of a deputy. Reed v. Conway, 20 Mo. 22 (1854), a superintendent of schools refusing to issue a teacher's license, Elmore v. Overton, 104 Ind. 548 (1885), see Dona- hoe v. Richards, 38 Maine 379 (1854), there is a conflict of authority, in Weaver v. Devendorf and East River Co. v. Donnelly, their immunity is held to be as complete as that of judges ; in Van Deusen v. Newcomer, they are held not liable for "acts done understandingly and in good faith"; in Faw- cett v. Dole, assessors are said not to be liable "for errors of judgment, un- intentional mistakes, irregularities or illegalities in the assessment" ; in Reed V. Conway, they are held liable only if they act maliciously or corruptly, see Pepper V. Mayes, 81 Ky. 673 (1884), and Elmore v. Overton, and Donahoe v. Richards, where, though it is said that their functions are not judicial but ad- ministrative, liability is held to depend on proof of malice or corrupt motives ; while in Stearns v. Miller and Univ. Sac. v. Leach, they are held liable for injurious errors due to fraud, malice, or "want of common care and skill." As to the liability of officials given by statute the power to destroy prop- erty if it be harmful to the public, as horses having glanders, etc., or Boards of Health empowered to destroy property endangering the health of the • community or of officers obeying their orders, compare Miller v. Norton, 152 Mass. 540 (1891) and Pearson v. Zehr, 138 111. 48 (1891) with Raymond V. Fish, 51 Conn. 80 (1883) and Valentine v. Englewood, 76 N. J. L. 509 (1908). As to the liability of election officers for refusing to receive the vote of a qualified voter, compare Morgan v. Dudley, 18 B. Mon. 693 (Ky. 1857), Bevard v. Hoffman, 18 Md. 479 (1862), holding that they are liable only if they do so maliciously or from corrupt motives, with Lincoln v. Hapgood, 11 Mass. 350 (1814), where a mere refusal is, without more, held to entail liability. MC CREADIE Z'. THOMSON. 961 Accordingly the remedy in this case, if they flagrantly offend against duty, is not by proceedings in any Court, but only by addresses to the Crown from the Houses of Parliament. Between their position and that of Judges appointed not by the King but by the community or some authority in the community not having the kingly preroga- tive, but only acting by a delegated authority for local administra- tion as in the case of Justices of the Peace appointed by the Lord Chancellor, there is no analogy. Therefore any claim for immunity for acts done in local summary Courts cannot be based on the fact of the immunity of the Supreme Court Judges. That the highest Courts of justice are designated "Supreme Courts" of itself indi- cates the distinction. The Supreme Courts have power to right wrongs done in the inferior Courts, their jurisdiction being uni- versal, and their duty being to see justice done throughout the land. The other Courts have no jurisdiction beyond their own border, and cannot review the conduct of any other Judge within their border. Is there, then, any immunity attaching to the Judges of the in- ferior Courts for their actings when sitting in judgment? Certainly there is. They cannot be made amenable for words used, however severely they may comment on the conduct of individuals, provided such words are uttered where acting in the exercise of their magis- terial functions. Of this the case at Waterston, 4 F. 783, is the latest and most emphatic instance. But while this is so, it is a totally different question whether a Magistrate who when sitting as such does official acts which he has no power to do under a statute in accordance with which he is bound to act, and which judicial acts have the effect of restraining the liberty of the subject, and subjecting him to penalty in his person, is immune from civil consequences for the wrong he has done. I do not think that this has ever been held, and the opposite has been held in many cases. Where a Magistrate professing to sit as such, and dealing with a case which he has no jurisdiction to deal with at all, commits what is an undoubted wrong upon a citizen, both by principle and practice he is, held liable for the wrong done. If that is so, can it be said that a^Iagistrate who has before him a case which he can competently try under an Act of Parliament on which the complaint is founded, and who, instead of dealing wdth the case as it is before him, and on conviction awarding such punishment as the Act prescribes and allows, proceeds knowingly to pronounce a sentence which is not competent under the Act of Parliament, and thereby sends a person to prison contrary to the Act of Parlia- ment, — I say, can it be said that he is in any more favorable posi- tion than a Magistrate trying a case in circumstances where he has no jurisdiction? In the one case his sentence is illegal, because he has no complaint before him on which he can pronounce a sentence at all. In the other he has a complaint before him, on which he can- not pronounce the sentence which he does pronounce. The wrong is as great in the latter case as in the former. For as well might he have no jurisdiction at all as step outside the jurisdiction wdiich he does possess, to do something wdiich he could not do if he held him- 962 MC CREADIE V. THOMSON. self within the limits prescribed to him by the law under which he was called to exercise his jurisdiction. The case of Groome v. For- rester, 5 Maule & Selwyn, 314, decided in England, is a forcible illustration of the fact that there may be liability in a Magistrate, not merely for acting without jurisdiction, but for doing an act in excess of the jurisdiction he was called upon to exercise. In that case, as here, the Magistrate could have pronounced an effective judgment, under which incarceration might have taken place. The mistake made was that while the thing complained of was that an overseer had refused to obey an order of the Court by delivering up a certain book, he was committed till he should have delivered up "all and every, the books," &c. In that case the Magistrates were held liable in damages for "a clear excess of jurisdiction." Here I think it is necessary to draw a distinction. It is where the error committed by the inferior Magistrate takes effect that his liability to answer for the wrong done arises. It is not for what he has ordered, but for what he has caused another to suffer that he is amenable to the law. That he has pronounced an illegal sentence is not sufficient to subject him in damages if nothing has been done upon it. But when it has been carried out so that the wrong has been made effective, then he may be answerable. This is illustrated by the English case. Barton v. Bricknell, 13 Q. B. (Ad._& El. N. S.) 393, where an illegal sentence ordering confinement in the stocks was pronounced, but was not carried out, so that the wrong was not suffered. Accordingly it was held that no claim for damages could be sustained. It only remains to be seen whether, under the legal decisions which have been pronounced, it can be held that in such a case as the present, in which a Magistrate sitting in a Police Court has pro- nounced a sentence of imprisonment for a term, without the option of a fine, where he had no jurisdiction to do so, he is free from any action. I am unable to find, after an examination of the cases quoted in the debate, that they lead to any such conclusion. One other case was referred to in reply by the reclaimer — that of Ander- son V. Gorrie, L. R. ( 1895) i Q. B. 668. That case also has no bear- ing, being the case of a Supreme Court Judge of a colony, and it was held that his position was analogous to that of a Supreme Court Judge in this country, and that he could not be sued for an act done in his capacity as Judge, whether he acted rightly or wrongly. On the question whether in this case it is necessary to aver specific malice, and to put malice in issue, I concur with the Lord Ordinary that the case being one in which the wrong complained of was an entirely ultra vires act by the magistrate, it is not neces- sary for the pursuer to prove malice. I adopt the words of Lord Pitmilly, who said in a similar case, (Strachan v. Stoddart, 7 S., at p. 6) — "It is no matter whether it was from error or malice, if . . . grossly illegal and irregular, the party is entitled to claim damages alike from the private party and the judge. ^ ^Accord: Creeps v. Burden, 2 Cowp. 640 (1777) ; Burlingham v. Wylee, 2 Root 152 (Conn. 1794) ; Lanpher v. Dewell, 56 Iowa 153 (1881) ; Sheldon v. HOULDEN V. SMITH. 963 HOULDEN V. SMITH. Court of Exchequer, 1850. 14 Adolphus & Ellis (N. S.) 841. Patterson, J. This was an action for trespass and false im- prisonment against the defendant, the judge of the county court in Lincohishire. The defendant pleaded Not guilty, but not saying "by statute ;" also a plea of want of notice of action ; but the notice was proved at the trial. The facts appear to be that the plaintiff, being resident in Cambridgeshire, was sued in the county court at Spilsby in Lincolnshire by special order of the defendant under the 60th section of stat. 9 & 10 Vict. c. 95. The plaintiff was served with the summons in Cambridgeshire, and not appearing, judgment was given against him by default at the court at Spilsby on the i8th of August, 1847. A judgment order was served on the plaintiff in Cambridgeshire on the 25th of August. A warrant against the goods of the plaintiff within the jurisdiction of the Spilsby court was issued on the 14th of September, which was transmitted, under the 104th section of the Act, (see stat. 15 & 16 Vict. c. 54, s. 5.) to the county court in Cambridgeshire, and returned "no effects." So far the proceedings were all regular. On the 21st of September a summons was issued by order of the defendant, calling on the plain- tiff to appear at the Spilsby court on the 7th of October, and be ex- amined as to his not paying the debt and costs, and as to his estate and effects. This summons was without jurisdiction; for the sec- tion, 98, which authorizes the issuing such summons, directs it to be issued by the county court within the limits of which the party shall then dwell or carry on his business ; which in this case was the county seat at Cambridgeshire ; for in that county only the plaintiff dwelt and carried on his business during the whole of these proceed- ings. This summons was served on the plaintiff" in Cambridgeshire on the 27th of September. On the 7th of October the plaintiff did not appear at the county court at Spilsby ; and, the service of the last summons having been proved, the defendant, as judge of the court, believing that he had power and authority to do so, made a minute in the minute book of the court, whereby it was ordered that the plaintiff should, for contempt in not attending, be committed to Hill, 33 Mich. 171 (1876); Estopinal v. Peyroux, 37 La. Ann. 477 (1885); Patzack v. Von Gerichten, 10 Mo. App. 424 (1881) ; and see Kennedy v. Bar- nett, 64 Pa. 141 (1870), semble. Contra: Austin v. Vrooman, 128 N. Y. 229 (1891) ; Handshaw v. Arthur. 9 App. Div. 175 (N. Y. 1896), 161 N. Y. 664 (1900) ; Sorenscn v. Wellman, 69 Kans. 637 (1904) ; Curiiow v. Kesslcr, UO Mich. 10 (1896) ; Comstock v. Eagle- ton, 11 CDkla. 487 (1902), holding that where a justice of the peace or other inferior judicial officer of lirnited jurisdiction has jurisdiction of the subject matter and person, he is no more liable than a judge of a superior court is lia- ble though his action is in excess of the powers conferred upon him by statute or is expressly forbidden thereby, Bradlev v. Fisher, 13 Wall. 335' (U. S. 1871) : Yates v. Lansing, 5 Johns. 282 (N. Y. 1810) ; Hughes v. McCov, 11 Colo. 591 (1888); Robertson v. Parker, 99 Wis. 652 (1898); cf. Heller v. Clarke, 121 Wis. 71 (1904); see Cooke v. Bangs, 31 Fed. 640 (1887), and Robertson v. Hale, 68 N. H. 538 (1896). 964 HOULDEN Cambridge gaol for fourteen days. A warrant was made out ac- cordingly ; and he was so committed. That this commitment was without jurisdiction is plain ; that the defendant ordered it under a mistake of the law and not of the facts is equally plain ; for it is impossible that he could be ignorant that the plaintiff dwelt and carried on his business in Cambridge- shire, the service of all the processes having been proved to have been made there, and the defendant having originally specially al- lowed the plaint to be made in his court, within the jurisdiction of which the cause of action accrued, the defendant (the now plain- tiff) residing in Cambridgeshire. This case is not therefore within the principle of Lozvther v. TJie Earl of Radnor. 8 East, 113, 119, or Gzvinne v. Poole, 2 Lutw. Appendix, 1560, 1566, where the facts of the case, although subsequently found to be false, were such as, if true, would give jurisdiction, and it was held that the question as to jurisdiction or not must depend on the state of facts as they ap- peared to the magistrate or judge assuming to have jurisdiction.^ Here the facts of the case, which were before the defendant, and could not be unknown to him, showed that he had no jurisdiction ; and his mistaking the law as applied to those facts cannot give him even a prima facie jurisdiction, or semblance of any. The only questions, therefore, are, whether the defendant is protected from liability at common law, being and acting as the judge of a court of record, in which case the plea of Not guilty would be sufficient ; or whether he is protected by the provisions of any statute, and if so, whether he can take advantage of such statute, having omitted the words "by statute" in his plea and the margin of it. As to the first question, although it is clear that the judge of a court of record is not answerable at common law in an action for an erroneous judgment, or for the act of any officer of the court wrong- fully done, not in pursuance of, though under color of, a judgment of the court, yet we have found no authority for saying that he is not answerable in an action for an act done by his command and author- ity when he has no jurisdiction. Here the defendant had not only no jurisdiction to commit the plaintiff to the gaol of Cambridgeshire, but he had no jurisdiction to summon him to show cause why he had not paid the debt. The summons ought to have been issued out of the county court of Cambridge. We cannot therefore hold that the defendant in this case is pro- tected from liability at common law. Is he then protected by any statute? We find no statute which gives such protection. The statutes of 21 Ja. i, c. 12, s. 5, and 42 G. 3, c. 85, s. 6, enable the defence, when it exists, to be given in evi- dence under the general issue, but they do not protect a party acting without jurisdiction; and now even that privilege of pleading the ^Accord: Cave v. Mountain, 1 Man. & Gr. 257 (1840) ; Calder v. Halket, 3 Moore P. C. Cases 28 (1839) ; Pike v. Carter, 3 BiAg. 78 (1825), alitcr where the court has means of knowledge of which he should have availed him- self: see The Case of Marshalsea, 10 Coke 68 b. as explained by Powel B. in Gwinn v. Poole. GROVE Z: VAX DUYX. 965 general issue only is coupled with this qualification, that the plea must be stated to be "by statute," which words are omitted here. The judgment must therefore l^e for the plaintiff. Judgment for plaintiff.^ GROVE z'. VAX DUYN. Court of Errors and Appeals, 1882. 44 A'. /. L. 654. '^ On error to the Middlesex Circuit. This was an action for trespass for assault and unlawful im- prisonment. The defendant, Cornelius Van Duyn, pleaded the gen- eral issue of not guilty to the declaration, which was in its usual form in trespass, for assault and unlawful imprisonment. The defendant Charles L. Stout also pleaded the general issue to the said declaration, and gave notice of special matter in evidence under said plea, setting up that he was one of the justices of the peace of the county of Middlesex, and that the following complaint was made before him by Cornelius Van Duyn : State of New Jersey, Middlesex county, .y.?. — Cornelius Van Duyn, administrator of Samuel Van Tilburgh, deceased, of the township of Franklin, county of Somerset, upon his oath complains that on the ist day of December, 1879, at the township of South Brunswick, in the county of Middlesex, Simeon P. Grove, William H. Grove, Jr., and Jediah Higgins, with force and arms, did enter upon the lands of Samuel Van Tilburgh, deceased, and with force and arms did unlawfully carry away about four hundred bundles of cornstalks, to the value of $8, and were engaged in carrying other cornstalks from said lands of said Van Tilburgh, deceased ; and therefore he prays that the said Simeon P. Grove, William H. Grove, Jr., and Jediah Higgins may be apprehended and held to answer said complaint and dealt with as law and justice may require. C. Van Duyn, Administrator. Sworn and subscribed before me this ist day of December, 1879, Chas. L. Stout, Justice of the Peace. Stout, as such justice, thereupon issued his warrant in the ordi- nary form, directing the said two persons and the said Higgins to 'Accord: Terry v. Huntington, Hard. 480 (1668); Smith v. Bouchier. 2 Strange 993 (1731) ; Wingate v. Waite, 6 M. & W. 739 (1840) ; Ely v. Thomp- son, 3 A. K. Marsh. 70 (Ky. 1820); Piper v. Pearson, 2 Gray 120 (Mass. 18S4); Selby v. Platfs, 3 Chand. 183 (Wis. 1851); Woodward v. Paine, 15 Johns. 493 (N. Y. 1818) ; Mitchell v. Galen, 1 Alaska 339 (1901) ; Craig v. Bur- nett. 32 Ala. 728 (1858); Russell v. Perry, 14 N. H. 152 (1843); Clark v. Holmes, 1 Dougl. 390 (Mich. 1844) ; Call v. Pike, 66 Maine 350 (1876) ; and McVea v. Walker, 11 Tex. Civ. App. 46 (1895), both cases where the magis- trate was disqualified by reason of relationship to one of the parties; Morgan v. Allen, 27 N. Car. 156 (1844), value of matter in contr6versy exceeded that over which justices had jurisdiction ; but see Young v. Herbert, 2 N. & McC. 172 (S. Car. 1819) ; Morrill v. Thurston, 46 Vt. 732 (1874) ; Vaughn v. Cong- don, 56 Vt. Ill (1883), arrest on a warrant issued upon a complaint showing on its face that the statute of limitation had run on the offense charged. ^66 GROVE V. VAN DUYN. be brought before him to answer the said complaint ; and such three persons having been arrested by a constable, on such warrant, and being brought before such justice, and having waived on examina- tion, were by him committed to the jail of the county for the cause mentioned in the complaint, to await the action of the next grand jury. Having given bail the next day the persons so arrested were discharged, and thereupon one of them, William H. Grove, Jr., brought this suit in trespass for the above-mentioned imprisonment. At the trial the plaintiff was nonsuited, and to review that judgment this writ of error was brought. For the plaintiff in error, A. V. Schenk and E. T. Green. For the defendants in error, /. H. Stezcart. The opinion of the court was delivered by Beasley, C. J. Most of the general principles of law pertain- ing to that branch of this controversy which relates to the alleged liability of the defendant in this suit, who was a justice of the peace, are so completely settled as not to be open to discussion. The doc- trine that an action will not lie against a judge for a wrongful com- mitment, or for an erroneous judgrnent, or for any other act made or done by him in his judicial capacity, is as thoroughly established as are any other of the primary maxims of the law. Such an ex- emption is absolutely essential to the very existence, in any valuable form, of the judicial office itself ; for a judge could not be either respected or independent if his motives for his official actions or his conclusions, no matter how erroneous, could be put in question at the instance of every malignant or disappointed suitor. Hence we find this judicial immunity has been conferred by the laws of every civilized people. That it exists in this state in its fullest extent has been repeatedly declared by our own courts. Such was pronounced by the Supreme Court to be the admitted principle in the case of Little V. Moore, i South. 75 ; Taylor v. Doremtis, i Harr. 473 ; Man- gold V. Thorpe, 4 Vroom 134; and by this court in Loftus y. Fraz, 14 Vroom 667. To this extent there is no uncertainty or difficulty whatever in the subject. But the embarrassment arises where an attempt is made to ex- press with perfect definiteness when it is, the acts done by a judge and which purport to be judicial acts, are such within the meaning of the rule to which reference has just been made. It is said every- where in the text-books and decisions, that the officer, in order to entitle himself to claim the immunity that belongs to judicial con- duct, must restrict his action within the bounds of his jurisdiction, and jurisdiction has been defined to be "the authority of the law to act officially in the particular matter in hand." Cooley on Torts 417. But these maxims, although true in a general way, are not suf- ficiently broad to embrace the principle of immunity that_ appertains to a court or judge exercising a general authority. ^ Their defect is that they leave out of account all those cases in which the officer in the discharge of his public duty is bound 'to decide whether or not a particular case, under the circumstances as presented to him, is within his jurisdiction, and he falls into error in arriving at his con- GROVE V. VAX DUYN. 967 elusion. In such instance, the judge, in point of fact and law, has no jurisdiction, according to the definition just given, over "the particular matter in hand," and yet, in my opinion, very plainly he is not responsible for the results that wait upon his mistake. And it is upon this precise point that we find confusion in the decisions. There are certainly cases which hold that if a magistrate, in the regu- lar discharge of his functions, causes an arrest to be made under his warrant on a complaint which does not contain the charge of a crime cognizable by him, he is answerable in an action for the injury that has ensued. But I think these cases are deflections from the correct rule ; they make no allowance for matters of doubt and difficulty. If the facts presented for the decision of the justice are of uncertain signification with respect to their legal effect, and he decides one way, and exercises a cognizance over the case ; if the superior court in which the question arises in a suit against the justice differs with him on this close legal question, is he open, by reason of his error, to an attack by action? If the officer's exemption from liability is to depend on the question whether he had jurisdiction over the par- ticular case, it is clear that such officer is often liable under such conditions, because the higher court, in deciding a doubtful point of law, may have declared that some element was wanting in the complaint which was essential to bring this case within the judicial competency of the magistrate. But there are many decisions which, perhaps, without defining any very clear rule on the subject, have maintained that the judicial officer was not liable under such condi- tions. The very copious brief of the counsel of the defendants abounds in such illustrations. As an example, we may refer to the old case of Gzuynne v, Poole, 2 Lutw. 387, in which it was held that the justice was justified because he had reason to believe that he had jurisdiction, although there was an arrest in an action which arose out of the justice's jurisdiction. This case has been since approved in Kemp v. Neville, 10 C. B. (N. S.) 550. Here, if the test of official liability had been the mere fact of the right to take cognizance over the particular matter in hand, considered in the light of strict legal rules, this decision would have been the opposite of what it is. In the same way the subject is elucidated in Brittain v. Kinnard, i B. & B. 432, the facts being a conviction by a justice of a person of having gunpowder in a certain boat, a special act authorizing the detention of any suspected boat ; and when the magistrate was sued in trespass for an illegal conviction, it was declared that the plain- tiff, in order to show the defendant's want of cognizance over the proceedings leading to the conviction, could not give evidence that the craft in question was a vessel and not a boat, because the justice had judicially determined that point. And in this case likewise, the test of jurisdiction in the magistrate in point of fact and of law, was rejected ; an inquiry into the authority by force of which the pro- ceedings had been taken being disallowed for the reason that such question had been passed upon by the magistrate himself, the point being before him for adjudication. The same doctrine was pro- mulgated in explicit and forcible terms by Mr. Justice Field, deliv- ering the opinion of the Supreme Court of the United States, in the 968 GROVE V. VAN DUYN. case of Bradley v. Fisher, 13 Wall. 335, this being his language: "If a judge of a criminal court, invested with general criminal juris- diction over offences committed within a certain district, should hold a particular act to be a public offence which it is not, and proceed to the arrest and trial of a party charged with such act, ... no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particu- lars for his judicial consideration, whenever this general jurisdiction over the subject-matter is invoked." These decisions, in my estimation, stand upon a proper foot- ing, and many others of the same kind might he have referred to, but such course is not called for, as it must be admitted that there is much contrariety of results in this field, and the references above given are amply sufficient as illustrations for my present purposes. The assertion, I think, may be safely made, that the great weight of judicial opinion is in opposition to the theory that if a judge, as a matter of law and fact, has not jurisdiction over the particular case, that thereby, in all cases, he incurs the liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer having general powers of judicature, must, at his peril, pass upon the question, which is often one dif- ficult of solution, whether the facts before him place the given case under his cognizance, is as unreasonable as it is impolitic. Such a regulation would be applicable alike to all courts and to all judicial officers acting under a general authority, and it would thus involve in its liabilities all tribunals except those of last resort. It would also subject to suit persons participating in the execution of orders and judgments rendered in the absence of a real ground of juris- diction. By force of such a rule, if the Supreme Court of this state, upon a writ being served in a certain manner, should declare that it acquired jurisdiction over the defendant, and judgment should be entered by default against him, and if, upon error brought, this court should reverse such judgment on the ground that the service of the writ in question did not give the inferior court jurisdiction in the case, no reason can be assigned why the justices of the Su- preme Court should not be liable to suit for any injurious conse- quence to the defendant proceeding from their judgment. As I have said, in my judgment, the jurisdictional test of the measure of judicial responsibility must be rejected. Nevertheless, it must be conceded that it is also plain that in many cases a transgression of the boundaries of his jurisdiction by a judge, will impose upon him a liabilty to an action in favor of the person who has been injured by such excess. If a magistrate should, of his own motion, without oath or complaint being made to him, on mere hearsay, issue a warrant and cause an arrest for an alleged larceny, it cannot be doubted that the person so illegally imprisoned could seek redress by a suit against such officer. It would be no legal answer for the magistrate to ass'ert that he had a general cognizance over criminal offences, for the conclusive reply would GROVE V. VAX DUYX. 969 be, that this particular case was not, by any form of proceeding, put under his authority. From these legal conditions of the subject my inference is, that the true general rule with respect to the actionable responsibility of a judicial officer having the right to exercise general powers, is, that he is so responsible in any given case belonging to a class over which he has cognizance, unless such case is by complaint or other pro- ceeding put at least colorahly under his jurisdiction. Whether the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to the person afifected by his decision, whether such decision be right or wrong. But when no facts are present, only such facts as have neither legal value nor color of legal value in the afifair, then, in that event, for the magis- trate to take jurisdiction is not, in any manner, the performance of a judicial act, but simply the commission of an unofficial wrong. This criterion seems a reasonable one; it protects a judge against the consequences of every error of judgment, but it leaves him an- swerable for the commission of wrong that is practically wilful ; such protection is necessary to the independence and usefulness of the judicial officer, and such responsibility is important to guard the citizen against official oppression. The application of the above-stated rule to this case must, obvi- ously, result in a judgment affirming the decision of the Circuit judge. There was a complaint, under oath, before this justice, pre- senting for his consideration a set of facts to which it became his duty to apply the law. The essential things there stated were, that the plaintifif, in combination with two other persons, "with force and arms," entered upon certain lands, and "wnth force and arms did unlawfully carry away about four hundred bundles of corn- stalks, of the value," &c., and were engaged in carrying other corn- stalks from said lands. By a statute of this state, (Rev., p. 244, § 99,) it is declared to be an indictable offence, "if any person shall wilfully, unlawfully and maliciously" set fire to or burn, carry off or destroy any barrack, cock, crib, rick or stack of hay, corn, wheat, rye, barley, oats or grain of any kind, * * * or any trees, herbage, growing grass, hay or other vegetables, &c. Now although the mis- conduct described in the complaint is not the misconduct described in this act, nevertheless the question of their identity was colorahly before the magistrate, and it was his duty to decide it ; and under the rule above formulated, he is not answerable to the person in- jured for his erroneous application of the law to the case that was before him. As to the other defendant, all he did was to make his complaint on oath before the justice, setting forth the facts truly, and for such an act he could not be held liable for the judicial action which en- sued, even if such action had been extra-judicial. But as the case was, as we have seen, brought within the jurisdiction of the judicial officer, neither this defendant, nor any other person could be treated as a trespasser for his co-operation in procuring a decision and com- 0*70 SULLIVAN V. JONES. mitment which were valid in law, until they had been set aside ty a superior tribunal. Let the judgment be affirmed. For affirmance— The Chancellor, Chief Justice, Depue, Dixon, Knapp, Magie, Parker, Reed, Van Syckel, Clement, Cole, Kirk, Green, Paterson. 14. For reversal — None.^ SULLIVAN V. JONES. Supreme Court of Massachusetts, 1854. 2 Gray, 570. Trespass for false imprisonment of the plaintiff on an execu- tion, issued by Jones, a justice of the peace, on a judgment recovered before him against the plaintiff on a debt less than five dollars ; which execution contained a command to the officer, for want of money or goods, to take the body of the plaintiff, and commit him to prison ; and on which the plaintiff, by the direction of Jeremiah Russell, the other defendant, the attorney who brought the suit on which the judgment was recovered, was arrested and committed to jail. Merrick, J. The Rev. Sts. c. 97, §§ 44, 45, expressly declare that no person shall be imprisoned on mesne process or execution for any debt less than five dollars, or on any execution issued upon a judgment rendered upon a former judgment founded upon such a debt. And the forms of all executions are required to be so varied as to adapt them to that prohibition. § 47. In view of these pro- visions, there can be no doubt that the command, contained in the execution which was issued by Jones against the plaintiff, to take the body of the plaintiff and commit him to the Commonwealth's jail, was a direct violation of the positive requirements of the law. This is not denied by the defendants. But their defence is placed "■Accord: Busteed v. Parsons, 54 Ala. 393 (1875); Mcintosh v. Bullard, 95 Ark. 227 (1910) ; Clark v. Spicer, 6 Kans. 440 (1870) ; Gillett v. Thiebold. 9 Kans. 427 (1872) ; Rush v. Buckley, 100 Maine 322 (1905) ; Landt v. Hilts. 19 Barb. 283 f N. Y. 1855) ; Ayers v. Russell, 50 Hun 282 (N. Y. 1888) ; McCall V. Cohen, 16 ~S. Car. 445 (1881) ; Marks v. Sullivan, 9 Utah 12 (1893) ; see Austin v. Vrooman, 128 N. Y. 229 (1891), and compare Mitchell v. Foster, 12 A. & E. 472 (1840), and Trucsdcll v. Combs, 2>2 Ohio St. 186 (1877). In determining the existence of facts necessary to give it jurisdiction either a superior court of limited jurisdiction or a justice of the peace acts ju- dicially and is not liable for error in taking jurisdiction, Lange v. Benedict, IZ N. Y. 12 (1878), semble, Roderigas v. East River Savings Institution, 63 N. Y. 460 (1875) ; Scott v. McXcal, 154 U. S. 34 (1894). In Thompson v. Jackson, 93 Iowa 376 (1895) ; Bell v. McKinney, 63 Miss. 187 (1885), and Anderson v. Roberts, 35 S. W. 416 (Tex. Civ. App. 1896), it is held that a magistrate is not liable for acting outside his jurisdiction unless he docs so knowinglv or in bad faith, and see Young v. Herbert, 2 Nott & McC. 172 (S. Car. 1819). In Pratt v. Sanger, 4 Gray 84 (Mass. 1855), it is held that a justice is liable if the law under which he acts is unconstitutional, but compare Clark v. Spicer, 6 Kans. i40 (1870), and Cottam v. Oregon, 98 Fed. 570, (C. C Dist. of Oregon 1899). SULLIVAN V. JONES. 971 by them on a wholly different ground. They insist that, in framing and issuing the execution, Jones acted in his judicial capacity as a justice of the peace, and for that reason is not responsible in any civil action to the plaintiff for any injurious consequences resulting from it. If the position assumed b)^ the defendants could be maintained as a matter of fact, the consequence contended for by them would undoubtedly follow. There is a familiar and well-known distinction between the judicial and ministerial powers and duties of justices of the peace. When acting in the former capacity, and within the limits of the jurisdiction conferred upon them, like the judges of other courts, they are exempted from liability to answer elsewhere in private actions for their official orders, decrees and judgments. Pratt V. Gardner, 2 Cush. 63. But they have always been held re- sponsible to individuals in civil suits for all the injurious conse- ciuences arising from every illegal act they may have done, either in the adjudication of causes of which they had no jurisdiction, or in the exercise of their ministerial powers, or in the discharge of their ministerial duties. Briggs v. WardwcU, 10 Mass. 356. Perci- val V. Jones, 2 Johns. Cas. 49. Spencer v. Perry, 17 Maine, 413. Clarke v. May, ante, 410. When, in the progress of a suit, a final judgment has been ren- dered, there can remain no further judicial duty to be performed. The court or magistrate has then no longer a question upon which to deliberate, or a cause between contending parties to decide. Noth- ing is left to be done but to carry the judgrnent into effect. That, under our law, is accomplished by means of an execution. It was early determined by this court that the issuing of such an execution by a justice of the peace was merely a ministerial act ; and in a par- ticular instance, where such process was issued erroneously, the magistrate was held responsible in damages for the commitment to prison of a party under it. Briggs v. IVardivell, 10 Mass. 356.^ ^Accord: Fairchild v. Keith, 29 Ohio St. 156 (1876); and Larson v. Kelly, 64 Minn. 51 (1896), facts similar to those in principal case; McLendon v. American Freehold &c. Co., 119 Ala. 518 (1898), false certificate of the acknowledgment of a deed; Stone v. Graves, 8 Mo. 148 (1843). In Abrains V. Carlisle, 18 S. Car. 242 (1882) ; the premature entry of judgment and issu- ing of execution was held a judicial and not a ministerial act; and see also Ward V. Freeman, 2 Ir. C. L. 460 (1852), where four of eight judges follow- ing Lin ford V. Fitzroy, U A. & E. (N. S.) 240 (1849), held that if any part of the duties of the magistrate was judicial, the whole must be, it being im- permissible to split up and divide his duty. Even a judge of a superior court may be charged with the performance of purely ministerial duties, and is liable for neglect or misperformance of them. Grider v. Tally, 77 Ala. 422 (1884), refusal to issue liquor license. As to the liability of a judge for the custodv of money paid into court, see Disbrow v. Mills, 62 N. Y. 604 (1875) ; State v. Faulkner, 31 Hun 317 (N. Y. 1884). "The essential and characteristic difference between a judicial and minis- terial officer is, that the former is to give judgment, which requires perfect freedom of opinion, that the latter is to execute, which supposes obedience to some mandate prescribing what is to be done ; and leaving nothing to opin- ion."— Richardson, J. in Reid v. Hood & Bur dine, 2 Nott & McC. 168 (S. Car. 1819). g72 GARIKG 7'. rRASF.R. SECTION 2. Immunity of Witnesses. GARING V. FRASER. Supreme Judicial Court of Maine, 1884. 76 Maine Z7. Virgin, J. The plaintiff alleges in substance that the defend- ants maliciously conspired to falsely accuse, and, by means of false testimony, to procure him to be indicted and convicted of the crime of maintaining a nuisance; that by false and perjured testimony the defendants did accuse him of said crime before the grand jury who found an indictment therefor against him ; that he was tried on said indictment, and, by means of false and perjured testimony given by them at the trial, the jury found him guilty of the charge ; that the court set aside the verdict because of said false and perjured testi- mony ; and that thereupon the county attorney entered upon the records of the court a nolle prosequi to said indictment with allega- gations of damages. The gist of the action is not the conspiracy alleged, but the tort committed by the defendants and the damage resulting therefrom. The acts of the defendants are alleged to be false and perjured testimony. But at common law an action will not lie against one for perjury. Dunlap v. Glidden, 31 Maine, 435, 439; Severance v. Judkins, 73 Maine, 379 ; Damport v. Sympson, Cro. Eliz. 520 ; Eyres There is much conflict as to what acts of a magistrate or other inferior judicial officer are ministerial. The granting of an appeal is held to be a ministerial act in Tyler v. Alford, 38 Maine 530 (1854), though demanding the exercise of discretion and the justice is liable if he act corruptly ; contra,^ Jordan v. JJanson, 49 N. H. 199 (1870), while in Ward v. Freeman, 2 Jr. C. L. 460 (1852), a judgment for defendant in an action against an "Assistant Barrister" for his refusal to receive an appeal was affirmed by a divided court; and see Cunningham v. Dilliard. 4 Dev. & B. 351 (N. Car. 1839). In Legates v. Lingo, 8 Houst. 154 (Del. 1888), and Tompkins v. Sands, 8 Wend. 462 (N. Y. 1832), a refusal to approve an appeal bond was held a ministerial act, for which, if done from a corrupt motive, the justice was liable j contra, Rains v. Simpson, 50 Tex. 495 (1878), an approval of inadequate sheriff's bond; Jiowe v. Mason, 14 Iowa 510 (1863), an approval of replevin bond were held judicial acts. So in Chickcring v. Robinson, 3 Cush. 543 (Mass. 1849), the approval of an invalid recognizance is held to be a judicial act. In Groh- mann v. Kirschman, 168 Pa. St. 189 (1895), and Flack v. Harrington, 1 Breese 165 (111. 1826), justices of the peace, and in Gibhs v. Randlett, 58 N. H. 407 (1878), a sheriff, refusing to admit to bail or to receive adequate bail offered, were held liable; but see Evans v. Foster, 1 N. H. 374 (1819), in which it was intimated that a justice was not liable for demanding excessive bail. As to the liability of a justice issuing a warrant of his own motion or without the complaint required bv law, see McCarthv v. De Armit, 99 Pa. St. 63 (1881). and Wallsworth v. McCullough, 10 Johns. 93 (X. Y. 1813), and see Banister V. IVakeman, 64 Vt. 203 (1891). a justice held to be acting ministerially in issuing a mittimus in a criminal case. ' GARING V. FRASER. 9/3 V. Sedgivicke, Cro. Jac. 6oi ; Phelps v. Stearns, 4 Gray, 106; Rice V. Coolidge, 121 Mass. 395, and cases cited. But it is said that the EngHsh Sts. of 5 and 28 EHz. provide that a party grieved by a judgment obtained by the perjury of witnesses might, after the reversal of the judgment, "recover his damages against every such person as did procure such judgment against him, by action on the case," Assuming, however, that these statutes are in force here, neither of them can be seriously contended to be ap- plicable to this case. To be sure, it is a general rule of the common law and it has been substantially engrafted into Art. i, § 19 of our constitution, that a man shall have remedy for every injury. 3 Black. Com. 123; Ashby v. White, i Salk. 21. But the law has more than one idea. And this principle however sound must be un- derstood with such qualifications and limitations as other principles of law equally sound and important impose upon it. Morton, J., II Pick. 532. Thus notwithstanding the rule first above mentioned, words spoken in the course of judicial proceedings, though they im- pute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable if applicable and pertinent to the subject of inquiry. Barnes v. Mc- Crate, 32 Maine, 442; Hoar v. Wood, 3 Met. 193. So in the case at bar, while the law declares that every person shall have a remedy for every wrong, public policy requires that witnesses shall not be restrained by the fear of being vexed by actions at the instance of those who are dissatisfied with their testimony ; but if they perjure themselves they may be indicted and punished therefor. Barber v. Lesiter, 7 C. B. (N. S.) (Erie, J.) 186. Exceptions overruled.^ ^ While the judgment against the plaintiff stands unreversed, no action is allowed against either the adverse party whose alleged perjury or suborna- tion of perjury has procured such judgment, Phelps v. Stearns, 4 Gray 105 (Mass. 1855) ; Curtis v. Fairbanks, 16 N. H. 542 (1845) ; Severance v. Judkins, 72> Maine 376 (1882) ; Damport v. Sympson, Cro. Eliz. 520 (1596) ; E\res v. Sedgimcke, Cro. Jac. 601 (1621) ; Bostwick v. Lewis, 2 Day 447 (Conn. 1807) ; Smith v. Lewis, 3 Johns. 157 (N. Y. 1808); or against a witness. Grove v. Brandenburg, 7 Blackf. 234 (Ind. 1844); Cunningham v. Broiun, 18 Vt. 123 (1846); Dunlap v. Glidden, 31 Maine 435 (1850), where, however, the wit- nesses were joined as defendants with the successful adversary, and see Taylor v. Bidwell, 65 Cal. 489 (1884), since this involves raising the same issues already decided, for the purpose of collaterally attacking the judgment, which as to such party is final and conclusive until reversed upon appeal or set aside upon motion for new trial or other direct proceedings. Where, however, the plaintiff is not party to the judgment this reason does not ap- ply and since the public policy which gives immunity of the witness does not require the protection of one suborning his perjury, a woman whose reputa- tion was injured by a verdict in a divorce case finding the respondent guilty of adultery with her was held in Rice v. Coolidge, 121 Mass. 393 (1876), en- titled to maintain an action against the parties to the divorce proceedings who had suborned a witness to falsely testify to the acts of adultery, but com- pare Taj^/or V. Bedwell, where, however, the plaintiff had been convicted of a criminal offense and had served his term of imprisonment before he had dis- covered the alleged perjury. 974 BURNS r. ERBENo SECTION 3. The Right to Arrest With or Without Warrant or to Seize Prop- erty Under Judicial Process. (a) Arrest without warrant. BURNS V. ERBEN. Court of Appeals of New York. 1869. 40 N. Y. 463. Woodruff, J. By section 8 of the act to establish a MetropoH- tan Police District, passed April 15th, 1857 (chap. 569 of Laws of 1857), the members of the police force of that district are given "in every part of the state of New York, all the common law and statu- tory powers of constables, except for the service of civil process." And in the amendatory act passed April 10, i860 (chap. 259 of Laws of i860), it is declared in the 28th section, that the members of the police force of that district "shall possess in every part of the state all the common law and statutory powers of constables, except for the service of civil process." In pursuance of information given by the defendant, Erben, the defendant. Frost, accompanied by Erben, arrested the plaintiff without a warrant, took her to the police station, where she was detained a few minutes, and after some conversation with the officer in charge, she was permitted to return to her residence. For this she has brought the present action for false imprisonment. A felony had been committed that evening, at the house of Mr. Henry Erben, the defendant's father. On that point there is no dispute or conflict. The plaintiff had visited the house that evening, and, according to the information upon which the defendant acted, was the only person not a member of the family, who had been in the basement. Silver had been stolen from the basement. It was there when the plaintiff entered and until after 8 o'clock ; and it was missed very shortly after she left the house. Of these facts the proof was distinct and without contradiction. L^pon a report of these facts. Frost, accompanied by the de- fendant, Erben, made the arrest as above stated. The inquiry is, therefore, whether under the statutes above cited and the common law rule in respect of arrests made or aided by private persons, the plaintiff was entitled to recover. There were no facts in dispute requiring the submission of any question to the jury, unless it be held that there was no justification. I have no doubt upon the subject. The writers upon criminal law and the reported cases, so far as I have examined them, hold uniform language. BURNS V. ERBEN. 975 Lord Tenterden, Ch. J., in Beckwith v. Philby (6 Barn. & Cres., 635), says: "The only question of law in this case is, whether a constable, having a reasonable cause to suspect that a person has committed a felony, may detain such person until he can be brought before a justice of the peace to have his conduct investigated. There is this distinction between a private individual and a constable : in order to justify the former in causing the imprisonment of a per- son, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed ; whereas a constable having reasonable ground to suspect that a fel- ony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities." (See Hawk P. C, book 2, chap. 12, 13; i Russell on Crime, 594, 5; Steph. Cr. L., 242, 3; I Chit. Cr. L., 15, 17; Samuel v. Payne, Doug., 358; Lazvrence v. Hcdger, 3 Taunt., 14 ; Regina v. Toohy, 2 Ld. Ray- mond, 130; Hobbs V. Brandscomb, 3 Camp., 420; Davis v. Russell, 5 Bing., 354; Cozvles v. Dunbar, 2 Car. and P., 565.) In Ledwith v. Catchpolc (Cald. Cas., 291, and ist Burns, Jus- tice, p. 130, i). Lord Mansfield says, in an action against the officer: "The question is, whether a felony has been committed or not. And then the fundamental distinction is, that if a felony has actually been committed, a private person may, as well as a police officer, arrest ; if not, the question always turns upon this, was the arrest bona Ude? Was the act done fairly and in pursuit of an officer, or by design, or malice, or ill will? * * * It would be a terrible thing, if, under probable cause, an arrest could not be made * * * ; many an innocent man has and may be taken up upon suspicion ; but the mischief and inconvenience to the public in this point of view, is comparatively nothing ; it is of great consequence to the police of the country."^ The justification of an arrest by a private person was made in Allen V. Wright (8 Carr and Payne, 522), to depend on first, the fact that a felony had been actually committed ; and second, that the circumstances were such that a reasonable person, acting without passion and prejudice, would have fairly suspected the plaintiff of being the person who did it.^ ^ In Wakely v. Hart, 6 Binney 316 (Pa. 1814), it was unsuccessfully con- tended that the provision in the constitution of Pennsylvania, common to all state constitutions, declaring that all persons shall be secure against unrea- sonable searches and seizures and providing that no warrants shall issue with- out describing the person or property "as nearly as may be nor without prob- able cause supported by oath", had made illegal the arrest without warrant of a person even if actually guilty of itXouy; accord: Rohan\.Sawin,S Cush. 281 (Mass. 1850), arrest by constable on reasonable suspicion, Dewey, J. saying that such provisions do not "conflict with the authority of constables or other peace officers or private persons under proper limitations to arrest without warrant those who have committed (or, if the arrest is by a constable, are reasonably suspected to have committed) felonies. The public safety and the due apprehension of criminals charged with heinous offences, imperiously re- quire that such arrests should be made without warrant by officers of the law"; see also, McCarthy v. De Armit, 99 Pa. St. 63 (1881). '^Accord: Long v. State, 12 Ga. 293 (1852) ; Gamier v. Squires, 62 Kans. 321 (1900) ; Maliniemi v. Gronlund, 92 Mich. 222 (1892) ; Spencer v. Anness, 976 BURNS V. ERBEN. These principles are affirmed in this State in Mix v. Clute (3 Wend., 350), in very distinct terms, "if a felony has been com- mitted by the person arrested, the arrest may be justified by any per- son without a warrant.^ If an innocent person is arrested upon sus- picion by a private individual, such individual is excused if a felony was ill fact committed, and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and ^ private individual arrest without warrant, such arrest is illegal,* though an officer would be justified if he acted upon information from another which he had reason to believe."^ 32 N. J. L. 100 (1866) ; Reuck v. McGregor, 32 N. J. L. 70 (1866) ; McCarthy V. De Armit, 99 Pa. St. 63 (1881), semble: Brooks v. Commonwealth, 61 Pa. 352 {\%b9), semble; but see Grinnell v. Weston, 95 App. Div. 454 (N. Y. 1904) ; Brockway v. Crawford, 48 N. Car. 433 (1856). The plea should set forth the grounds for the defendant's suspicion of the plaintiff's guilt, Mure v. Kaye, 4 Taunt. 34 (1811); Spencer v. Anncss, 32 N. J. L. 100 (1866) and Edger v. Burke, 96 Md. 715 (1903), and the question as to whether the de- fendant, whether private person or officer, had reason to suspect the plain- tiff, is a question for the decision of the court, Howard v. Clarke, L. R. 20 Q. B. Div. 558 (1888) ; Spencer v. Anness, 32 N. J. L. 100 (1866) ; McCarthy v. De Armit, 99 Pa. St. 63 (1881) ; but see Grinnell v. Weston, 95 App. Div. 454 (N. Y. 1904): Cochran v. Toher, 14 Minn. 385 (1869), and Rohan v. Sawin, 5 Cush. 28; (Mass. 1849). In Dodds v. Board, 43 111. 95 (1867), Kindred v. Stilt, 51 111. 401 (1869). and Rohan v. Sawin, 5 Cush. 281 (Mass. 1849), it is held that a private per- son can only justify by showing the actual guilt of the person arrested; see also Lander v. Miles, 3 Ore. 35 (1868) ; see Gold V. Armer, 140 App. Div. 72> (N. Y. 1910), p. 75. * Wakely v. Hart, and Rohan v. Sawin, 5 Cush. 281 (Mass. 1849), Note 1; Wrexford v. Smith, 2 Root 171 (Conn, 1795). So a private person may ar- rest a felon who has escaped from a prison in the state in which the arrest occurs. State v. Holmes, 48 N. H. 2>77 (1869), but not a fugitive from justice from another jurisdiction, Botts v. IVilUams, 17 B. Mon. 687 (Ky. 1856) ; Wells V. Johnston, 52 La. Ann. 713 (1900); but see Cochran v. Toher, 14 Minn. 385 (1869). * Doughty v. State, 33 Tex. 1 (1870), and see dicta in many of the cases cited in Note 2. ^Accord: Samuel v. Payne, 1 Douglas 359 (1780), Lord Mansfield say- ing "it would be most mischievous that the officer should be bound," (before making the arrest), "first to try, and at his peril exercise his judgment on the truth of the charge"; Hobbs v. Branscomb, 3 Camp. 420 (1813) ; Hogg v. Ward, 3 H. & N. 417 (1858) ; Johnson v. State, 30 Ga. 426 (1860) ; Dodds v. Board, 43 111. 95 (1867), semble; Doering v. State, 49 Ind. 56 (1874) ; Gar- nicr v. Squires, 62 Kans. 321 (1900) ; Werner v. Commonwealth, 80 Ky. 387 (1882) ; Cochran v. Toher, 14 Minn. 385 (1869) ; Filer v. Smith, 96 Mich. 347 (1893); Neal v. Joyner, 89 N. Car. 287 (1883); McCarthy v. De Armit. 99 Pa. St. 63 (1881) ; Eanes v. State, 6 Humph. 53 (Tenn. 1845) ; Burke v. Bell, 36 Maine 317 (1853) ; Edger v. Burke, 96 Md. 715 (1903) ; Rohan v. Sawin. 5 Cush. 281 (Mass. 1849). In such case the person making the charge is answerable, the officer is not liable, Samuel v. Payne. 1 Douglass 359 (1780), and Holly v. Mix. A peace officer enjoys equal immunity where he acts on his own motion, having from his own knowledge reasonable grounds to suspect that a felony has been committed, Beckwith v. Phclby, cited in the principal case; Johnson v. Collins, 28 Ky. L. 375 (1905) ; Brish v. Carter, 98 Md. 445 (1904) ; Mc- Carthy v. De Armit, 99 Pa. St. 63 (1881) ; Brockzvay v. Crawford, ,3 Jones (Law) 433 (N. Car. 1856). The fact that the warrant has been issued is sufficient grounds for sus- picion, Filer V. Smith, 96 Mich. 347 (1893) ; Creagh v. Gamble, 24 L. R. Ir. STATE Z: LEWIS. 977 The fact being proved in this case that a felony had in fact been committed, I have no hesitation in saying that, however unfortunate it was to the plaintiff, the circumstances fully justified the sus- picion which led to her arrest. It is claimed that these circumstances should have been submitted to the jury. Not so ; a verdict finding no reasonable ground of suspicion would have been against evi- dence. There was no conflict of testimony, and that the arrest was made without malice, in good faith, and upon reasonable grounds. Is to my mind incontrovertible. The appeal appears to me to have been taken upon a misappre- hension of the construction and effect of the statutes conferring power on the policeman. I think the power perfectly clear, and I notice that the rules and regulations of the board of police are in conformity therewith ; and it is made the duty of the officer to take the arrested person immediately before the Police Court, or if made at night or when the courts are not open, immediately to the station house, where the officer on duty is required to examine whether there is reasonable ground for the complaint, and if so, to cause the party to be taken before the court the next morning. Under such a system, innocent parties may sometimes be subjected to inconve- nience and mortification ; but any more lax rules would be greatly dangerous to the peace of the community and make the escape of criminals frequent and easy. The judgment should be affirmed. All the judges concurring, judgment affirmed." ^/ STATE V. LEWIS. Supreme Court of Ohio, 1893. 50 Ohio St. 179. Bradbury, C. J. The defendant was indicted for murder in the second degree for causing the death of one Edward Elliott, in the course of an attempt to arrest the latter for the commission of a misdemeanor. The defendant was marshal of the village of Hillsboro, in Highland county, and being put upon trial for the homicide, it became material to inquire into the authority of such officers to make arrests without a written warrant therefor. That the defendant was marshal of the village of Hillsboro ; 458 (1888). But the officer is bound to know the law, he is not excused if he erroneously supposed that certain acts cofnmitted, or reasonably believed to have been committed, by the plaintiff constituted a felony, Malcolmson v Scott, 56 Mich. 459 (1885). In Sugg v. Pool 2 Stew. & P. 196 (Ala. 1832), Vice V. Holly, 88 Miss. 572 (1906), cf. Formwalt v. Hylton, 66 Tex. 288 (1886), it is held, relying on cases holding that an officer arresting on a warrant must at his peril arrest the person named therein, that a mistake in identity is at the officer's peril; contra,, Edger v. Burke, Brockwav v. Craivford, Filer v ^«n7/i, 96 Mich. 347 (1893). *The right of arrest without warrant is not affected by the fact that there was time to obtain a warrant, Davis v. Russell, 5 Bing 354 (18^9)- Holley V. Mix, 3 Wend. 350 (N. Y. 1829) ; Rohan v. Sazi'in, 5 Cush 281 (Mass. 1849). Q78 STATE Z'. LEWIS. did not witness the affray nor procure from a magistrate a warrant for the arrest of the deceased, are conceded facts. In addition to this the testimony given in behalf of the state tended to prove that the deceased had participated in an affray in a saloon within the village of Hillsboro, on the day of the homicide ; that the defendant was absent and did not hear or see any part of the affray ; that a few minutes thereafter he received information that a breach of the peace had been committed, and at once went to the saloon where it had occurred ; that when he reached the saloon, the parties to it had gone and good order had been restored ; that upon inquiry the de- fendant was told that an affray had been committed, in which the deceased had participated, and ascertaining the direction taken by the deceased, the defendant, without obtaining a warrant, immedi- ately pursued, soon after overtook and proceeded to arrest him for that offense; that the deceased, though having knowledge of the official character of the defendant, resisted the arrest, and in the resulting struggle was shot and killed by the defendant. The authority of peace officers to- arrest without a warrant from a magistrate is a subject that has received the attention of the courts and text-writers from an early period in the history and develop- ment of the common law in both England and America. Some of the earlier English authorities, while the prerogatives of the govern- ment were more highly considered than at a later day. maintained the power. (2 Hale P. C. 90.) But even then the doctrine met with a resistance which finally overturned it. (l East P. €.305.) Regina v. Tooley, 2 Lord Raymond, 1301, where Lord Holt, in de- livering the opinion of the majority of the court, is reported as sav- ing: "The prisoners in this case had sufficient provocation; for if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion ; much more where it is done under a color of justice, and where the liberty of the subject is invaded, it is a provocation to all the subjects of England. He said, that a constable cannot arrest, but when he sees an actual breach of the peace,^ and if the affray be over, he cannot arrest." See also 2 Hawk. Crim. Law, 13, Sec. 8. The later English authori- ^ The right of a constable or other peace officer to immediately arrest for breach of the peace committed in his presence is universally recognized. Anon. Y. B. 7 Henry VII 6 pi. 12 ( 1480) ; United States v. Hart, Peters 390 (U. S. 1817); Vandeveer v. Mattocks, 3 Ind. 479 (1852); Hutchinson v. Songster, 4 G. Greene 340 (Iowa 1854) ; Taaffe v. Kyue, 9 AIo. App. 15 (1880) ; Commonwealth v. Deacon, 8 S. & R. 47 (Pa. 1822) ; Perry v. Pa. R. Co. 41 Pa. S. C. 591 (1910) ; Taylor v. Strong, 3 Wend. 384 (X. Y. 1829) ; State v. Bowen, 17 S. Car. 58 (1881) ; Ross v. State, 10 Tex. App. 455 (1881) ; Main v. McCarty, 15 111. 441 (1854). At common law the right of a peace officer to arrest without warrant upon view of offenses less than felony, was confined to breaches of the peace and offenses punishable in a summary man- ner. Clerk and Lindsell on Torts. 6th ed. 350; Park v. Taylor, 118 Fed. 34 (1902); Commonzvealth V. Wright, 158 Mass. 149 (1893); IVay's Case, 41 Mich. 299 (1879) : Danovan v. Jones, 36 N. H. 246 (1858) ; Booth v. Hanley, 2 C. & P. 288 (1826), arrest of one committing a nuisance, see Mum ford v. Starmonf, 139 Mich. 188 (1905), Schnider v. Montross, 158 Mich, 263 (1909), and Moore v. Durgin, 68 Maine 148 (1878) j contra. State v. McNally, 87 Mo. 644 (1885), [holding also that killing to effect arrest is justifiable, as to STATE V. LEWIS. 979 ties seem to settle the law there in accordance with the views of Lord Holt. Coupey v. Henley et al., 2 Esp. 540; Bayncs v. Brezc- ster, 2 A. & E. (X. S.) 375 ; Regina v. Mable, 9 C. & P. 474; Tim- othy V. Simpson, i C. ]\I. & R. 757; Grant v. Moser, 5 Mann & G. 123; I Russ. on Cri. (8th ed.) 410, 805. In the case of Cook v. Nethercote, 6 C. & P. 741, Alderson, B., in summing up says: "If, however, there has been an affray, and that affray were over, then the constable had not and ought not to have the power of appre- hending the persons engaged in it ; for the power is given him by law to prevent a breach of the peace ; and where a breach of the peace had been committed, and was over, the constable must pro- ceed in the same way as any other person, namely, by obtaining a warrant from a magistrate." Id. 744. The American authorities establish the same rule. Roberts v. The State, 14 j\Io. 138; The People v. James Haley, 48 ]\Iich. 495; Phillips V. Trull, 11 John. 486; Pozv v. Beckncr et al., 3 Ind. 475; I Bishop on Cr. Procedure, 183, 184; Quinn v. Heisel, 40 Mich. 576; In re Sarah Way, 41 Mich. 299; Commonwealth v. Carey, 12 Cush. 246.2 This court has held that city council may lawfully authorize police officers to arrest upon view any person found in the act of violating the ordinances of the city, made for the preservation of good order and public convenience. White v. Kent, 11 Ohio St. 550. Also that the officer in making arrest upon view is not bound to disclose his official character. Wolf v. State, 19 Ohio St. 248. And that it is lawful to arrest, without warrant, one who is unlaw- fully carrying a concealed weapon, though the officer had no previ- ous knowledge of the fact if he acted bona fide upon knowledge which induced an honest belief that the person was violating the law in this respect. Ballard v. State, 43 Ohio St. 340. But the facts in those cases disclose that the person arrested was taken while in the act of committing the offense for which he was apprehended, while in the case under consideration the evidence tended to show that the defendant acted upon information only, and that the affray was over, and public order restored before he attempted to pursue or arrest the supposed offender. which see Tiner v. State, 44 Tex. 128 (1875)] ; Webb v. State, 51 X. J. L. 189 (1889), semble, Percival v. Bailey, 70 S. Car. 72 (1904), and Baltimore & Ohio R. Co. V. Cain, 81 Md. 87 (1895). ^Accord: Kurtz v. Moffiti, 115 U. S. 487 (1885), arrest of deserter from the United States army; Sharrock v. Hannemcr, Cro. Eliz. 375 (1595); Cohen v. Hus/cisson, 2 M. & W. 477 (1837) ; Ross v. Leggett, 61 Mich. 445 (1886) ; People v. McLean, 68 Mich. 480 (1888) ; Percival v. Bailex, 70 S. Car 72 (1904) ; Thome v. Turd;, 94 N. Y. 90 (1883), and Fox v. Gaun}, 3 B. & Ad. 798 (1832), both cases of arrest for obtaining money under false pretenses; Pmkerton v. Verberg, 78 Mich. 573 (1889), and State ex rel. Kingsley v. Pratt, 22 Hun 300 (N. Y. 1880), women arrested as "street-walkers"; but see Smith v. Donelly, 66 111. 464 (1873), where an owner of a horse and wagon which had been untied, unlawfully taken and drawn oflf bv mischievous boys, was held justified in arresting them while still driving the horse, though the taking was not a felony but a high misdemeanor; and see State v Dietz 59 Kans. 576 (1898). 980 BALTIMORE &C. R. CO. V. CAIX. BALTIMORE & OHIO R. CO. v. CAIN. Court of Appeals of Maryland, 1895. 81 Md. 87. McSnERRY, J., delivered the opinion of the Court. During the progress of the trial, which resulted in a verdict and judgment forthejiLaintiff^four exceptions were reserved and the defendanFtTTeiTtook the pending appeal. The plaihtiff with three companions, including one by the name of Watkins, were passengers on the defendant's train going to Washington, D. C. They entered the ladies' car, and while, the evidence was conflicting, the testimony for the defendant was to the effect that they were intoxicated and behaved in a disgraceful, shocking and disorderly manner, using profane language so obscene as to drive the female passengers from the car. Many of the other passengers complained to tlTe conductor, who feeling himself unable to cope with them and personally eject them, telegraphed to Wash- ington for an officer to arrest them. When the train reached Wash- ington the policeman was there, and the^nductor pointing out the plaintiff, arrested him. and took him to theStation house, where the conductor appearing against him he was fined five dollars.^ With these facts before the jury, there were two prayers pre- sented by the plaintiff, both of which were granted ; and there were nine presented by the defendant, all of which, except the sixth, were rejected. The view we take of the case dispenses with a separate consideration of each of these prayers, inasmuch as the defendant's fifth prayer raises the crucial inquiry contained in the record ; and what w^e shall say in discussing the prayer will, with a few brief additional observations, dispose of most, if not all, of the others. The fifth prayer maintains that if the plaintiff was riotous and dis- orderly the conductor had the right to eject him; that if the con- ductor was unable to do this by reason of the threat of resistance, then the conductor was justified in requesting the first police officer whom he could find to arrest the plaintiff; and it proceeds, "if the jury further find, that the police officer at the Washington depot was the first police officer the conductor saw, and that the conductor used due diligence in procuring a police officer, and that the con- ductor directed the police officer to arrest the plaintiff for said dis- orderly conduct, that the defendant is not liable for this arrest, and the verdict of the jury must be for the defendant." From this prayer, considered in connection with the evidence to which allusion has been made, it is obvious at a glance that the predominant and controlling question before us involves the legality of the conceded arrest made in the city of Washington. Under the undisputed proof that arrest was made without a warrant having been first procured. It was not made for an alleged felony, nor for a misdemeanor or breach of the peace committed within view of the officer who took ^ The statement of facts is condensed from those given in the opinion of the Court. BALTIMORE &C. R. CO. V. CAIN. 981 the plaintiff into custody ; but, if the evidence of the defendant's witnesses be credited, it was made for a flagrant breach of the peace, which began at Washington Grove and continued into Washington City, on the moving train of the defendant, and was made at the instance of the conductor the very moment he reached a place where he could deliver these intoxicated offenders into the custody of a police officer. Was the arrest so made illegal ? It is settled that an officer has the right to arrest without a war- rant for any crime committed with.iii_Iii5_Ykw. It was his duty to do so at the common law, and this is still the law. Roddy v. Finne- gan, 43 Mo. 504; Phillips v. Trull, 11 Johns. 486; Derecourt v. Cor- bishlv, 5 El. & Bl. 188 f and in cases of felony he may arrest upon I information, without warrant, where he has reasonable cause. Rex V. Birnie, i ISIoody & R. 160; Rohan v. Saivin, 5 Cush. 281. And so any person, though not an oflficer, in whose view a felony is com- mitted, may arrest the offender. Rnloif v. People, 45 N. Y. 213. But the right of a person not an oflficer to make an arrest is not confined to cases of felony, for he may take into custody, without a warrant, onewJuQ in his presence is guilty of an affray or a breach of_the__peacer- Knot v. Gay, i Root, 66. "It seems agreed that any one who sees others fighting may law f uny_2glLI^lgJQU- and-^lso-stay--- them till the heat b^~over, and ITrefTHeliver them to the constable, who may carry them before- a^ justice of the4)eacej^ijri order to their finding sureties for the peace."^ i Rus. on Crimes, 272 ; i Arch. Crim. Prac. & PI. 82; i Haw. P. C, ch. 63, sec. ii and 17; 2 Hale P. C, 90; East P. C, 306; Timothy v. Simpson, 1 C. M. & R. 757. The case last cited was one of trespass for assault and false impris- onment and taking the plaintiff to a police station. Plea, that the defendant was possessed of a dwelling house and the plaintiff en- tered the same and then and there insulted, abused and ill-treated the defendant and his servants, and greatly disturbed them in the peaceable enjoyment thereof in breach of the peace, whereupon the defendant requested the plaintiff to cease his disturbance and to depart from and out of the house, which the plaintiff refused to do ; and thereupon the defendant, in order to preserve the peace and restore good order in the house, gave charge of the plaintiff to a po- liceman, and requested the policeman to take the plaintiff into his custody to be dealt with according to law, and the policeman gently laid his hands on the plaintiff and took him into custody. It ap- peared in evidence that the plaintiff entered the defendant's shop to purchase an article, when a dispute arose between the plaintiff and the defendant's shopman ; that plaintiff' refused on request to go out of the shop ; the shopman endeavored to turn him out and an affray ensued between them ; that the defendant came into the shop during the affray, which continued for a short time after he came ^ But see Note 1 to State v. Lewis, ante, p. 977. ^A witness to any breach of the peace may summon the police and give the offender unto custody. Ingle v. Bell, 1 M. & W. 516 (1836) ; Cohen v. Hiiskisso)!, 2 M. & \V. 477 (1837). So when the constable though present fails to act, a bystander may call on him to do his duty and make the arrest, Derecourt v. Corhishley, 5 E. & B. 188 (1855). 982 BALTIMORE &C. R. CO. V. CAIN. in ; that the defendant then requested the plaintiflf to leave the shop quietly ; but he refusing to do so, the defendant gave him in charge to a policeman, who took him to a station house. Parke, B., in course of his lucid opinion, said, "it is unquestionably true that any bystander may and ought to interfere to part those who make an affray, and to stay those who are going to join in it till the affray be ended. It is also clearly laid down that he may arrest the affray- ers and detain them until the heat be over, and then deliver them to a constable." Then quoting from Haw. P. C, the same passage we have transcribed from i Rus. on Crimes, the learned Baron went on, "and pleas founded upon this rule and signed by Mr. Justice Buller are to be found in 9 Went. Plead. 344, 345, and DeGrey, C. J., on the trial, held the justification to be good. It is clear, therefore, that any person present may arrest the affrayer at the moment of the affray, and detain him until his passion has cooled and his desire to break the peace has ceased, and then deliver him to a peace officer. And if that be so, what reason can there be why he cannot arrest an aft'rayer after the actual violence is over, but whilst he shows a dis- position to renew it by persisting in remaining on the spot where he has committed it ? Both cases fall within the same principle, which is, that, for the sake of the preservation of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his acts.* In truth, whilst those are as- sembled who have committed acts of violence and the danger of their renewal continues, the affray itself may be said to continue ; and during the affray the constable may not merely on his own view. ■'Accord: Cohen v. Hiiskisson, 2 M. & W. 477 (1837) note: Price v. Sceley,\() CI. & F. 28 (1843) ; Quinn v. Heisel. 40 Mich. 576 (1879). Sim- ilarly either a private person or an officer has the right to arrest one, who though not having previously broken the peace, gives such person or officer, by his overt acts, reasonable ground to apprehend that unless arrested he will immediately break the peace, but the mere fact that the plaintiff is still at the place where he has previously broken the peace will not justify the belief that he intends to renew the affray, Quinn v. Heisel, 40 Mich. 576 (1879), nor will the past commission of a misdemeanor together with oppor- tunity to repeat it justify an arrest, Pinkcrton v. I'erberg, 78 Mich. 573 (j889), Reg. v. Mabel, 9 C. & P. 474 (1840), Knot v. Gay, 1 Root 66 (Conn. 1774). "Preventive measures to be effective, must be taken on the appearance of things. It is too late, after the mischief is accomplished" — Hayes v. Mitchell, 80 Ala. 183 (1885). Any person is entitled to restrain one who is about to commit a felonv and keep him in custodv until he can be handed over to a constable, Handcock v. Baker, 2 B. & P. 2'60 (1800). 'The right of a private person arresting or causing the arrest depends on the actual guilt of the person arrested, suspicion, no matter how reason- able, gives no such right, Palmer v. Maine Cent. R. Co., 92 Maine 399 (1899) ; and see Cook v. Nethercote, 6 C. & P. 741 (1835). As to the right of a peace officer to arrest on reasonable suspicion of a breach of the peace, or criminal offence less than felonv. compare Shanley v. JVcils. 71 111. ?8 (1873), Phillips v. Fadden, 125 Mass. 198 (1878), Gold v. Armer, 140 App. Div. 73 (X. Y. 1910) ; and State v. Hunter, 106 X. Car. 796 (1890), with State v. Johnson, 5 Harr. 507 (Del. 1853). and McCnllough v. Commonwealth. 67 Pa. 30 (1870) ; and see Palmer v. Maine Cent. R. Co.. 92 Maine 399 (1899), and Enright v. Gibson, 219 111. 550 (1906), construing the provisions of the Illinois Criminal Code. BALTIMORE &C R. CO. Z: CAIX. 983 but on the information and complaint of another, arrest the of- fender ; and, of course, the person so complaining is justified in giv- ing the charge to the constable. Lord Hale, P. C, 89 * '■'' * It is clear upon facts that there was a defence on the ground of the de- fendant's right to arrest for a breach of the peace in his presence." See also Grant v. Moser, 5 M. & Gr. 127 ; Simmons v. Milligan, 2 C. B. 524; Webster v. Watts, 11 Q. B. 311 (63 E. C. L. R.) ; Cohen v. Huskision, 2 M. & W. 477; Sliazv v. Cliairitie, 3 C. & K. 21 ; Burns V. Erben, 40 N. Y. 466; Smith v. Donnelly, 66 111. 464; Tiedeman on Lim. Police Power, 84; State v. Sims, 16 S. Car. 486 — a case strikingly opposite. Now, if it be true that the plaintiff was guilty of the reprehen- sible and disorderly conduct attributed to him by the witnesses, he was incontestably engaged in a flagrant and outrageous breach of 1 the peace, as pronounced as if there had been an actual affray dur- ing the whole time he was in the defendant's car ; and it was clearly lawful, under these conditions, for the conductor to expel him and his drunken companions from the train if he had a sufficient force to overcome their threatened resistance, or else to arrest them all without warrant and then deliver them to the first peace officer he could procure within a reasonable time. If this were not so, then, / as said by Lord C. J. Denman in Webster v. Watts, supra, "the/ peace of all the world would be in jeopardy." And it would be in jeopardy because if in such and similar instances no arrest could be lawfully made without a warrant, the culprit, "if transient and un- known, would escape altogether," before a warrant could be ob- tained. Mitchell V. Lemmon, 34 Md. 181. And there would soon cease to be any order or any security or protection afforded the pub- lic on swiftly moving railroad trains, or even elsewhere, unless a peace officer were constantly present. The delay necessarily inci- dent to obtaining a warrant would be in many, if not in most cases of this and a kindred character, equivalent to an absolute immunity from arrest and punishment ; and should the name of the oft'ender be unknown, he most probably never would be apprehended if once suffered to depart. The law is not so impotent and ineft'ective as that. Being physically unable to expel these alleged riotous persons from the train, the conductor telegraphed for a peace officer, and without delay, and whilst the plaintiff was still drunk, caused his arrest the instant the officer thus summoned came in view of the plaintiff. If, then, any bystander could, in the language of Baron Parke, "for the sake of the preservation of the peace * * * restrain the liberty of him whom he sees breaking" the peace, the act of the conductor in telegraphing for the policeman and within a short space of time thereafter handing the plaintiff' over to the officer, was in no respect different from a formal arrest of the plaintiff by the conductor, in the midst of the riot and disorder, and the prompt delivery of him afterward to the officer. If the plaintiff was not in fact arrested by the conductor because of the presence of superior resisting force, that fact cannot make the subsequent act of the conductor in point- ing out the plaintiff to the officer, wrongful or illegal. The charge, 984 WAHL t'. WALTON. according to the plaintiff's own testimony, was sustained; a fine was imposed and he paid it. The accusation was therefore well- founded,'^ and what was done by the conductor, if the facts testified to by the defendant's witnesses be credited, was undeniably lawful under all the circumstances. If this be so, then there is obviously no cause of action against the defendant, because no wrong has been done to the plaintiff. This is the theory of the defendant's fifth prayer. That prayer being correct in principle and proper in form ought to have been granted. Judgment reversed with costs above and below, and new trial awarded. WAHL V. WALTON. Supreme Court of Minnesota, 1883. 30 Minn. 506. GiLFiLLAN, C. J. Gen. St. 1878, c. 105, § II, provides: "A peace officer may, without a warrant, arrest a person — First, for a public offense committed or attempted in his presence ; second, when a person arrested has committed a felony, although not in his presence ; third, when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have com- mitted it ; fourth, on a charge made, upon reasonable cause, of the commission of a felony by the party arrested." This action is for false imprisonment. The defendant justi- fies the imprisonment as upon an arrest of plaintiff, made by him, then a police ofiicer of the city of Minneapolis, without a warrant, for a violation, in his presence, of an ordinance of that city. There was evidence tending to show that, about noon, the plaintiff violated the ordinance in the presence of defendant. The defendant did not then attempt to make the arrest, but went about his other duties during the afternoon, and arrested plaintiff at 5 or 6 o'clock in the evening. There was also evidence tending to show that plaintiff was committing a similar violation of the ordinance at the time of the arrest. The court instructed the jury, in effect, that if plaintiff* was, at the time of the arrest, committing a violation of the ordi- nance, that would justify the arrest, though without a warrant, but that defendant had no authority to arrest in the evening for a vio- lation at noon. At the common law, a constable might, without warrant, arrest for a breach of the peace committed in his view. 4 Bl. Com. 292. But it was well settled that in case of an offence not a felony, the arrest must have been made at the time of, oj within a reasonable time after, its commission. Regina v. Walker, 25 Eng. Law & Eq. 589 ; Cook V. Nethercote, 6 C. & P. 741 ; Clifford v. Brandon, 2 Camp. 358; Derecourt v. Corbishley, 5 El. & Bl. 188; Phillips v. Trull, 1 1 John. 486 ; Taylor v. Strong, 3 Wend. 384 : Meyer v. Clark, 41 N. Y. Sup. Ct. 107. In case of felony actually committed, al- though not in his presence, he might, upon probable suspicion, arrest without a warrant. The reason for the distinction lay in the greater LEGER V. WARREN, 9^5 gravity of the latter class of offences, and the greater importance to the public of bringing the offenders to punishment. When it is said that the arrest must be made at the time of or immediately after the oft'ence, reference is had, not merely to time, but rather to sequence of events. The officer may not be able, at the exact time, to make the arrest ; he may be opposed by friends of the offender ; may find it necessary to procure assistance ; consider- able time may be employed in the pursuit. The officer must at once set about the arrest, and follow up the effort until the arrest is effected. ]n Regina v. Walker, supra, some two hours had elapsed between. the offence and the arrest, and it was held that the authority to arrest was gone, because there was no continued pursuit ; and the same was held in Meyer v. Clark, supra, because the officer had de- parted and afterward returned, the court saying, the shortness of the interval does not affect the question. In this case, some five hours having elapsed between what occurred at noon and the arrest, dur- ing which the defendant was not about anything connected with the arrest, the court was right in its instructions that there was no au- thority to arrest for that occurrence. The record of the plaintiff's conviction before the municipal court was res inter alios acta, and therefore not competent. Order affirmed.^ 7 LEGER V. WARREN. Supreme Court of Ohio, 1900. 62 Ohio St. SCO. Williams, J. It was shown on the trial, that the plaintiff was arrested by the defendant officers without warrant, as alleged in the petition, and was imprisoned after such arrest for a period of more than five days, withput.any.^warrant for his detention, and without any~cTiarge"Tiaving been made against him before any competent tribunal, or opportunity allowed him for a trial ; that during his imprisonment he frequently demanded to be informed of the nature of the charge on which he was detained, and to be taken before a proper court for a hearing thereon ; and that, at the end of the period named, when he was discharged from prison, no complaint had been filed against him, nor trial allowed him. These facts were not disputed. The evidence of the defense was directed entirely to the establishment of good cause for the arrest, and to the subject of damages. There was no impropriety, therefore, in the court treat- ing as undisputed the facts above stated and no complaint is urged here on that account. The objection made, is to that part of the charge by which the jury were instructed, in substance, that though the defendants making the arrest or causing it to be made, had goo HI- -"^PP- 180; Lawrence v. Hagerman, 56 111. 68; Davis V. Seeley, 91 Iowa 583.) But no matter V^ow f^1sp.?^n d damaging the c harge^may_Jie-m-P a cri minal proceeding upon which a warrant may be^issued, damages for t he inj uTy_raiispd thereby ran not uriderany ordi nary _ci rcum - gfar^pg bpT^n^rprpH j n au actiou for libel~or~iTan derT —Therefore, it follows that a person who has most grievously injured another by falsely making a serious criminal accusation against him whereon a warrant has been actually issued, may escape all liability by procuring the warrant to be withheld unless an ac- tion for malicious prosecution will lie. It seems to me that under such circumstances we should hold that such action will lie, if for no other reason than to satisfy that principle of law which demands an adequate remedy for every legal wrong. Deciding, therefore, that the appellant's complaint does state a cause of action, we are brought to the direct consideration of the respondent's answer. I do not think that there is such substantial difference between the two defenses which are questioned as calls for any separate treatment of them. Liberally construed, as the pleader is entitled to have them in the face of a demurrer, each one amounts to this, that the appellant fled from Mexico before the warrant could be served on him for the purpose of avoiding serv- ice, and remained out of the country and beyond the jurisdiction of the court for such a length of time that the criminal proceeding was finally dismissed, presumably because prosecution was not and could not be carried on. The question is whether a dismissal or discontinuance of a criminal proceeding under such circumstances is that kind of a termination which will support an action for mali- cious prosecution. If it is, the answers are bad ; otherwise, not. , While it is elementary that a crimi naLftroce eding mu st-^ ter- minated before an action for malicious prosecution can be begun,* ' Citing Howard v. Thompson, 21 Wend. 319, 324 (N. Y. 1839) ; Woods v. IViman, 47 Hun 362, 364 (N. Y. 1866) ; Sheldon v. Carpenter, 4 N. Y. 579. 580 (1851) ; Dale v. Harris, 109 Mass. 193 (1872) : Gabriel v. McMulUn, 127 Iowa 426 (1905) ; Hamilton v. Eno, 81 N. Y. 116 (1880) ; Newell on Malicious Pros- ecution, sec. 10. » * "Otherwise he might recover in the action and yet be convicted in the original prosecution", Fisher v. Bristow, 1 Douglas 215 (1779), and see cases ^ cited in note to Graves v. Scott, 2 L. R. A. N. S. 927 (1905), pp. 927-928.. Therefore the statute of limitations does not run until the original prosecu- tion is terminated, Rider v. Kite, 61 N. J. L. 8 (1897). This is equally so in an action for the malicious prosecution of civil actions and for the same reason, Bonney v. King, 103 III. App. 601 (1902), 201 111. 47 (1903) ; Wilson V. Hale, 178 Mass. Ill (1901). But if the nature of the proceeding is such that the plaintiff has no opportunity to make a defense and it is thus impos- sible for the proceedings to terminate in his favor, as where the proceedings are ex parte and the court or magistrate has no discretion but acts as it were ministerially upon the defendant's complaint, an action will lie if the pro- ceedings are without probable cause and malicious, Steward v. Gromett. 7 C- I004 HALBERSTADT V. NEW YORK LIFE INS. CO, there has been much discussion of the nature of this necessary ter- mination. The best idea of what is essential may be gathered by reference to some pertinent authorities. In Wilkinson v. Hozvell (22 E. C. L. R. 368; I M. & M. N. P. 495) it appeared that the court in the criminal proceeding com- plained of had ordered a stet processus with the consent of the par- ties. It was said by Lord Tenterden, "That the termination (of the criminal proceeding) must be such as to furnish prima facie evi- dence that the action was Avithout foundation," and that the termina- tion in question did not furnish any such evidence.^ In McCormick v. Sisson (7 Cowen, 715, 717) criminal proceed- ings were suspended because the parties declared that they had set- tled all matters of difficulty between them. The court held that there was no proper termination of the proceeding, saying: "It is essential that the plaintiff prove he has been acquitted. The dis- charge must be in consequence of the acquittal. The action can not be sustained unless the proceedings are at an end by reason of an acquittal." In Gallagher v. Stoddard (47 Hun, loi) it appeared that the plaintiff, after being arrested, paid the officer having him in custody some money, which was receipted for by the defendant and the of- ficer, and he was thereupon discharged. It was held that this was not enough. In Atwood V. Beirne (73 Hun, 547) it appeared that there had been cross-criminal proceedings and it was arranged that the re- spective complainants should be absent on the days to which the proceedings were adjourned and each complaint thus fell for want of prosecution. It was held that this was not a sufficient termina- tion to support a subsequent action for malicious prosecution. In Jones v. Foster (43 App. Div. 33, 35) it was said that the theory on which such an action as this is sustainable "is that the proceeding out of which the action arose has terminated success- fully to the defendant, exonerating him from the charge made." In Leyenberger v. Paul (40 111. App. 516) it was established that there had been an adjournment of the criminal proceedings to a certain day and that the attorney for the defendant in that pro- B. (N. S.) 191 (1859), peace warrant issued on information before a magis- trate that the plaintiff had used threatening language, Hyde v. Grench, 62 !vld. 577 (1884), — aliter, where the plaintiff was held to bail to keep the peace after a hearing. Hill v. Egan, 160 Pa. St. 119 (1894), — Steward v. Gromett, 7 C. B. (N. S.) 191 (1859), — an attachment issued upon the defendant's oath that the plaintiff had left the country with intent to defraud his creditors ; Blimp v. Beits, 19 Wend. 421 (N. Y. 1838). So in McSwain v. Edge, 6 Ga. App. 9 (1909), it was held that an action would lie by a tenant evicted under a summary warrant obtained ex parte by the defendant, his landlord, there being no way after eviction for arresting the process or for forming an issue thereon. But the mere fact that there is no right of appeal from a conviction by a justice after hearing does not warrant an indirect review of the con- viction in an action of malicious prosecution, Basebe v. Matthews, L. R. 2 C. P. 684 (1867). ° He also says, "If this should be allowed, the defendant would be de- ceived by the consent, as without that he would certainly have gone on with the action, and might have shown a foundation for it. HALBERSTADT V. NEW YORK LIFE INS. CO. IOO5 ceeding in violation of his agreement went before the magistrate and procured the dismissal of the charge for want of prosecution. It was held that this was not sufficient, the court saying: "But a nolle prosequi by consent, or by way of compromise, or where such exemption from further prosecution has been demanded as a right, or sought for as a favor, is not enough. * * * Xhe principle of the cases is that the discharge or acquittal must be by judicial action under such circumstances as that the party accused has not avoided or prevented judicial investigation." And it has been held in many different jurisdictions under varying circumstances that the entry of a nolle prosequi by the prosecuting officer or the termination of a criminal proceeding by the procurement of the party prosecuted or by his consent or by way of compromise is not such a termination of a prosecution as will enable the party thereby discharged to maintain an action for ma- licious prosecution. {Langford v. B. & A. R. R. Co., 144 Mass. 431 ; Russell v, Morgan, 24 R. I. 134; Craig V. Ginn, 94 Am. State Repts. yy ; Welch v. Cheek, 115 N. C. 310; Marcus v. Bernstein, iiy N. C. 31 ; Holliday v. Holliday, 123 Cal. 26; Rosenberg v. Hart, 33 111. App. 262; Marbourg v. Smith, 11 Kans. 554.)® From all of these authorities added to others which are more familiar I think two rules fairly may be deduced. The first one is\ that where a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution.^ The other and reverse rule is that ^Accord: Emery v. Ginnan, 24 111. App. 65 (1887) ; Wickstrom v. Swan- son, 107 Minn. 482 (1909) ; Baxter v. Gordon, Ironsides and Fares, 13 Ont. L. R. 598 (1906) ; but see Craig v. Hasell, 4 A. & E. (N. S.) 481 (1843). So where one charged with embezzlement is discharged on payment of the money which he was charged with taking, Fadner v. Filer, 27 111. App. 506 (1888) ; but see White v. Int. Book Co. and Darley v. Donath, infra. Note 8. A discontinuance or abandonment of a civil suit upon a compromise or payment of the amount claimed is not a termination of it, Sartwell v. Parker. 141 Mass. 405 (1886) ; Rounds v. Humes, 7 R. I. 535 (1863) ; Forster v. Orr, 17 Ore. 447 (18893. But the accused, though present in person or by attorney, need not object to the proceedings being dropped, Lamprey v. Hood, 72> N. H. 384 (1905), he or his counsel may even protest against his being held any longer on the charge and so lead the state's attorney to enter a nolle prosequi, Driggs v. Burton, supra. Where the magistrate refuses to consider an agreement to settle a felony, but hears the case and discharges the accused, an action for malicious prosecution was held to lie, Van Voorhes v. Leonard, 1 Thomps. & C. 148 (N. Y. 1873). ' It is not necessary that the termination shall be such as to preclude another prosecution for the same offense, it is enough that it is a final deter- mination of the present proceeding, "so that it can not be revived but the prosecutor if he wishes to proceed further, must institute proceedings de novo;' Graves V. Scolt, 104 Va. 372 (1905); Vinal v. Core, 18 W. Va. 1 (1881) ; Leyenberger v. Paul, 40 111. App. 516 (1890). But if the prosecutor, notwithstanding that a warrant is dismissed by a magistrate, proceeds with the prosecution as by procuring an indictment to ioo6 HALBERSTADT V. NEW YORK LIFE INS. CO. where the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and con- sideration by the court, there is no such termination as may be be presented to the grand jury, which prosecution is still pending or has terminated in the conviction of the accused, such subsequent prosecution is held in Hartshorn v. Smith, 104 Ga. 235 (1898), to be in effect a continuation of the original prosecution; accord: Schippel v. Norton, 38 Kans. 567 (1888), prosecution before a justice of the peace withdrawn by district attorney and the same day a new prosecution begun in the district court; Hales v. Raines, 162 Mo. App. 46 (1911), involuntary non-suit suffered in a civil case and a second action thereafter begun for same cause, and see Rogers v. MnlUns, 26 Tex. Civ. App. 250 (1901). The earlier English cases required that there should be an acquittal by a jury after a trial on the merits, Pantsune v. Marshall, Sayer 162 (1754), Morgan v. Hughes, 2 T. R. 225 (1788), or at least a determination in favor of the accused upon the merits, Goddard v. Smith, 6 Mod. 261 (1704), 1 Salk. 21, 2 Salk. 456, 3 Salk. 245, as to the present state of the English law see Clerk and Lindsell on Torts, 6th ed. 700-702 (1912), citing Dclegal v. Highley, 3 Bing. N. C. 950 (1837), and Craig v. Hasell, 4 A. & E. (N. S.) 481 (1843). Dicta to the same effect occur in many early American cases, Monroe v. Maples, 1 Root 553 (Conn. 1793) ; Williams v. Woodhouse, 3 Dev. .Law 257 (N. Car. 1831); Hibbing v. Hyde, 50 Cal. 206 (1875); Scott and Bovd V. Shelor, 28 Grat. 891 (Va. 1877), and cases cited in the note to Graves v. Scott in 2 L. R. A. (N. S.) 927, pp. 930-932. But the later American cases do not, as a rule, require an acquittal after a trial on the merits. Where the accused is discharged by the court having jurisdiction, whether a trial or appellate court or a committing magistrate or a justice of the peace, this is generally held a sufficient termination of the case, though it is sometimes held that the plaintiff must show that the prose- cution has been thereafter abandoned. Page v. Citizen's Banking Co., Ill Ga. 73 (1900) ; Dreyftis v. Aul, 29 Nebr. 191 (1890) ; Waldron v. S perry, 53 W. Va. 116 (1903) ; and see Hartshorn v. Smith and Schippel v. Morton, supra. The charge may be dismissed and the accused discharged by the court itself, Delegal v. Highley, supra; Findlev v. Buchanan, 1 Blackf. 12 (Ind. 1818) ; Sayles v. Briggs, 4 Mete. 421 (Mass. 1842) ; Rider v. Kite, 61 N. J. L. 8 (1897) ; Secor v. Bahcock, 2 Johns. 203 (N. Y. 1807) ; Mentel v. Hip- pely, 165 Pa. St. 558 (1895), and see Zebley v. Storey, 117 Pa. St. 478 (1888), semble; Graves v. Scott, 104 Va. 372 (1905). and cases cited in the note thereto in 2 L. R. A. (N. S.) 927, at pp. 933-935, either after a hear- ing on the merits, Cascarella v. National Grocer Co., 151 Mich. 15 (1908), or without a hearing; Smith v. Clark, 37 Utah 116 (1910) ; McDonald v. Na- tional Art Co., 125 N. Y. S. 708 (1910) ; but see Whaley v. Lawton, 57 S. Car. 256 (1899), though no action lies where the magistrate, after holding the ac- cused to bail, illegally discharged him without bail, Hill v. Egan, 160 Pa. St. 119 (1894). The accused may be discharged by order of a court after a grand jury had ignored the bill of indictment, Graves v. Daivson, 130 Mass. 78 (1881) ; Stewart v. Thompson, 51 Pa. St. 158 (1865) ; Taylor v. Dominick, 36 S. Car. 368 (1891) ; Knecland v. Spitzka, 10 Jones & Spencer 470 (N. Y. 1877) ; Hower V. Lezvton, 18 Fla. 328 (1881), aliter, in some jurisdictions where though the grand jury has ignored the bill, there has been no discharge by order of the court, Buller, J. in Morgan v. Hughes, 2 T. R. 225 (1788); Thomas v. De Graff enreid, 2 Nott & McC. 143 (S. Car. 1819) ; Knott v. Sargent, 125 Mass. 95 (1878); contra. Potter v. Casterline, 41 X. J. L. 22 (1879), and Weisncr v. Hansen, 81 N. J. L. 601 (1911); Wells v. Parker, 76 Ark. 41 (1905); Schoonover v. Myers, 28 111. 308 (1862) ; Horn v. Sims, 92 Ga. 421 (1893) ; Auer v. Mauser, 6 Pa. S. C. 618 (1898), but mere failure to find a true bill HALBERSTADT V. NEW YORK LIFE INS. CO, IOO7 availed of for the purpose of such an action. The underlying dis-j tinction which leads to these different rules is apparent. In one case the termination of the proceeding is of such a character as es- tablishes or fairly implies lack of a reasonable ground for his prose- cution. In the other case no such implication reasonably follows. (Townsend on Slander, section 423.) When we apply these rules to the defenses which have been at the first term of the court is not enough. Von Koehring v. Witte, 15 Tex. Civ. App. 646 (1897). Or he may be discharged after an indictment has been quashed, Hays V. Blizcard, 30 Ind. 457 (1868), though on motion of counsel for the ac- cused, Lytton V. Baird, 95 Ind. 349 (1883) ; McKensie v. M. P. R. Co., 24 Mo. App. 392 (1887), or on the refusal of the prosecution to give security for costs, Cascbeer v. Rice, 18 Nebr. 203 (1885). The accused may be discharged because the prosecutor abandons the prosecution and withdraws the complaint. Brown v. Randall, 36 Conn. 56 (1869) ; Clegg v. IVaterbury, 88 Ind. 21 (1882) ; Beemer v. Beemer, 9 Ont. L. R. 69 (1904) ; Shaul v. Brozuti, 28 Iowa 37 (1869) ; Bell v. Mathews, 37 Kans. 686 (1887), or because the State Attorney fails to appear or to proceed with the prosecution, Swensgaard v. Davis, 33 Minn. 368 (1885), especially when no further steps are taken to press the charge. Fay v. O'Neill, 36 N. Y. 11 (1867) ; Waldron v. Sperry, 53 W. Va. 116 (1903), or requests the court to dismiss the charge, South. Car & Foundry Co. V. Adams, 131 Ala. 147 (1901) ; Welch v. Cheek, 115 N. Car. 310 (1894). An abandonment of or a failure to proceed with the prosecution is held in many cases to be sufficient though no action is taken by the court either in discharging the accused or releasing his securities or giving leave to the prosecutor to abandon the prosecution, Craig v. Ginn, 3 Penn. 117 (Del. 1901); Green v. Cochran, 43 Iowa 544 (1876); Leever v. Hamill, 57 Ind. 423 (1877); Pharis V. Lambert, 1 Sneed 228 (Tenn. 1853); contra, Clark V. Cleveland, 6 Hill 344 (N. Y. 1844) ; Apgar v. Woolston, A3 N. J. L. 57 (1881); Holmes v. Johnson, Busbee 44 (N. Car. 1852); Rice v. Ponder, 7 Ire. L. 390 (N. Car. 1847) ; Murray v. Lackey, 2 Murphy 368 (N. Car. 1818) ; Lneck V. Heisler, 87 Wis. 644 (1894), and Gillespie v. Hudson, 11 Kans. 163 (1893) ; Strehlow v. Pcttit, 96 Wis. 22 (1897), but see King v. Johnston, 81 Wis. 578 (1892); Walker v. Curran, 1 Phila. 113 (Pa. 1850), but compare Murphy v. Moore, supra. Some of the earlier cases state in general terms that a plaintiff cannot maintain an action for a malicious criminal prosecution by indictment, by show- ing *:hat the prosecution has been determined by a nolle prosequi, Shaw, C. J. in Parker v. Farley, 10 Cush. 279 (Mass. 18521; Goddard v. Smith, supra; though a plea of not guilty accepted by the Attorney-General was in the latter case said to be sufficient ; the tendency of the later cases is, how- ever, to hold that, when the accused was thereupon discharged, there is a sufficient termination, Graves v. Dawson, 133 Mass. 419 (^1882), semble: Stanton V. Hart, 27 Mich. 539 (1873); Douglas v. Allen. 56 Ohio St. 156 (1897); Driggs v. Burton, 44 Vt. 124 (1871), a discharge by the court but not by formal order; Hatch v. Cohen, 84 N. Car. 602 (1881), and this though the court grants leave to issue, at some later time, a capias on the same bill, if in fact the prosecution is never renewed, Wilkinson v. Wilkinson, 159 N. Car. 265 (1912). The withdrawal of the charge by the State Attorney is held a sufficient termination in Fancourt v. Heaven, 18 Ont. L. R. 492 (1909). When the prosecuting attorney merely enters a nolle prosequi without further action by the court, this is held sufficient in Murphy v. Moore, 11 Atl. 665 (Pa. Sup. Ct. 1887); Thompson v. Price, 100 Mich. 558 (1894); Yocwn V. Polly, 1 B. Monr. 358 (Ky. 1841) ; Woodman v. Prescott, 66 N. H. 375 (1890); Marcus v. Bernstein, 117 N. Car. 31 (1895); Woodworth v. Mills, 61 Wis. 44 (1884), nolle prosequi entered with leave of the court; Moulton V. Beecher, 8 Hun 100 (N. Y. 1876) ; accord: Graves v. Scott, 104 I008 HALBERSTADT V. NEW YORK LIFE INS. CO. pleaded it is evident that they sufficiently allege a termination of the Alexican Proceeding which is not of a character to sustain this action, and ought not to be. That proceeding came to a dismissal and end, not because of any judicial action in favor of the accused Va. 372 (1905), semhle, expressly overruling Ward v. Rcasor, 98 Va. 399 (1900), contra. Contra: Craig v. Ginn, 3 Penn. 117 (Del. 1901) ; Parker v. Farley, supra, semble: Coupal v. Ward, 106 Mass. 289 (1871) ; Caring v. Fraser, 76 Maine 27 (1884) ; Driggs v. Burton, supra, semble; Heyward v. Cuthbert, 4 AlcCord 354 (S. Car. 1827); Smith v. Shackleford. 1 Nott & McC. 36 (S. Car. 1817) ; and see Hurd v. Shaw, 20 111. 355 (1858). A discharge on habeas corpus, the prosecution being then abandoned, is held in Zeblcy v. Storey, 117 Pa. St. 478 (1888> : Hollidav v. Hollidav, 123 Cal. 26 (1898): Millar v. Sollitt, 131 111. Apn. 196 0907); see Walker v. Martin, 43 111. 508 (1867), to be a sufficient termination; contra, McKinnon V. McLaughlin Carriage Co.. Z7 New Brunswick, 3 (1904) ; Merriman v. Morgan, 7 Ore. 68 (1879) ; Haglin \; A*^>^le, 65 Ark. 274 (1898) : Szvartwout V. Dickelman, 12 Hun 358 (N. Y. 1877) ; Hinds v. Parker, 11 App. Div. Z27 (N. Y. 1896). In those jurisdictions in which an action lies for malicious prosecution of a civil action, such action must be shown to have so terminated that it cannot be revived, though a new action may be brought on the same cause of action, Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585 (1904) ; McNamee v. Minke, 49 Md. 122 (1878); Blalock v. Randall, 76 111. 224 (1875). The action being entirely in the control of the plaintiff therein, his dismissal, discontinuance, or failure to proceed with it for such time as pre- cludes further prosecution of it is universaljv held to be a sufficient termina- tion. Pierce v. Street, 3 B. & Ad. 397 (1832) ; Emery v. Ginnan. 24 111. App. 65 (1887); Coffey v. Myers, 84 Ind. 105 (1882); Burhans v. Sanford, 19 Wend. 417 (N. Y. 1838) ; Hurgren v. Ins. Co., supra; Norrish v. Richards, 3 A. & E. 733 (1835); Cameron v. Fergusson, 3 U. C. Q. B. (O. S.) 318 (1834). An action maj- be brought after judgment though the time for moving for a new trial or for an appeal has not elapsed, Foster v. Denison, 19 R. I. 351_ (1896); Marks v. Townsend, 97 N. Y. 590 (1885), and see Carter v. Paige, 80 Cal. 390 (1889). But an action cannot be maintained if an ap- peal is actually pending, Griffith v. Ward, 22 U. C. Q. B. 31 (1863) ; How- ell v. Edwards, 8 Ired. L. 516 (N. Car. 1848) ; Sutton v. Van Akin, 51 Mich. 463 (1883) ; Spring v. Besore, 12 B. Monr. 551 (Ky. 1851) ; Reynolds v. De Geer, 13 111. App. 113 (1883), appeal from judgment of a justice, which va- cated the judgment and rernoved the case to the district court for trial de novo; contra, Marks v. Toivnsend, supra, an appeal only furnishes a reason for staying the trial of the action for malicious prosecution till the appeal be determined, Liiby v. Bennett, 111 Wis. 613 (1901), semble. When the plaintiff is arrested or his property seized or attached in a civil action, if the arrest, seizure or attachment is wrongful only in that the princi- pal action is improperly brought, it must be shown that such action is termi- nated, Parton v. Hill, 12 W. R. 754 (1864) ; lohnson v. Finch, 93 N. Car. 205 (1885), plaintiff, actually about to leave the state, arrested for debt, and see Murson v. Austin, 2 Phila. 116 (Pa. 1856). When the process is awarded for arrest of the plaintiff, or attachment or seizure of his goods, upon an application setting forth the facts, not involving the merits of the principal action, it is enough that the order of process be vacated, dismissed or abandoned, Ingram v. Root, 51 Hun. 238 (X. Y. 1889); Zinn v. Rice, 154 Mass. 1 (1891), p. 12; Bank of Miller v. Richmon, 64 Nebr. Ill (1902); Hogg v. Pinckney, 16 S. Car. 387 (1881); Tisdale v. Kingman, 34 S. Car. 326 (1890) ; Pixley v. Reed, 26 Minn. 80 (1879), though if it be granted on ex parte application the plaintiff having no opportunity to defend or vacate, Griffith v. Hall, 26 U. C. Q. B. 94 (1866) ; Erickson v. Brand, 14 Ont. App. R. 614 (1888) ; Fortman v. Rotticr, 8 Ohio St. 548 (1858); Donnell v. Jones, 13 Ala. 490 (1848), and see Rossiier v. HALBERSTADT V. NEW YORK LIFE INS. CO. IOO9 for lack of merits or because of a withdrawal or abandonment of it by the prosecuting party, but simply because the defendant there- in succeeded in escaping from the country and eluding the juris- diction of the court and thereby preventing a prosecution. He by his flight, as in other cases the accused had done by agreement, set- tlement or trick, prevented a consideration of the merits, and he ought not now to be allowed to claim that there were no merits.* In opposition to these views it is insisted by appellant that there is a line of cases which treats the discharge of the defendant in the criminal proceeding as a mere technical condition precedent to the action for malicious prosecution and sustain his theory that the dis- missal of the proceeding against him was sufficient for the pur- poses of this action, specific reference being made to the cases of Clark V. Cleveland (6 Hill, 344) ; Moiilton v. Bcccher (8 Hun, too) ; Fay v. O'Neill (36 N. Y. 11) ; Coffey v. Myers (84 Ind. 105), and Robbins v. Robbins (133 N. Y. 597).'' * * * It is, however, the Robbins case upon which the appellant most relies. In that case it appeared that the accused had been dis- charged in the criminal proceeding after a hearing by a police jus- tice and the only question was whether she was discharged because there was not sufficient evidence against her or whether she was erroneously discharged as a matter of sympathy upon her promise of good behavior. This question was one of fact for the jury, which presumably resolved it in favor of the plaintiff. But even if the justice under the circumstances was actuated by erroneous or improper motives in discharging her, it nevertheless beyond any question was a sufficient termination of the proceeding under all of the authorities bearing on that subject, and on either theory the Minn., etc. Co., 37 Minn. 296 (1887), or if to procure the release of himself or his goods he is forced to pay the demand or give bond for paj^ment, the execution of the process is itself a sufficient termination, Spaids v. Barrett, 57 111. 289 (1870) ; Brand v. Hinchman, 68 Mich. 590 (1888), see Cadwell v. Corey, 91 Mich. 335 (1892), and compare Rachelman v. Skinner, 46 Minn. 196 (1891). * When, however, the plaintiff alleged that the criminal charge was false and that he had fled the jurisdiction because a conspiracy existed to pre- vent him from establishing his innocence and that the proceedings were dis- missed because the originators thereof "became convinced that they could not maintain the prosecution," an action for malicious prosecution was held to lie in Coffey v. Myers, 84 Ind. 105 (1882). The payment of costs by the accused on being discharged by the magistrate after a hearing on the merits, he being told that unless he did so he would have to go back to jail, does not constitute a consent on his part to the termination of the proceedings, Cascarclla v. National Grocer Co., 151 Mich. 15 (1908), and an action of malicious prosecution lies by one, who being arrested on a writ, pays the amount claimed under protest to obtain his liberty, and such payment does not preclude him from showing want of probable cause, Morton v. Young, 55 Maine 24 (1867) ; White v. International Text Book Co., 136 N. W. 121 (Iowa 1912); and see Brand v. Hinchman, 68 Mich. 590 (1888), payment no bar to action for suing out malicious attachment, and Daily v. Donath, 100 111. App. 52 (1901), where the criminal process was abused by its use as a means of enforcing payment of a debt claimed to be due. ® A portion of the opinion, reviewing Clark v. Cleveland, Moulton v. Beecher, Fay v. O'Neill and Coffey v. Myers, is omitted. lOIO HALBERSTADT V. NEW YORK LIFE IXS. CO. basis was laid for an action of malicious prosecution. Under these circumstances the learned judge who wrote the opinion made use of some expressions which interpreted by themselves are quite broad and general and are quite confidently quoted by this appel- lant. He said, among other things: "It can not in reason make any difference how the criminal prosecution is terminated, provided it is terminated. * * * The circumstances under which she (the plaintiff in that case) is discharged may furnish competent evidence upon the issue of probable cause and malice, and on the question of damages. * * '■• The termination of the criminal proceeding is a mere technical matter in no way concerning the merits of the action and is a mere condition precedent to its main- tenance." (P. 600.) In my opinion these remarks should not be construed as mean- ing and were not intended to mean what the appellant claims. For instance, it is not possible that it was intended to disregard the en- tire current of authority that a termination of criminal proceedings by agreement or settlement is not such an one as will support an ac- tion for malicious prosecution, and yet literally the language em- ployed would include that case. We must construe the language used by Judge Earl in the light of the events he was considering, and these were the discharge of an accused by a magistrate acting judicially even though erroneously after a hearing. This was what the judge had in mind when, after discussing the effect of a con- viction, he mentioned the other termination resulting "favorably to the accused or without his conviction," as sufficient. And when he said "It can not in reason make any difference how the criminal prosecution is terminated provided it is terminated," he immediate- ly referred as illustrating his meaning to the case then in hand, wdiere the accused had been duly discharged by the justice although as claimed erroneously. Termination as the result of judicial con- sideration and decision was what he was talking about and this was the kind he contemplated when with his concluding words he said : "Therefore any termination such as we have above men- tioned, as a general rule, furnishes the condition precedent." (P. 600.) Therefore, I think that these cases do not either singly or col- lectively sustain the burden which appellant has sought to impose especially upon them of furnishing an authority for the reversal of the order appealed from, and for all the reasons stated the latter should be affirmed, with costs, and the questions certified to us an- swered in the negative. Vann, J. I concur in the result because there was merely an attempt to prosecute with no actual prosecution. The Mexican court did not acquire jurisdiction of the person of the plaintiff, for he was not arrested, nor was process or notice of any kind served upon him. He was not brought into court and the prosecution could not end because it was never begun. He could not be a party defendant until he was notified or voluntarily appeared. He was threatened with prosecution, but neither his person nor his prop- QUARTZ HILL MIX. CO. Z'. EVRE. lOII erty was touched. There can be no prosecution unless knowledge thereof is brought home to the alleged defendant in some way. If there had been a prosecution commenced the crime could not have outlawed during the defendant's absence, as is admitted of record. While in civil actions, in order to arrest the Statute of Limitations, "an attempt to commence an action, in a court of rec- ord, is equivalent to the commencement thereof," still the attempt goes for naught unless followed by service, actual or constructive, within sixty days. (Code Civ. Proc, sec. 399.) The rule was similar at common law. Although, in order to prevent injustice, an action was deemed to be commenced by the delivery of process for service, it was never treated as effectual for any purpose un- less actual service was subsequently made. The authorities cited in the prevailing opinion illustrate this proposition. In the absence of controlling authority, which it is conceded does not exist, I favor restricting rather than enlarging the scope of the action. This accords with the general position of the court upon the subject. Gray, Haight and Chase, JJ., concur with Hiscock, J. ; Cul- LEN, Ch. J., and Willard Bartlett, J., concur with Vann, J. Order affirmed. (2) Nature of the proceedings. QUARTZ HILL GOLD MINING COMPANY v. EYRE. Court of Appeal, 1883. Lazv Reports 1882-83, 11 Q. B. D. 674. BowEx, L. J. The plaintiff company complains that the de- fendant falsely and maliciously presented a petition to wind it up.^ When the action came on to be tried before Stephen, J., at the con- clusion of the plaintifif's case the learned judge nonsuited the com- pany, on the ground that if the action would lie under any circum- stances, at all events it would not lie without proof of special dam- age. Without actually deciding the point, he expressed an opinion that the plaintiff company had failed to make out malice or a want of reasonable or probable cause, and the burden of proving each of these elements in the case lay on the company. He thought that the defendant had pointed out a fatal blot in the company's case by reason of a failure to shew such special damage as would main- tain the action. The first question to be considered is, whether an action willl I lie for falsely and maliciously presenting a petition to wind up a| company ; and the second is, whether an action will lie without f ur- ^ It was averred in the complaint and proved at the trial that the de- fendants had upon the presentation of the petition advertised the same in the London Gazette and other papers, and that two days before the pres- ent action was brought, the petition was dismissed by the court and wholly determined in the plaintiff's favor. IOI2 QUARTZ HILL MIX. CO. V. EYRE. ther proof of special damage than was presented to the judge in this case. I think that both the questions can be answered at once because, as it seems to me, the discussion which exhausts the one, presents the materials for determining the other. I start with this, that at the present day the bringing of an action under our present rules of procedure, and with the consequences attaching under our present law, although the action is brought falsely and maliciously and without reasonable or probable cause, and whatever may be the allegations contained in the pleadings, will not furnish a ground for a subsequent complaint by the person who has been sued, nor support an action on his part for maliciously bringing the first ac- tion. To speak broadly, and without travelling into every corner of the law, whenever a man complains before a court of justice of the false and malicious legal proceedings of another, his complain t, in o rder to give a good and substantial cause of action^ must shew tha t the fals e and malicious legal proceedings have been accom- panie d by damTrge express or implied. The reason~wTry7Tb my rhmd, the bringing ot an action under our present rules of proced- ure and under our present law, even if it is brought without rea- sonable or probable cause and with malice, gives rise to no ground of complaint, appears to me easily to be seen upon referring to the doctrine laid down by Holt, C. J., in Sav'ile v. Roberts, i Ld. Raym. 374, at p. 378. He there said that there were three sorts of dam- age, any one of which would be sufficient to support an action for malicious prosecution, "(i) The damage to a man's fame, as if the matter whereof he is accused be scandalous. And this was the ground of the case between Sir Andrew Henley and Dr. Burstall : Raym. 180. * * * (2) The second sort of damages, which would support such an action, are such as are done to the person ; as where a man is put in danger to lose his life, or limb, or liberty, which has been always allowed a good foundation of such an ac- tion.- * * * (3) The third sort of damages, which will sup- port an action, is damage to a man's property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused, which is the present charge. That a man in such case is put to expenses, is without doubt, which is an injury to his property, and if that injury is done to him malicious- ly, it is reasonable that he shall have an action to repair himself." It is clear that Holt, C. J., considered one of those three heads of damage necessary to support an action for malicious prosecution. To apply this test to any action that can be conceived under our present mode of procedure and under our present law, it seems to me that no mere bringing of an action, although it is brought mali- I /See Byyie v. Moore, 5 Taunt. 187, 1 Marsh 12 (1813), where a bill of indictment was preferred for assault and battery but ignored by the grand jury and the accused was not arrested — held no action lay, the indictment not containing "scandal" — (as to this see Clerk and Lindsell on Torts, 6th ed., 693) and Mitchell v. Donanski, 28 R. I. 94 (1906), warrant obtained, never served but abandoned, charging acts not constituting any crime, held not actionable unless the offence charged is actionable slander per se or the plaintiff can show special damage. QUARTZ HILL MIX. CO. V. EYRE. IOI3 ciously and wiihout reasonable or probable cause, will give rise to an action for malicious prosecution. In no action, in all events in none of the ordinary kind, not even in those based upon fraud Avhere there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action. Incidentally matters connected with the ac- tion, such as the publication of the proceedings in the action, may do a man an injury; but the bringing of the action is of itself no injury to him. When the action is tried in public, his fair fame will be cleared, if it deserves to be cleared ; if the action is not tried, his fair fame can not be assailed in any way by the bringing of the action. Apply the second head of damage, namely, those injuries which are done to the person; the bringing of no action under our present law and under the ordinary rules of procedure will involve as a necessary and natural consequence damage to the person. The third sort of damage, the existence of which will sup- port such an action as this, is damage to a man's property. The same observation applies to this third head of damage. The bring- ing of an ordinary action does not as a natural or necessary conse- quence involve any injury to a man's property, for this reason, that the only costs which the law recognizes, and for which it will com- pensate him, are the costs properly incurred in the action itself. For those the successful defendant will have been already compen- sated, so far as the law chooses to compensate him.^ If the judge refuses to give him costs, it is because he does not deserve them : if he deserves them, he will get them in the original action ; if he does not deserve them, he ought not to get them in a subsequent action. Therefore the broad canon is true that in the present day/ and according to our present law, the bringing of an ordinary ac/ tion, however maliciously, and however great the want of real- sonable and probable cause, will not support a subsequent actioii: for malicious prosecution.* I do not say that if one travels into ^ "The common law has made provision to hinder malicious and friv- olous and vexatious suits, that every plaintiff should tind pledges, who were amerced, if the claim was false; which judgment the court always gave, and then a writ issued to the coroners, and they affeered them according to the proportion of the vexation. See 8 Co. 39 b, F. N. B. 76 a" (Fitzherbert de Natiira Brcvium). '"But that method became disused and then to supply it, the statutes" (4 Jac. 1 c 3 and 8 Eliz. c 2) "gave costs to the defendant. And though the practice of levying amercements be disused, yet the Courts must give judgment according to the law and not vary their judgments by accidents. But there was no amercement upon indictments, and the party had not anv remedy- to reimburse himself but by action" — Holt, C. J, in Saville v. Roberts, 1 Ld. Ravm. 374 (1700), p. 380; and see Putnam, J., in Lindsay v. Lamed, 17 }\Iass. 190 (1821). * Accord: Tamblyn v. Johnston, 126 Fed. 267 (C. C. A. 8th Circ. 1903) semble: Mitchell v. Southwestern R. Co., 75 Ga. 378 (1^98) ; Smith v. Mich- igan Buggy Co., 175 111. 619 (1898); IVetmare v. McUinger, 64 Iowa 741 (1884) ; Cade v. Yocum, 8 La. Ann. 477 (1852) ; McNamee v. Minke, 49 Md. 122 (1878); Supreme Lodge, etc., v. Unverzaqt, 76 Md. 104 (1894); Wood- inansie v. Logan, 2 N. J. L. (1 Penn.) 93 (1806) ; Potts v. Imlay, 4 N J L (1 South.) 330 (1816) ; Bits v. Mycr, 40 N. J. L. 252 (1878) ; Paul v. Pargo 84 App. Div. 9 (_X. Y. 1903). Adams, P. J., dissenting on the ground that the injury to his reputation caused by the charge, practically amount- IOI4 QUARTZ HILL MIN. CO. V. EYRE. the past and looks through the cases cited to us, one will not find scattered observations and even scattered cases which seem to shew that in other days, under other systems of procedure and law, in which the consequences of actions were different from those of the present day, it was supposed that there might be some kind of action which, if it were brought maliciously and unreasonably, might subsequently give rise to an action for malicious prosecution. V"^ It is unnecessary to say that there could not be an action of that kind in the past, and it is unnecessary to say that there may not be such an action in the future, although it can not be found at the present day. The counsel for the plaintiff company have argued this case with great ability ; but they can not point to a single instance since Westminster Hall began to be the seat of justice in which an ordinary action, similar to the actions of the present day, has been considered to justify a subsequent action on the ground that it was brought maliciously and without reasonable and probable cause. And although every judge of the present day will be swift to do justice and slow to allow himself as to matters of justice to be en- cumbered with either precedents or technicalities, still every wise judge who sits to administer justice must feel the greatest respect for the wisdom of the past presents us with no decisive authority for the broad proposition in its entirety which, the counsel for the plaintiff company have put forward. But although an action does not give rise to an action for ma- licious prosecution, inasmuch as it does not necessarily or naturally involve damage, there are legal proceedings which do necessarily and naturally involve that damage ; and when proceedings of that kind have been taken falsely and maliciously, and without reasonable or probable cause, then, inasmuch as an injury has been done, the law gives a remedy. Such proceedings are indictments — I do not say every indictment, but I mean all indictments involving either scan- dal to reputation or the possible loss of liberty to the person, that ing to one of larceny, upon which the original action was based, constituted a special or added grievance; Willard v. Holmes, Booth & Hayden, 142 N. Y. 492 (1894), semblc; Terry v. Davis, 114 N. Car. 31 (1894); Cincinnati Daily Tribune Co. v. Bruck, 61 Ohio St. 489 (1899), Kramer v. Stock, 10 Watts 115 (Pa. 1840); Muldoon v. Rickey, 103 Pa. St. 110 (1883); Mitchell V. Donanski, 28 R. I. 94 (1906); Johnson v. King, 64 Tex. 226 (1885): Abbott V. Thome, 34 Wash. 692 (1904) ; Luby v. Bennett, 111 Wis. 61 (1901), setnble. In Mitchell v. Southwestern R. Co., Terry v. Davis, and Abbott v. Thome, 34 Wash. 692 (1904), it is said that such an action lies when special damage, other than that which necessarily result from all prosecutions of like causes, is shown; in JVillard v. Holmes et al., 142 N. Y. 492 (1894), that it lies where the party "has been subjected to some special or added griev- ance," but the residue of the sentence seems to confine actionable special grievances to interferences with persons or propert.v, and even such actions, it is said, ought not to be encouraged, and in Jl'efmoce v. Mellinger, 64 Iowa 741 (1884), it is said that if the action be so prosecuted as to entail unusual hardship upon the defendant, he ought to be compensated, see Pangburn v. Bull, 1 Wend. 345 (N. Y. 1828), defendant brought action after action, dis- continuing the one and starting another, and Pope v. Pollock, 46 Ohio St. 367 (1889), advantage taken of the peculiar incidents of a statutory action in or- der to harass the plaintiff and subject him to special loss of property and reputation. QUARTZ HILL MIX. CO. I'. EVRE. IOI5 IS, all ordinary indictments for ordinary offences. In its very na- ture the presentation or the prosecution of an indictment involves damage, which cannot be afterwards repaired by the failure of the proceedings, to the fair fame of the person assailed, and for that reason, as it seems to me, the law considers that to present and prosecute an indictment falsely and without reasonable or prob- able cause, is a foundation for a subsequent action for malicious prosecution. But there are other proceedings which necessarily involve dam- age, such as the presentation of a bankruptcy petition against a trader. In the past, w'hen a trader's property was touched by making him a bankrupt in the first instance, and he was left to get rid of the misfortune as best he could, of course he suffered a di- rect injury to his property. But a trader's credit seems to me to be as valuable as his property, and the present proceedings in bank- ruptcy, although they are dissimilar to proceedings in bankruptcy under former Acts, resemble them in this, that they strike home at ^ a man's credit, and therefore I think the view of those judges cor- rect who held, in Johnson v. Emerson, Law Rep. 6 Ex. 329, that the false and malicious presentation, without reasonable and prob- able cause, of a bankruptcy petition against a trader, under the Bankruptcy Act, 1869, gave rise to an action for malicious prose cution.^ '^Accord: Chapman v. Pickersgill, 2 Wils. 145 (1762) ; Stewart v. Sonne- born, 98 U. S. 187 (1878): Wilkinson v. Coodfelloiv, 141 Fed. 218 (1905); Lawton v. Green, 5 Hun 157 (N. Y. 1875); King v. Sullivan, 92 S. W. 51 (Texas Civ. App. 1906) ; McNamee v. Minke, 49 Md. 122 (1878), semble; Hess V. German Baking Co., 37 Ore. 297 (1900), semble. So an action lies against one who has maliciously obtained a temporary injunction. Such an injunction, it is said in Cincinnati Daily Tribune Co. V. Bruck. 61 Ohio St. 489 (1899), "imposes a restraint uponthe ownfer over his property, as hurtful to .him as if it were in fact seized;" Mitchell v. Southwestern R. Co., 7S Ga. 398 (1885) ; Crate v. Kohlsaat, 44 111. App. 460 (1892); Beach v. Williams, 79 N. W. 393 (Iowa 1899); Burt v. Smith, 84 App. Div. 47 (N. Y. 1903), compare Clements v. Odorless Excavating Ap- paratus Co., 67 Md. 461 (1887); Newark Coal Co. v. Upson, 40 Ohio St. 17 (1883); Hess v. German Baking Co., 37 Ore. 297 (1900), semble, in which the plaintifif failed, because owing to the death of the defendant he was forced to strike out of his declaration the averments of malice and want of probable cause; Williams v. Ainsivorth, 121 Wis. 600 (1904); but the injunction must have been dissolved and the main suit finally de- termined in the plaintiff's favor before an action will lie, Munce v. Black, 7 Ir. C. L. R. 475 (1858), dispossessory injunction obtained in a dispute between landlord and tenant; Williams v. Ainsworth, 121 Wis. 600 (1904), in which it was also held that the plaintiff must show that he was damaged by such injunction, and that no action lay for maliciously restraining the sale of goods in the absence of proof that they brought less when sold than they would have done Jiad their sale not been restrained. So in Slater v. Kimbro, 91 Ga. 217 (1892). it was held that a tenant, a boarding-house iceeper, against whom her landlord maliciously and without probable cause sued out and had executed a summarv statutory process to dispossess her, could recover the cost of procuring the bond and sureties required to prevent immediate eviction and damages for loss of board- ers caused thereby; and see Tavenner v. Morehead, 41 W. Va. 116 (1895); contra: ^^ Everlyv. Rupp, 90 Pa. St. 259 (1879), semble, writ of estrep- ment— "this writ is purely preventive, it neither arrests the person, nor IOl6 QUARTZ HILL MIN. CO. V. EYRE. I wish to suggest an analogy, not with the view of laying down any principle of law, but rather because it is a matter which may throw light on what I have been saying, and nothing which has fallen from the Master of the Rolls leads me to suppose that any- thing which I am about to say is contrary to what he thinks. In my opinion some, though perhaps not a perfect, analogy may be found in the law of libel and slander. The essence of the law as to libel and slander is that the words must be published falsely and maliciously. With regard to written words or libel, the law does not require proof of special damage, but with regards to some kind of slander or words spoken the law is different. I am aware that the point is controverted, and that it has never been exactly settled why this difference exists ; but it does exist, and it is remarkable that the cases in which words spoken are actionable, are either those where damage has been actually sustained, or where the dam- age is of such a kind as to be involved in the slander itself, that is to say, to be the natural and necessary consequence of the words spoken, as, for example, when the slander charges that a man has been guilty of an indictable offence which is criminal and scan- dalous in its character, and involves the loss of liberty or fair fame. What other slanders are actionable? Those which impute to a man a disease necessarily rendering him unfit for society, and those which touch a man in his trade or profession. Put those two classes together — the class of malicious prosecutions which the law recognizes and the class of slanders which the law recognizes — and although the two may not be based on exactly the same prin- ciples, perhaps a student may find material for pursuing the an- alogy between them. In the present instance we have to consider whether a petition to wind up a company falls upon the one side of the line or the other— rwhether, as the Master of the Rolls has said, it is more like an action which does not necessarily involve damage, and there- fore will not, however maliciously and wrongfully brought, justify an action for malicious prosecution, or whether it is more like a bankruptcy petition. I do not see how a petition to wind up a com- pany can be presented and advertised in the newspapers without striking a blow at its credit. I suppose that most of the lawyers of the present day have seen a great increase of three kinds of abuses, all of which are indulged in for the purpose of extorting the payment of some debt, which ought to be the subject of some civil redress. There is the abuse of the police courts when their process is used to extort money ; there is the abuse of the bank- ruptcy law ; and there is the abuse of the provisions in the Com- panies Act, 1862, for winding up companies. In all these three forms of abuse the aim is to wreck credit, and I should be sorry to seizes the goods of the defendant" ; and see Batson v. Paris Mountain Water Co., 72) S. Car. 368 (1906), where it is held that the remedy, if any, must be upon the bond required by statute and ordered by the court to be given by the complainant in the injunction proceedings, and Manlove v. Vick, 55 Miss. 567 (1878), doubting whether such remedy is exclusive. EASTIN V. BANK OF STOCKTON. IOI7 fhink that since they all involve a blow at the credit of those against whom they are instituted, the law did not afterwards place in the hands of the injured and aggrieved persons who have been wrong- fully assailed, a means of righting themselves, as far as can be, for the mischief done to them. I therefore answer the two first questions — whether this action will lie, and whether it will lie without further proof of special damage — in the following man- ner :// I think that the action will lie, for the reason that special damage is involved in the very institution of the proceedings )(\ynich ex hypothesi are unjust and without reasonable or prob- able cause) for the purpose of winding up a going company.® ' LORD HOLT, C. J., IN SAVILE v. ROBERTS. 1 Lord Raymond, 374 (1700), p. 379. "There is a great difference between suing an action mali- ciously and the indicting of a man maliciously. When a man sues an action he claims a right to himself or complains of an injury done to him ; and if a man fancies he has a right, he may sue an action, 4 Co. 17 (a) makes a difference, that if a man calls A, who is an heir at law to B a bastard, A may have an action against the man ; but if the man says A is a bastard, and I am heir to B, no action lies. If then the law will permit a man to make a claim out of a court of justice, a fortiori when he proceeds to assert his right in a legal course."^ EASTIN V. BANK OF STOCKTON. Supreme Court of the State of California, 1884. 66 Cal. Rep. 123. The cause, of action set forth in the complaint was in sub- stance, that the plaintiff had executed two promissory notes to Barney & Co., which notes he had paid at the defendant bank ; that after the notes had been paid the plaintiff lost them and the bank became possessed of them ; that the bank and its co-defendant Ho- gan, entered into a conspiracy for the purpose of extorting money from him by means of the possession of the notes and the plaintiff's "" Accord: Luby v. Bennett, 111 Wis. 613 (1901), application for the dissolution of a partnership and the appointment of a receiver, but the suit in which the appHcation was made must have terminated, Liquid Carbonic Acid Co. V. Convert, 82 111. App. 39 (1898). ^ See Lockenour v. Sides, 57 Ind. 360 (1877), where it is said that an ac- tion for malicious prosecution would lie against one maliciously and with- out probable cause instituting proceedings to place the plaintiff under guard- ianship as insane, "they being not entirely like a civil action, in which the plaintiff therein claims some right in herself. * * * The defendants were officious intermeddlers, without any claim of right or interest in the matter"; and see Smith v. Smith, 20 Hun 555 (N. Y. 1880), where it was held that an action would lie against one who maliciously and without prob- able cause filed a notice of "lis pendens" against the plaintiff's property to prevent her from selling it, with which compare Gerard v. Dickinson, post. I0l8 EASTIN V. BANK OF STOCKTON. supposed inability to produce evidence of their payment; that in pursuance of this conspiracy the defendant mahciousiy, wilfully and without reasonable or probable cause, and with the intent to vex, harass and injure the credit of the plaintiff, commenced an action in the district court for the recovery of the sum for which the notes were given ; that the process in that action was served upon the plaintiff who expended for counsel fees and costs the sum of $650; and that by reason of the commencement and prosecution of that action the plaintiff was damaged in the amount of $5,000, by injury to his credit, neglect of his business, etc. ; and the action 'resulted in a judgment for the defendant therein — the plaintiff" here. The answer of the defendants put in issue the material aver- ments of the complaint, and a trial was had with a jury, resulting in a verdict for the plaintiff for the sum of $3,000; and the judg- ment was entered against the defendants for that sum and costs. ^ Ross, J. As the case must be sent back for a new trial, it is proper to decide another question raised, and that is, whether in this state an action can be maintained for the malicious, prosecu- tion of a civil action, in which no process other than the summons was issued. The weight of the authorities, American as well as English, is against the maintenance of such an action ; and so are most of the text-writers. The question has never been determined in this State, and we are, therefore, at liberty to adopt the rule that we think is founded on the better reason. The point was made in the case of Smith v. George, 52 Cal. 344, but was not decided, the court holding that it was unnecessary to decide it, but remark- ing that "the adjudged cases in England and America are conflict- ing upon the question, and depending to a considerable degree, it would seem, upon the prevailing statutory provisions as to the re- covery of costs by the defendant upon the termination of a civil action in his favor." The cases are collected and reviewed by Mr. Lawson, in an instructive article upon the subject, published in the American Law Register, and which will be found in the 21st vol., at pages 281-353. The cases are too numerous to be here referred to in detail. The English cases which deny the right to maintain the action, stand upon the ground that the successful defendant is adequately compensated for the damages he sustains by the costs allowed him by the statute.- Those costs, it seems, include the at- ^ The facts are abridged from those stated in the opinion of Ross, I., a part of whose opinion is omitted, holding that the court below erred in leaving the question of probable cause to the jury and in instructing them that, if they found a verdict for the defendant, they should allow him for all he had paid out in defense in the original action, without regard to whether such expenditures were reasonable or not. ■ As to the remed3% before the enactment of such statutes, of one against whom an unsuccessful action was brought, see Holt, C. J., in Savile v. Roberts, Note 3 to Quartz Hill Gold Mining Co. v. Eyre. In Mitchell v. Southwestern R. Co., 75 Ga. 398 (1885), Blandford, J., says, p. 404, "before the statute of 52 Henry HI., 1277, it was the practice constantly to hold that, when one sued another maliciously and without probable cause, he was liable to such person for damages in an action of trespass on the case." EASTIN V. BANK OF STOCKTON. IOI9 torney's charge for preparing the case for trial in all its parts, the fees of the witnesses and the court officials, and even the hon- orarium of the barrister who conducted the case in court. The reason upon which the English rule rests would not, therefore, seem to apply here, where the costs recoverable under the statute are confined to much narrower limits. Under our system the de- fendant may be subjected, or he may subject himself, to expenses not recoverable, even if the suit terminates in his favor; but of this he has no legal ground to complain when the suit is brought and prosecuted in good faith, because, as said in Closson v. Sta- ples, 42 Vt. 209, "it is the ordinary and natural consequences of a uniform and well regulated system, to which all parties in civil actions are required to conform. But when the action is brought and prosecuted maliciously, and without reasonable or probable cause, the plaintiff asserts no claim in respect to which he had any right to invoke the aid of the law. In such cases the plaintiff, by an abuse of legal process, unjustly subjects the defendant to dam.- ages which are not fully compensated by the costs he recovers. The plaintiff, in such case, has no legal or equitable right to claim that the rule of law which allows a suit to be brought and prosecuted in good faith without liability of the plaintiff to pay the defendant damages, except by way and to the extent of the taxable costs, if judgment be rendered in his favor, should extend to a case where the suit was maliciously prosecuted without probable cause. But where the damages sustained by the defendant in defending a suit maliciously prosecuted without reasonable or probable cause, ex- ceed the costs obtained by him, he has, and of right should have, a remedy by action on the case. Two other objections made to the maintenance of the action — first, the claim that if such suits are allowed, litigation will become interminable, because every successful action will be 'followed by another, alleging malice in the prosecution of the former ; and, sec- ond, that if the defendant may sue for damages sustained by an unfounded prosecution, the plaintiff may equally bring an action when the defendant makes a groundless defense — are well an- swered in the article already alluded to : "To the first objection, it is enough to say that the action will never lie for an vmsuccessful prosecution, unless begun and carried on with malice and zvithout probable cause. With the burden of this difficult proof upon him, the litigant will need a very clear case, before he will be willing to begin a suit of this character. The second argument fails to dis- tinguish between the position of the parties, plaintiff and defend- ant, in an action at law. The plaintiff sets the law in motion ; but if he does so groundlessly and maliciously, he is the cause of the defendant's damage. But the defendant stands only on his legal rights — the plaintiff having taken his case to court, the defendant has the privilege of calling upon him to prove it to the satisfaction of the judge or jury, and he is guilty of no wrong in exercising this privilege."^ . "But see Hoyt v. Macou, 2 Colo. 113 (1873), where the defendant mali- ciously intervened to prevent the plaintiff from pre-empting public land. I020 BURT ■;:'. SMITH. Judgment and order reversed, and the cause remanded for ? new trial.* (3) Want of probable cause and malice. BURT V. SMITH. Court of Appeals of New York. 1905. 181 N. Y. 1. Vann, J. A malicious prosecution is one that is begun in nalice, without probable cause to believe it can succeed, and which finally ends in failure. An action for malicious prosecution is usually based upon an arrest in criminal proceedings, although it may be founded upon a civil action when commenced simply to harass and oppress the defendant. (Pangburn v. Bull, i Wend. 345; Vanduzor v. Linderman, lo Johns. io6; Bump v. Belts, 19 Wend. 421 ; Cooley on Torts, 187; 19 Am. & Eng. Encyc. Law (2d ed.), 652) damages are rarely recovered, however, for the malicious prosecution of a civil action unless person or property is interfered with by some incidental remedy, such as arrest, attachment or in- junction. As public policy requires that all persons should freely resort to the courts for redress of wrongs, the law protects them when they act in good faith and upon reasonable grounds in com- mencing either a civil or criminal prosecution. While malice is the root of the action, malice alone even when extreme, is not enough, for want of probable cause must also be shown. Prob - able cause is the knowledge nf fac ts, ^'-<-ii^1 '-"• ^ppRr^^^j strong enough to ju stify a reasonable m nn ""■ ^^""^ K^lipf that hp ligf^ law- f^ jl grounds for prosecuting the defendant in the manner co m- plain ed ot. 'i'he want of probable cause does not mean the want of any cause, but the want of any reasonable cause, such as would persuade a man of ordinary care and prudence to believe in the truth of the charge.^ Probable cause does not necessarily depend 'Accord: Cooper v. Armour, 42 Fed. 215 (Cir. Ct. N. Y. 1890), semble; Wade V. National Bank, 114 Fed. 2>77 (Cir. Ct. Wash. 1902) ; Berson v. Ewing, 84 Cal. 89; Whipple v. Fuller, 11 Conn. 582 (1836), the plaintiff's property was in fact attached, as it was in Wall v. Toomcy, 52 Conn. 35 (1884) ; Whitescll v. SUidy, 2,7 Ind. App. 429 (1906); Marbonrg v. Smith, 11 Kans. 554 (1873) ; Woods v. Finnell, 13 Bush 628 (Ky. 1878) : Antcliff v. June, 81 Mich. 477 (1890); MacPherson v. Runyon, 41 Minn. 524 (1889); Smith v. Burriis, 106 Mo. 94 (1891); McCormick Harvesting Mach. Co. v. Willan, 63 Nebr. 391 (1901); Kolka v. Jones, 6 N. Dak. 461 (1897); Lipscomb v. Schofner, 96 Tenn. 112 (1896) ; Closson v. Staples, 42 Vt. 209. In Allen V. Codman, 139 Mass. 136 (1885), an action for the malicious prosecution of an action of ejectment "the main question," is said by Holmes, J., "to be whether the court below was rij?ht in ruling that there was probable cause for the defendant's suit in ejectment." ^In Heyne v. Blair, 62 N. Y. 19 (1875), probable cause is said to be "such a state of fact and circumstances as would lead a man of ordinary caution and precedence, acting conscientiously, impartially, reasonably and without prejudice upon the facts within his knowledge, to believe the partv accused is guilty;" accord: Jordan v. Alabama G. S. R. Co.. 81 Ala. 220 (1887), p. 226; Kansas & Tex. Coal Co. v. Galloway, 71 Ark. 351 (1903). somewhat similar is the language of Shaw, C. J., in Bacon v. Towne, 4 Cush. BURT V. SMITH. I02I apon the actual guilt of the person prosecuted, but may rest upon the prosecutor's belief in his guilt when based on reasonable grounds. One may act upon what appears to be true, even if it turns out to be false, provided he believes it to be true- and the appearances are sufficient to justify the belief as reasonable. Be- lief alone, however sincere, is not sufficient, for it must be founded on circumstances which make the belief reasonable, li probable cause exists, it is an absolute protection against an action for ma- 217 (Mass. 1849), and Sterrett, J., in McClafferty v. ■P'"'^/'' 1 51 Pa St. 86 (1892), and see Tindal, C. J., in Broad v. Ham, 5 Bingh. N. C. 722 (18^9), p. 725, "There must be a reasonable cause— such as would operate in the muKl of a discreet man; there must also be probable cause— such as would operate in the mind of a reasonable man;" and Weaver, J., in Flam v. Lee, 116 Iowa 289 (1902), p. 298, and Dav, C, in Bank of Miller vRichm on, 64 Nebr 111 (1902), Thompson v. Beacon Vallev Rubber Co., 56 Conn. 49^ (1888). Robitcek v. Damn, 220 Pa. St. 61 (1908), and Davis v. McMillan, 142 Mich. 391 (1905), where the question of probable cause is said to de- pend upon what "an ordinarily fair and careful business man" would be likely to believe. In some cases it is said that there must be "a reasonable ground of suspicion, supported by circumstances . sufficiently strong in_ thernselves to warrant a cautious man in the belief, that the person accused is guilty of the offense with which he is charged"; Munns v. Dupont de Nemours, 3 Wash. C. C. 31 (1811) ; Foshav v. Ferguson, 2 Denio 617 (N. Y. 1846) ; Rtchev v. McBean, 17 111. 63 (1855); Wilson v. Bozven, 64 Mich. 133 (1887); Cole v. Curtis, 16 Minn. 182 (1870) ; Ash v. Marlozv. 20 Ohio 119 (1853) ; but in Mc- Clafferty v. Philp, 151 Pa. St. 86 (1892), the word "cautious" is held to be impropeV since it "suggests the idea of timidity"; accord: Eggetf v. Allen, 106 Wis. 633 (1900), but see same case 119 Wis. 625 (1903). Information from reputable sources may furnish reasonable cause. Lister v. Perryman, L. R.. 4 H. L. (E. & T. App.) 521 (1870); Bank of Miller v. Richmon, 64 Nebr. Ill (1902); Wilson v. Bozven, 64 Mich. 133 (1887); Baldwin v. Von der Ahe, 184 Pa. St. 116 (1898); Sfnith v. Ege, .52 Pa. 419 (1866), defendant acted on information of a detective employed by him to investigate a crime; and this though the informant being an al- leged accomplice of the plaintiff, could not testify against him, Dazvson v. Vansandau, 11 W. R. 516 (1863). It is held in Hicks v. Faulkner, L. R. 8 Q. B. Div. 167 (1878), that a defendant is acting reasonably in trusting to his memory which has in the past proved reliable, though on the partic- ular occasion it plays him false. The defendant's mistake may be one of fact, he may have suspected the plaintiff of criminal acts which he has never committed, or he may have erroneously believed that the plaintiff's actual conduct constituted the crime charged. Some cases intimate that an accuser, if he chooses to act with- out legal advice, must at his peril know the law. Wills v. Noyes, 12 Pick. 324 (Mass. 1832) ; Urban v. Tvscka, 16 Dist. R. 625 (Pa. 1907) ; Gaertner v. He\l, 179 Pa. St. 391 (1897) ; Hall v. Hawkins, 5 Humph. 357 (Tenn. 1844) ; while Whipple v. Gorsuch, 82 Ark. 252 (1907), holds that a "well founded doubt as to the law may constitute probable cause * * * the same as a doubt concerning the facts," Bramwell, B., in Johnson v. Emerson, L. R. 6 Exch. p. 329 (1871), semble, where the defendant was a solicitor prosecut- ing bankruptcy proceedings for a client. Where, however, the mistake is as to a difficult and disputed question of law. it is held that such mistake hon- estly entertained is reasonable cause, Fhilipps v. Navlor, 4 H. & N. 565 (1859), McCoy v. Kalbach, 51 Pa. Super. Ct. 364 (1912), but see Nehr v. Dobbs, 47 Nebr. 863 (1896). ' "It would be quite outrageous if, where a party is proved to believe a charge is unfounded, it were to be held that he could have reasonable and probable cause," Lord Denman, C. J., in Haddrick v. Heslop, and Raine. 12 Ad. & E. (N. S.) (Q. B.) 267 (1848) ; Broad v. Ham, 5 Bing. N. C. 722 (1839) ; Turner v. Ambler, 10 A. & E. (N. S.) (Q. B.) 252 (1847) ; Ball v. I022 BURT V. SMITH. licious prosecution, even when express malice is proved.' Thus an innocent person may be prosecuted unjustly and subjected to expense and disgrace with no right to call the prosecutor to ac- count, provided he acted upon an honest and reasonable belief in commencing the proceeding complained of. Peace and good order exact this hardship from the individual for the benefit of the peo- ple at large, so that citizens may not be prevented by the fear of the consequences from attempting to assert their own rights or to vindicate the cause of public justice by an appeal to the courts. {Hazard v. Fliiry, 120 N. Y. 223; Heyne v. Blair, 62 N. Y. 19; Farnam v. Feeley, 56 N. Y. 451 ; Carl v. Ayers, 53 N. Y. 14; Long Island Bottlers' Union v. Seitz, 180 N. Y. 243 ; Foshay v. Ferguson, 2 Den. 617; Bishop on Non-Contract Law, 238; Bigelow on Torts, 194; Addison on Torts, 592; Newell on Malicious Prosecution, 252.) Probable cause is always a question of law for the court, to be decided outright if there is no conflict in the evidence, other- wise by instructing the jury as to what facts if found will establish a want of probable cause.* In the case now before us the trial Rawls, 93 Cal. 222 (1892) ; Donnelly v. Burkett, 75 Iowa 613 (1887) ; Peck v. Chouteau, 91 Mo. 138 (1886); Kniscley v. Shcnbergcr, 7 Watts 193 (Pa. 1838) ; Spear v. Hiles, 67 Wis. 350 (1886). It is constantly said that the de- fendant's belief in the plaintiff's guilt must be "honest" as well as rea- sonable, Mitchell v. Wall. Ill Mass. 492 (1873); El Reno Gas Co. v. Spur- geon, 30 Okla. 88 (1911) ; Stewart v. Sonnehorn, 98 U. S. 187 (1878). So it is said that the test >is the defendant's belief based on reasonable grounds, Mitchell v. Logan, 172 Pa. St. 349 (1896). The innocence of the plaintiff is immaterial. El Reno Gas &c. Co. v. Spurjgcon, 30 Okla. 88 (1911), the existence of probable cause depends on the sufficiency of the facts which are known or ought to have been known to defendant when he prosecuted the plaintiff, Thompson v. Beacon Valley Rubber Co., 56 Conn. 493 (1888); Dclcgal v. Highlev, 3 Bingh. N. C. 950 (1837) ; Mitchell v. Logan, 172 Pa. St. 349 (1896) ; Seibert v. Price, 5 Watts & S. 438 (Pa. 1843); Mavnard v. Sigman, 65 Nebr. 590 (1902); Scott v. Shelor, 28 Grat. 891 (Va. 1877) ; cotitra. Final v. Core, 18 W. Va. 1 (1881), discussing the earlier cases. 'Accord: Johnstone v. Sutton, 1 T. R. 510 (1786), p. 545? Mitchell v. Jenkins, 5 B. & Ad. 588 (1833) ; Turner v. Ambler, 10 A. & E. (N. S.) 252 (1847); Stewart v. Sonneborn, 98 U. S. 187 (1878); Jordan v. Alabama G. S. R. Co., 81 Ala. 220 (1886) ; Ren fro v. Prior, 22 Mo. App. 403 (1886) ; Foshay V. Ferguson, 2 Denio 617 (N. Y. 1846), Diets v. Langfitt, 63 Pa. 234 (1869); this is equally so when the action is for maliciously instituting civil proceedings in which the person or property of the defendant therein is seized, Emerson v. Cochran, 111 Pa. St. 619 (1886). *'The question of probable cause is a mixed proposition of law and fact" says the court in Johnstone v. Sutton, 1 T. R. 510 (1786), "Whether the circumstances alleged to show it probable or not probable, are true and existed, is matter of fact; but whether supposing them true, they amount to probable cause, is a question of law; and upon this distinction proceeded the case of Reynolds v. Kennedy." It is however a question of law only in sense that it is to be determined by the judge, see Lords Chelmsford and Westbury in Lister v. Ferryman, L. R. 4 E. & I. App. 521 (1870), the latter regretting that the existence of such cause, which he says is "an in- ference of fact" which "must be derived from all the circumstances of the case," "is an inference to be drawn by the judge and not by the jury"; see also, Panton v. Williams, 2 Ad. & E. CN. S.) 169 (1841). As to the prac- tice in the earlier writ of conspiracy, see Coxe v. Wirrall, Cro. Jac. 193. The BURT V. SMITH. IO23 judge decided that probable cause existed and although he gave a wrong reason for his decision, we think his conclusion was right. The prima facie case made out by the order granting the injunc- tion was not overcome by the other evidence introduced by the plaintiffs. The case presented by them in the state court, so far as the question of probable cause is concerned, differed in no con- trolling feature from that presented to the Federal court when the injunction was granted. Aside from the alleged infringement of the registered trade-mark, there was still a prima facie case of infringement of the common-law trade-mark. While some new facts were proved, it did not appear that they were known to the de- fendant when he applied for the injunction. With some difference in detail, there was a general resemblance in the size, color and ap- pearance of the cough drops and packages used by the respective parties. The defendant had used his design in substantially the same form for nearly twenty years until it had become generally known as his property. It had been protected bv the judgments and orders of both state and federal courts in manv cases. The burden of proof was upon the plaintiffs to establish a want of probable cause, but we think their own evidence shows that the defendant had probable cause to commence the action and procure the injunction, because the packages and drops of the plaintiff resembled his own so closely as to be "calculated to de- ceive the careless and unwary." The average purchaser would not know the difference. weight of American authority is accord: Stetvart v. Sonnehorn 08 U S. 187 (1878); Whipple v. Gorsuch, 82 Ark. 252 (1907); Holliday v. Ilolli'dav. 123 Cal. 26 (1898), compare Johnson v. MtHer, 63 Iowa 529 (1884), with 69 Iowa 562 (1886), Ahrens v. Hocher. 106 Ky. 692 (1899) ; Cloon v. Gerry, 13 Gray 201 (Mass. 1859) ; Wilson v. Bowen, 64 Mich. 133 (1887) ; Bank of Miller v. Riclimon, 64 Nebr. Ill (1902) : Rawson v. Leggctt, 184 N. Y 504 (1906); Jones v. W. & W. R. Co., 125 N. Car. 227 (1889); Robitzek v. Danm, 220 Pa. St. 61 (1908) ; see, however, Ritter v. Emnng, 174 Pa. St. 341 (1896). But see Krehhiel v. Hcnkle. 142 Iowa 677 (1909), and Stiihbs v. Mul- holland, 168 Mo. 47 (1901); I-Iarris v. Quincy, Omaha & Kansas City R. Co., 172 Mo. App. 261 (1913). with which compare Carp v. Queen Ins. Co., 203 Mo. 295 (1907), p. 351, and Smith v. Glynn, 144 S. W. 149 (Mo. App. 1912). As to the proper method to be pursued bv the court when the facts are m dispute, see Bowen, J., in Abrath v. .V. E. R. Co., L. R. 11 Q. B. Div. 79 (1883), p. 455, where he points out three methods by which, where the functions of the court and jury can be principally adjusted, where there is conflictmg evidence as to the facts alleged to show the presence or absence of probable cause: (1) To charge a jury generally as to the effect of the evidence, leaving them to give a general verdict, this, as he points out. is extremely difficult to do clearly and satisfactorily where the facts are at all complicated. (2) To instruct the jury as to what facts, if proved, would show probable cause or show the absence thereof, leaving to them to determine which state of facts exist and to render a verdict in accordance with such state of evidence. This is the course usually pursued in America (See cases above cited and Thomas v. Smith, 51 Mo. App. 605 (1892).) (3) To require the jury to give a special verdict setting forth the actual state of facts which they find to exist. This practice, while usual in England, is hardly ever followed in America. I024 /- ) MUNNS V. DUPONT. MUNNS V. DUPONT et al. towt of United States, 1811. 3 B. Wash. U. S. C. C. 31. Washington, J. (charging the jury). The question upon which this cause must be decided, is not whether the plaintiff has suffered from a charge of which the defendants were the authors, and which was not founded in truth, but whether the charge was made maHciously, and without probable cause. In trials of actions of this nature, it is of infinite consequence to mark with precision, the line to which the law will justify the defendant in going, and will punish him if he goes beyond it. On the other hand, public justice and public security require, that offenders against the laws should be brought to trial and punishment, if their guilt be estab- lished. Courts and juries, and the law officers, whose duty it is to conduct the prosecution of public offenders, must in most instances, if not in all, proceed upon the information of individuals ; and if these actions are too much encouraged, — if the informer acts upon his own responsibility, and is bound to make good his charge at all events, under the penalty of responding in damages to the accused, few will be found bold enough, at so great a risk, to endeavor to promote the public good. The informer can seldom have a full view of the whole ground, and must expect to be frequently disap- pointed, by evidence which the accused only can furnish. Even if he be possessed of the whole evidence, he may err in judgment ; and in many instances a jury may acquit, where to his mind the proofs of guilt were complete. It is not always the fate of those to com- mand success, who deserve it. On the other hand, the rights of individuals are not to be lightly sported with ; and he who invades them, ought to take care that he acts from pure motives, and with reasonable caution. For the in- tegrity of his own conduct, he must be responsible ; and his sin- cerity must be judged of by others, from the circumstances under which he acted. If, without probable cause, he has inculpated an- other, and subjected him to injury, in his person, character, or estate, it is fair to suspect the purity of his motives, and the jury are warranted in presuming malice. But though malice should be proved, yet if the accusation appear to have been founded upon probable ground of suspicion, he is excused by the law. Both must be established against him viz. malice, and the want of probable cause. Of the former, the jury are exclusively the judges — the latter, is a mixed question of fact and law. What circumstances are sufficient to prove a probable cause, must be judged of, and decided by the court. But to the jury it must be referred, whether the circumstances which amount to probable cause, are proved by ^^ credible testimony or not. BowEN, L. J. in Abrath v. North Eastern Ry. Co. (1883), Law Reports 1882-83, 11 Q. B. D. 440. This action is for malicious prosecuHon, ancj in an SKEFFINGTON V. EYLWARD. 102$ action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge incon- sistent with the existence of reasonable and probable cause; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of jus- tice. All those three propositions the plaintiff has to make out, and if any step is necessary to make out any one of those three propositions, the burden of making good that step rests upon the plaintiff. SKEFFINGTON v. EYLWARD. Supreme Court of Minnesota, 1906. 97 Minn. Rep. 244. Start, C. J. This is an appeal by the defendant from an order of the district court of the county of Rice denying his motion for a new trial in an action for malicious prosecution, in which there was a verdict for the plaintiff for $250. The undisputed evidence establishes these facts : The defend- ant was chairman of the board of town supervisors of the town of Webster. Complaint having been made to him that the plaintiff had obstructed a public highway of the town, he investigated the charge, consulted with the county attorney with reference to the matter, and then made a complaint before the municipal court of the city of Northfield charging the plaintiff with such oft'ense. The plaintiff pleaded not guilty to the charge^ but upon a trial by the judge with- out a jury he was found guilty, and appealed from the judgment to the district court. The cause was dismissed and the plaintiff dis- charged in the district court upon motion of the county attorney. I. The first contention of the defendant is that the conviction of the plaintiff by the municipal court is conclusive evidence that the defendant had probable cause for instituting the prosecution. Therefore there was no evidence to support the verdict. The juris- diction of the municipal court of the city of Northfield in criminal cases triable within the county is the same as that of justice of the peace. We have, then, the question whether the conviction of a^j party in a justice or muncipal court, which is reversed on appeal of I the case to the district court, is conclusive or prima facie evidence/ of probable cause for instituting the prosecution. A number of cases, especially the earlier ones, holding that if the defendant in a criminal proceeding is convicted in the first in- stance, and appeals, and is acquitted in the appellate court, the con- viction below is nevertheless conclusive of probable cause for his prosecution.^ Cooley, Torts, *i85. Another class of cases, perhaps the greater number, hold that a judgment convicting the defendant '^Reynolds v. Kennedy, 1 Wils. 232 (1748): Herman v. Brookerhoff. 8 Watts 240 (Pa. 1839), semble: JVhitnev v. Peckham, 15 Mass. 243 (1818); Morrow V. Wheeler & Wilson Mfg. Co., 165 Mass. 349 (1896). I026 SKEFFIXGTON Z'. EVLWARD. in a criminal case, although reversed on appeal and the defendant acquitted, is conclusive proof of probable cause in an action by the defendant to recover damages for malicious prosecution, unless he alleges and proves that the judgment was obtained by fraud or per- jury.- Newell, Mai. Pros. 299: 19 Am. & Eng. Ency. (2d Ed.) 667. A third class of cases holds that a judgment convicting the de- fendant in a criminal proceeding, which is reversed on appeal, is not conclusive, but prima facie evidence of probable cause, which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the fact of the defendant's conviction in the first instance. I Jaggard, Torts, 618; Burt v. Place, 4 Wend. 591 ; Nicholson v. Sternberg, 61 App. Div. 51, 70 N. Y. Supp. 212; Goodrich v. Warner, 21 Conn. 432; Ross v. Hixon, 46 Kans. 550, 26 Pac. 955, 12 L. R. A. 760, 26 Am. St. Rep. 123 ; Barber v. Scott, 92 Iowa, 52, 59, 60 N. W. 497 ; Kchr v. Dobbs, 47 Neb. 863, 66 N. W. S64; Bechel v. Pacific, 65 Neb. 826, 91 N. W. 853.^ 'Accord: Crescent City Live Stock Landing &c. Co. v. Butchers' Union &c. Co., 120 U. S. 141 (1887); Holliday v. Holliday, 123 Cal. 26 (1898), justice of the peace binding plaintiff over to keep the peace; Thomas v. Muehlmann, 92 111. App. 571 (1900); Adams v. Bkknell, 126 Ind. 210 (1890); Blucher v. Zenker, 19 Ind. App. 615 (1898); Bozmnan v. Brown, 52 Iowa 437 (1879) ; Wit ham v. Gowen, 14 Maine 362 (1837) ; Pay- son v. Caswell, 22 Maine 212 (1842); Cloon v. Gerrv, 13 Grav 201 (Mass. 1859), semble; Schnider v. Montrose, 158 Mich. 263 (1909); Booqher v. Hough, 99 Mo. 183 (1889) ; Burt v. Place, 4 Wend. 591 (\. Y. 1830), scmblc; and see Burt v. Smith, 181 N. Y. 1 (1905) ; Grohmann v. Kirschman. 168 Pa. St. 189 (1895), semble; Welch v. Boston & P. R. Corp., 14 R. I. 609 (1884) ; Saunders v. Baldivin, 112 Va. 431 (1911). In Short v. Spragins. 104 Ga. 628 (1898), an order of a superior court granting an injunction and appointing a receiver was held to have a similar effect, aliter, where a court merely awards a temporary and provisional injunction pendente lite, Burt v. Smith, 181 N. Y. 1 (1905). A distinction is drawn in Indiana between a reversal of the judgment of an inferior court and such court's own action in setting- aside a conviction before it and granting a new trial, which is said to put the case as though it had never been tried, so that the conviction is no evidence of probable cause, Richter v. Koster, 45 Ind. 440 (1874"). _ A distinction is also sometimes made between a conviction by a magis- trate having power to try the charge and the action of an examining or committing magistrate in binding over or committing the nlaintiff. which latter is held to be prima facie evidence only, see Israel v. Brooks, 23 111. 575 (1860) ; Spalding v. Lowe, 56 Mich. 366 (1885) : Ross v. Hixon, 46 Kans. 550 (1891), and cases cited therein; see also, Johnston v. Meaghr, 14 Utah 426 (1894). ^"If, upon a full and fair trial, the evidence against the plaintiff was suf- |ficient to satisfy the court of his guilt, that circumstance will afford strong presumptive evidence of probable cause" — Waite, J. in Goodrich v. Warner. "If," says Williams, J., in Nicholson v. Sternberg, "the case is so weak that the defendant would be charged with want of probable cause in the absence of the decision of the justice, all rights the defendant is entitled to will be secured to him by making the decision prima facie evidence of probable cause, and requiring the plaintiff to overcome this prima facie case, and leav- ing the whole question of fact to the jury." In Moffatt v. Fisher, 47 Iowa 473 (1877) ; Olson v. Neal. 63 Iowa 214 (1884), and Nehr v. Dobbs, it was held that the prima facie effect of a conviction as of probable cause could be rebutted by showing that it was due to an error of law on the part of the judge, justice, or magistrate, while in Bechel v. Pac. etc. Co., committal by examining magistrate, Maynard v. Sigman, 65 Nebr. 590 (1902), a conviction by justices, it was said to be rebuttable by any evidence which destroyed its SKEFFINGTON V. EYLWARD. I027 It is difficult to see any substantial distinction between the first and second class of cases to which we have referred.* If the pre- probative value, while in Barber v. Scott, it was held that a verdict for the plaintiff would stand, though he had been convicted by a justice of the peace, if the jury could properly find that the defendant knew all the material facts and they were insufficient in law to support the charge, so that he must be taken to know their insufficiency. In McDonald v. Schroeder, 214 Pa. St. 411 (1906), it was held that where the defendant admitted on the trial of the original prosecution that he brought it for the improper purpose of collect- ing a debt due by the plaintifT, is bound to show that he had probable cause to believe him guilty of the crime charged notwithstanding the fact that he had been convicted. In many jurisdictions the plaintiff's discharge by a justice of the peace or committing magistrate is held to be prima facie evidence of want of prob- able cause, Barnlioldt v. Soiiillard, 36 La. Ann. 103 (1884) ; Frost v. Hol- land, 75 Maine 108 (1883) ; Straus v. Young, 36 Md. 246 (1872) ; Thomas v. Smith, 51 Mo. App. 605 (1892); Stubbs v. Mulholland, 168 Mo. 47 (1902), at least when coupled with proof of the plaintiff's good character; Johnston v. Martin, 3 Murph. 248 (N. Car. 1819) ; Rosenkranz v. Haas, 20 N. Y. S. 880 (1892) ; Bernar v. Dunlap, 94 Pa. 329 (1880), unless the evidence pro- duced by the plaintiff shows that the defendant had reasonable ground to believe the plaintiff guilty; Madison v. R. Co., 147 Pa. St. 509 (1892); Barhight v. Tammany, 158 Pa. St. 545 (1893), aliter when discharge is be- cause of the magistrate's lack of jurisdiction, McClafferty v. Philp, 151 Pa. St. 86 (1892); Williams v. Norwood, 2 Yerg. 329 (Tenn. 1829); Jones v. Finch, 84 Va. 204 (1887) ; Final v. Core, 18 W. Va. 1 (1881) : Eggett v. Al- len, 119 Wis. 625 (1903); Chapman v. Dodd, 10 Minn. 350 (1865), if solely upon the defendant's testimony, aliter if after both sides, Cole v. Curtis, 16 Minn. 182 (1870) ; accord: Barbour v. Gettings, 26 U. C. Q. B. 544 (1867) ; see also, Flickinger v. Wagner, 46 Md. 580 (1877), where a discharge by a magistrate, unable to decide on conflicting testimony and giving the accused the benefit of the doubt, held not to make a prima facie case. Contra: Hark- radcr v. Moore, 44 Cal. 144 (1872); Israel v. Brooks, 23 III. 575 (1860); Wright v. Fansler, 90 Ind. 492 (1883); Davis v. McMillan, 142 Mich. 391 (1905) ; Heldt v. Webster, 60 Tex. 207 (1883). The fact that the grand jury ignores the bill is held in Apgar v. Woolston, 43 N. J. L. 57 (1881), and Le Maistre v. Hunter, Brightly N. P. 494 (Pa. 1851), to be no evidence of want of probable cause. On the other hand an acquittal after the trial is generally held neither to make a prima facie case shifting the burden of proof nor to be of itself sufficient evidence to support a verdict for the plaintiff, Thompson v. Bea- con Valley Co., 56 Conn. 493 (1888) ; Bitting v. Ten Eyck, 82 Ind. 421 (1882) ; Garrard v. Willet, 4 J. J. Marsh. 628 (Ky. 1830), where, however, the plain- tiff had been committed for trial bv a magistrate ; Stone v. Crocker, 24 Pick. 81 (Mass. 1831) ; Britton v. Granger, 13 Ohio C. C. 281 (1897) ; Eastman v. Monnastes, 32 Ore. 291 (1898). And this is so even in jurisdictions hold- ing that a discharge by an examining magistrate makes out a prima facie case, Staub v. I'an Bcnthuysen, 36 La. Ann. 467 (1884) ; Boeger v. Langen- berg, 97 Mo. 390 (1888) ; Christian v. Hanna, 58 Mo. App. 37 (1894) ; Bell V. Pearcy, 11 Ired. 233 (N. Car. 1850) ; and see Vinal v. Core, supra, and Hale V. Boylen, 22 W. Va. 234 (1883); contra, Whitfield v. Westbrook, 40 Miss. 311 (1866), and Miller v. Hammer, 141 Pa. St. 196 (1891). with which, how- ever, compare Grnhmann v. Kirschman, 168 Pa. St. 189 (1895). In some jur- isdictions it is held to be no evidence of want of probable cause, Skidmore v. Bricker, 77 111. 164 (1875) ; Bekkeland v. Lyons, 96 Tex. 255 (1903), 6-1 L. R. A. 474 with valuable note; Stewart v. Sonneborn, 98 U. S. 187 (1878), semhle. * In some jurisdictions a conviction is conclusive though procured by fraud, false testimony or by preventing the accused producing exculpatory facts, known by the defendant to exist. Clements v. Odorless etc. Co., 67 Md. 461 (1887), Bryan, J., diss., p. 605; Parker v. Huntington, 7 Gray 36 (Mass. 1028 ■ RAV^EXGA V. MACKINTOSH. sumption of probable cause, arising from a judgment in the first instance which is reversed on appeal, can only be rebutted by alleg- ing and proving that the judgment was obtained by fraud or perjury, then the judgment is practically conclusive evidence of a probable cause, because any judgment, although it imports absolute verity, may be impeached for fraud or perjury in a proper action or proceeding. The true and logical reason why a conviction, re- versed on appeal and the defendant discharged, is relevant evidence on the issue of probable cause, is not that the judgment imports ab- solute verity ; for, after the reversal and discharge there is in fact and law no judgment. The true reason, as stated in the case of A'elir V. Dobbs, supra, is the fact that, ordinarily, if a court having jurisdiction has upon a full and fair trial proceeded to conviction, it must have had before it such evidence as would convince a pru- dent and reasonable man of the guilt of the accused. Therefore, while a subsequent reversal may show that the accused was in fact innocent, yet it does not show that there was no probable cause for believing him guilty. If such be the basis for receiving in evidence a judgment, which has been reversed, on a trial of the question of probable cause, it logically follows that it is not conclusive, but prima facie, evidence of probable cause, which is entitled to serious consideration in deter- mining the issue. It follows that, the presumption arising from such evidence being a rebuttable one, the evidence to rebut it cannot be limited to a direct impeachment of the judgment for fraud or per- jury, but that any competent evidence is admissible which tends to show that the prosecutor did not have probable cause. We accord- ingly hold that, in an action for malicious prosecution, a conviction of the plaintiff, which was reversed on appeal and the plaintiff dis- charged, is not conclusive, but strong prima facie, evidence of prob- able cause, which may be rebutted, not only by evidence tending to show that the conviction was obtained by fraud or perjury, but also by any competent evidence which satisfies the jury that the prose- cutor did not have probable cause for instituting the prosecution. Order affirmed. RAVENGA V. MACKINTOSH. Court of King's Bench, 1824, 2 Barnewall & Cresswell 693. The Lord Chief Justice directed the jury to find a verdict for the defendant, if they were of opinion that, at the time when the arrest was made. Mackintosh acted truly and sincerely upon the faith of the opinion given by his professional adviser, actually be- lieving that Ravenga was personally liable, and that he might be lawfully arrested, and that he (Mackintosh) could recover in that action ; but to find for the plaintiff, if they were of opinion that 1856), but compare Cloon v. Gerrv, 13 Gray (Mass.) 201; Griffis v. Sellars, 2 Dev. & B. 492 (N. Car. 1837) ; Smith v. Thomas. 149 N. Car. 100 (1908), scmble. RAVENGA 1\ MACKINTOSH. IO29 Mackintosh believed that he must fail in the action, and that he in- tended to use the opinion as a protection, in case the proceedings were afterwards called in question ; and that he made the arrest, not with a view of obtaining his debt, but to compel the plaintiff to sanc- tion his debentures. The jury found a verdict for the plaintiff with £250 damages. The Attorney-General now moved for a new trial. Bayley J. i have no doubt that in this case there was a want of probable cause. I accede to the proposition, that if a party lays all the facts of his case fairly before counsel,^ and acts bona fide upon the opinion given by that counsel- (however erroneous that opinion may be)^ he is not liable to an action of this description. A party, however, may take the opinions of six different persons, of ^Accord: Steed v. Knowles, 79 Ala. 446 (1885); Ross v. Innis, 35 111. 487 (1864) ; Smith v. Walter, US Pa. St. 453 (1889) ; Stewart v. Sonncbom, 98 U. S. 187 (1878); Touipson v. Mussev, 3 Maine 305 (1825); Cootyer V. Utterbach, 37 Md. 282 (1872) ; Wakely v. Johnson, 115 Mich. 285 (1897) ; Bell v. Atlantic Citv R. Co., 58 N. J. L. 227 (1895) ; Radcliffe v. Hollvfield, 216 Pa. 367 (1907). see Barhight v. Tammany, 158 Pa. St. 545 (1893). As to the efifect of failure to state facts in the bona fide but mistaken belief that they are not material, compare Hill v. Palm, 38 Mo. 13 (1866) ; Sharpe v. Johnston, 59 Mo. 557 (1875), and Duiilap v. New Zealand Fire &c. Ins. Co., 109 Cal. 365 (1895). with Baldwin v. Weed, 17 Wend. 224 (N. Y. 1837), and Harris V. Woodford, 98 Mich. 147 (1893). Many jurisdictions hold that he must disclose also facts which he could have discovered had he used reasonable diligence. Steed v. Knowles, 79 Ala. 446 (1885) ; Wvatt v. Burdette, 43 Colo. 208 (1908); Ross v. Innis, 35 111. 487 (1864) ; Gallowav v. Stewart, 49 Ind. 156 (1874) ; Dorr Cattle Co. v. Dcs Moines Nat. Bank, 127 Iowa 153 (1905) ; Stevens v. Fassett, 27 Maine 266 il847) ; Stubbs v. Midholland, 168 Mo. 47 (1902) ; Carp v. Queen Insurance Co., 203 Mo. 295 (1907), and see Moore V. R. Co., Z7 Minn. 147 (1887), and Johnson v. Miller, 69 Iowa 562 (1886). Contra, Dunlap v. New Zealand Fire &c. Ins. Co., 109 Cal. 365 (1895); Gillispie v. Stafford, 96 N. W. 1039 (Nebr. 1903); Hess v. Oregon German Baking Co., 31 Ore. 503 (1897) ; King v. Apple River Poiver Co., 131 Wis. 575 (1907). If the defendant, subsequent to the consultation, learn of ma- terial facts he cannot rely on the advice seriously received as a protection, Diinlap V. New Zealand Fire &c. Insurance Co., 109 Cal. 365 (1895): Ash V. Marlow, 20 Ohio 119 (1851), and for a full citation and valuable discus- sion of the American decisions on these points and the whole subject of the principal case see the notes to Van Meter v. Bass, 18 L. R. A. (N. S.) 49 (1909). -Accord: McLcod v. McLeod, 73 Ala. 42 (1882); Clement v. Major, 8 Colo. App. 86 (1896) ; Ross v. Innis, 35 111. 487 (1864) : Kimmel v. Henry, 64 111. 505 (1872). prosecution instituted for improper purpose; Fisher v. Forrester, 33 Pa. 501 (1859) ; Neufeld v. Rodeminski, 144 111. 83 (1893). See also, the cases collected in 1§ L. R. A. (N. S.) 62 to 65. An opinion given after the prosecution is of course no justification therefor, Blunt v. Little, 3 Mason 102 (U. S. 1822) ; Murphy v. Eidlits, 121 App. Div. 224 (N. Y. 1907), but see Hopkins v. McGillicuddy, 69 Maine 273 (1879). The advice of counsel affords no protection if the defendant in fact does not believe the plaintiff guilty, Stewart v. Sonneborn, 98 U. S. 187 (1878); Dazvson v. Schloss, 93 Cal. 194 (1892); Connelly v. White, 122 Iowa 391 (1904) ; Hyde v. Greuch, 62 Md. 577 (1884) ; Haas v. Powers, 130 Wis. 406 (1906) ; Harris v. Woodford. 98 Mich. 147 (1893) ; Sparling v. Conway 75 Mo. 510 (1882), and see 18 L. R. A. (N. S.) 63-64. \4ccord: Steed v. Knowles, 79 Ala. 446 (1885) ; Neufeld v. Rodeminski, 144 111. 83 (1893); Paddock v. Watts, 116 Ind. 146 (1888); Fleckingcr v. laffec, 149 Mich. 678 (1907); Cooper v. Flemming, 114 Tenn. 40 (1904), especially if the persons consulted are prosecuting officers of the stated 1030 RAVENGA V. MACKINTOSH. which three are one way and three another,* It is therefore a ques- tion for the jury, whether he acted bona fide on the opinion, behev- ing that he had a cause of action. The jury in this case have found, and there was abundant evidence to justify them in drawing the conclusion, that the defendant did not act bona fide, and that he did not beheve that he had any cause of action whatever. Assuming that the defendant's beHef that he had a cause of action would amount to a probable cause, still, after the jury have found that he did not believe that he had any cause of action whatever, the judge would have been bound to say, that he had not reasonable or prob- able cause of action. Rule refused."' Laughlin v. Clawson, 27 Pa. 328 (1856); Smith v. Austin, 49 Mich. 286 (1882) ; Amhs v. A. T. & S. F. R. Co., 114 Fed. 317 (1899). In Hazzard v. Flury, 120 N. Y. 223 (1890), Parker, J., held that the fact that the defendant's counsel may have mistakenly advised him "while proper on the question of malice, does not form the basis for a finding of fact that he had probable cause to believe the plaintiff guilty of larceny. Probable cause," he says, "may be founded on misinformation as to the facts but not as to the law ;" and see Lange v. ///. Cent. R. Co., 107 La. 687 (1902). The Gebrgia Civil Code of 1910, § 4958, makes the defendant responsible for acting on er- roneous legal advice and gives him an action over against his adviser, Luke V. Hill, 137 Ga. 159 (1911). On the whole subject see 18 L. R. A. (N. S.) 67-68. Nor is the defendant responsible for the bad faith of his legal ad- viser, Peterson v. Toner, 80 Mich. 350 (1890), unless the two are in collu- sion. Watt v. Corey, 76 Maine 87 (1884), or knows he that it is given in bad faith. Shea v. Cloquet Lumber Co., 92 Minn. 348 (1904), or is the adviser known to be prejudiced and partial. Smith v. King, 62 Conn. 515 (1893), and see 18 L. R. A. (N. S.) 66. *See Stevens v. Fassett,27 Maine 266 (1847). ^ The advice must be given by a practicing lawyer of good reputation for competency and integrity, Marks v. Hastings,' lOl Ala. 165 (1892); Clement V. Major, 8 Colo. App. 86 (1896) ; Walter v. Sample, Schattgen v. Holnback, 149 111. 646 (1894); Stiihbs v. Mulholland, 168 Mo. 47 (1902); Heath, J., m Hewlett v. Cruchley, 5 Taunt. 277 (1813). The mere fact that the adviser is admitted to the bar or has a state license to practice law is not enough, Roy v. Goings, 112 111. 656 (1885); Stubbs v. Mulholland, 168 Mo. 47 (1902). The public prosecuting attorney is of course a proper person upon whose advice to rely. Cooper v. Fleming, 114 Tenn. 40 (1904) ; Gilbert- son V. Fuller, 40 Minn. 413 (1889), but the advice of the defendant's regular counsel will protect him, Kansas etc. Co. v. Galloway, 71 Ark. 351 (1903). unless his previous connection with the matter or person's interest is such as to indicate that he is prejudiced, Perrenoud v. Helm, 65 Nebr. 77 (1902) : Charles City Plow &c. Co. v. Jones, 71 Iowa 234 (1887) ; White v. Carr, 71 Maine 555 (1880). But if the defendant is himself a lawyer his own advice to himself is of course no defense, Buck & Son Lumber Co. v. Atlantic Lumber Co., 121 Fed. 22>2, (1903); Terre Haute & L R. Co. v. Mason, 148 Ind. 578 (1897). The advice of a justice of the peace or magistrate, if a lavman, is no protection, Necker v. Bates, 118 Iowa 545 (1902) ; Olmstead v. Partridge, 16 Gray 381 (Mass. 1860); but see Monaghan v. Cox, 155 Mass. 487 (1892); Brobst V. Rutf, 100 Pa. St. 91 (1882) ; Beihofer v. Loeffert. 159 Pa. St. 374 (1893) ; but in Monaghan v. Cox, 155 Mass. 487 (1892). it was held that such advice is evidence of probable cause. For a valuable collection of cases on the whole subject, see 18 L. R. A. (N. S.) 69-74. The majority of jurisdictions regard the advice of counsel as proof of probable cause, Stewart v. Sonneborn, 98 U. S. 187 (1878) ; Jordan v. Ala. G. S. R. Co., 81 Ala. 220 (1886) ; Olmstead v. Partridge, 16 Gray 381 (Mass. 1860) ; Cooper v. Fleming, 114 Tenn. 40 (1904) ; in others it is regarded as only evidence of the absence of malice. Smith v. Glynn, 144 S. W. 149 (Mo. JOHNS V. MARSH, IO3I \ ■ JOHNS V. MARSH. Court of Appeals of Maryland, 1879. 52 Md. Rep. 323. Alvey, J. While the malice necessary to the right of recovery may not be deduced as a necessary legal conclusion from a mere act, irrespective of the motive with which the act was done, yet, any motive other than that of instituting the prosecution for the pur- pose of bringing the party to justice, is a malicious motive on the part of the person who acts under the influence of it.^ As was ac- curately stated by Mr. Justice Parke, afterwards Baron Parke, in the case of Mitchell v. Jenkins, 5 B. & Ad., 594, "the term 'malice,' in this form of action, is not to be considered in the sense of spite or hatred against an individual, but of mains animus, and as denot- ing that the party is 'actuated by improper and indirect motives." If, for example, a prosecution is initiated upon weak and unsubstan- tial ground for purposes of annoyance, or of frightening and coerc- ing the party prosecuted into the settlement of a demand, the sur- render of goods, or for the accomplishment of any other object, aside from the apparent object of the prosecution and the vindica- tion of public justice, the party who puts the criminal law in motion under such circumstances lays himself open to the charge of being actuated by malice. Such motives are indirect and improper, and for the gratification of which the criminal law should not be made the instrument. Add. on Torts, pp. 594, 613; 2 Greenl. Ev., sec. 453-' App. 1912), in others as rebutting the inference of malice arising out of the absence of probable cause, Brooks v. Bradford, 4 Colo. App. 410 (1894) ; McClafferty v. Phelp, supra; Lipowics v. Jervis, 209 Pa. 315 (1904) ; but see Walter v. Sample, supra, in others it is regarded as going to both probable cause and malice, Flora v. Russell, 138 Ind. 153 (1894) ; Folger v. IVashburn, 137 Mass. 60 (1884); Brinsley v. Schiils, 124 Wis. 426 (1905), and see cases collected in 18 L. R. A. (N. S.) 51-54. ^ A suit is malicious if actuated by actual ill will, which may be shown by any evidence tending to prove its existence, as threats made, Brooks v. Jones, 33 N. Car. 260 (1850), Thurston v. Wright, 77 Mich. 96 (1889) ; or a quarrel with plaintiff's family. Long v. Rodgers, 19 Ala. 321 (1851) ; see also, Van- dcrbilt V. Matins, 5 Duer 304 (N. Y. 1856). ^Accord: Metropolitan Life Ins. Co. v. Miller, 114 Ky. 754 (1903), malice may be inferred from the use of criminal process to compel the plain- tiff to settle a disputed claim, IVhiteford v. Henthorn, 10 Ind. App. 97 (1894) ; Knig V. Ward, 77 111. 603 (1875), or to give up property, Grinncll v. Stewart, 32 Barb. 544 (N. Y. I860); Peterson v. Reisdorph, 49 Nebr. 529 (1896); Callaway v. Burr, 32 ^Uch. 332 (1875) ; Kelly v. Sage, 12 Kans. 109 (1873) ; Gabel v. Weisensec, 49 Tex. 131 (1878) ; Reed v. Loosemore, 197 Pa. 261 (1900) — but such inference is merely one of fact and can not be rebutted, Wengcr v. Philips, 195 Pa. St. 214 (1900) — or to extort a confession as to the plaintiff's supposed accomplices, so as to locate stolen property, Biirk v. ilowlcy, 179 Pa. St. 539 (1897), but to prosecute for the sake of making the plaintiff' an example is not evidence of malice, Coleman v. Allen, 79 Ga. 637 (1888). Nor does the fact that the ulterior object was to force the pay- ment of a debt conclusively show malice where the defendant was also ac- tuated by a desire to bring the plaintiff to justice, Williams v. Keyes, 9 Colo. App. 220 (1897), Jackson v. Linninaton, 47 Kans. 396 (1891). 1032 ^fi>^^ >s SCHOFIELD V. FERRERS. SCHOFIELD V. FERRERS. Supreme Court of Pennsylvania, 1864. 47 Penna. 194. SxRONd, J. But the court instructed the jury that if there was not probable cause, they should find for the plaintifif. This was leaving out of view the second essential to the maintenance of such an action, namely, whether the prosecution was instituted mali- ciously, a question always for the jury, and one which must be proved affirmatively to entitle the plaintiff to a verdict. It is true, that want of probable cause is evidence of malice, but it is not malice itself. It is to be submitted to the jury for them to draw the proper inference. This appears to be almost, if not quite, the uni- versal rule. How a criminal prosecution can be without malice, when it is instituted without probable cause ; how it can have orig- inated from any other than bad motives, which the law denominates malice, is not very apparent in most cases, yet the authorities uni- formly hold that absence of probable cause is only evidence of malice. It has not the force of a legal conclusion, and therefore the existence of malice is a fact to be found by a jury. It is true, there are certain things which, if proved, the law declares to be conclusive evidence of malice, but mere want of probable cause is not one of them. If a pros_ecution be instituted for the purpose of extorting money^-©rTJthei:j>ropefty,"'the law implies malice: Prough v. Entri- icen^ii Pa. 81, anJlT'in'tlTis'case the prosecution against the plaintiff tretow'was begun or continued to obtain a title to the horse alleged to have been stolen by him, that fact was conclusive evidence of malice, which the jury were bound to receive as such. Still it was for them to find whether such was the motive for the prosecution. This seems to have been inadvertently overlooked in the charge, very probably because the contest on the trial was mainly over the question whether there was probable cause for the prosecution. For this reason the judgment must be reversed,^ ^ The earlier cases seem to regard the want of probable cause as mat- ter tending to show the defendant's knowledge that the accusation is with- out foundation, or his lack of sincere belief in the plaintiff's guilt, the ab- sence of which of course makes the prosecution malicious, see Redfield, C. J., in Barron v. Mason, 31 Vt. 189 (1858), p. 197, and so as evidence from which malice can be inferred, see Johnstone y. Sutton, 1 T. R. 510 (1785), p. 544, "from the want of probable cause, malice may be, and most commonly is, implied," "to support the verdict, there was nothing necessary to be proved, but that there was no probable cause, from whence the jury might imply malice and might imply that the defendant knew there was no probable cause," Ellenborough, C. J., in Purcell v. McNaniara, 9 East 361 (1808), "the want of probable cause may be so strong and plain as to amount to evidence of malice," Shaw, C. J., in WiUis v. Noyes. U Pick. 324 (Mass. 1832), "The groundlessness of the suit may in some instances be so obvious and palpa- ble that the existence of malice may be inferred from it," Billings v. Chapin, 2 111. App. 555 (1878), "malice might not be inferred unless the charge is wilfully false", see also, Storv, T.. in JViggin v. Coffin, 3 Storv 1 (1836), and Bicknell, C. C, in Bitting v. Ten Eyck. 82 Ind. 421 (1882). On the other hand it is said in some cases that "the want of proper motive inferrable from a wrongful act, (a prosecution in fact enforced) based on no reasonable I I SOUTH ROVALTON BANK Z'. SUFFOLK BANK. IO33 ■THE SOUTH ROYALTON BANK v. THE SUFFOLK BANK. Supreme Court of Vermont, 1854. 27 Vt. 505. Bennett, J. \( This case comes up upon a general demurrer to the plaintiff's declaration) and, of course, the only question ■ js •( whether a legal cause of action is set out in the declaration;. It may with truth be said, that an attempt to maintain an action upon the facts stated in the declaration is novel; but this does not prove con- clusively that the action cannot be sustained in this a^ of progress. The facts stated in the declaration are briefly that \J^he plaintiffs, being a banking corporation, had put in circulation a large amount of their bills, and the bills would have had a continued and extended circulation, had it not been for the acts of the defendants, to the great gain and profit of the plaintiffs ; and that the Suffolk Bank bought them up from time to time and have refused again to ex- change them for other money, and kept them out of circulation ; and have called upon and compelled the plaintiffs to redeem the bills in speciej) \ The declaration charges that the acts of the defendants were performed with zvicked and corrupt motives, and with an intent to injure, oppress and embarrass the plaintiffs in their business, where- by they have been damnified in their business, harassed, oppressed, and deprived of great gains, as they say, which they otherwise would have made, to wit, ten thousand dollars^ It is hardly neces- sary to say that the plaintiffs issued their bills as a circulating me- dium in lieu of specie currency, and that it was the right of the de- fendants, in common with others, to purchase in their bills, and thus withdraw them from circulation, until they should choose ground, constitutes of itself all the malice deemed essential in law to the maintenance of the action," Daniel, J., in Spcngler v. Davy, 15 Grat. 381 (Va.), and see accord: to the effect that the jury may, but are not legally bound to, infer malice from want of probable cause if thev find the latter to exist, Stewart V. Sonneborn, 98 U. S. 187 (1878); Vanderbilt v. Mathis 5 Duer 304 (N. Y. 1856) ; Chicago, R. I. & P. R. Co. v. Holledav, 30 Okla. 680 (1912) ; Pohlman v. Chicago, M. & St. P. R. Co., 131 Iowa "89 (1906), and the multitude of cases cited in the American Digest, Cent. Ed., Vol. ii, 1880-1882, Decennial Ed., Vol. 12, Malicious Prosecution, § 32; but see Sharpe v. Johnston, 76 Mo. 660 (1882), to the effect that malice cannot be directly inferred from want of probable cause though the former may be in- ferred from the same circumstances which go to establish the latter. The inference is enough unless explained to carry the case to the jury, Madison V. P. R. Co., 147 Pa. St. 509 (1902), though the court will nonsuit if the evi- dence produced by the plaintiff itself proves the defendant's lack of malice, Madison v. P. R. Co., 147 Pa. St. 509 (1902). Lack of probable cause mav, however, not to be inferred from malice, Johnstone v. Sutton, and cases cited, supra, Steed v. Knoivles, 79 Ala. 446 (1885), but see Prouqh v. Entriken. 11 Pa. 81 (1849); MacDonald v. Schrocdcr, 214 Pa. St. 411 (1906), hold- mg that where the defendant has instituted criminal proceedings for the purpose not of bringing a supposed criminal to justice, but to force him to pay a debt, whether justly due or not, the burden of proving probable cause is shifted to him, compare Mayer v. Walter, 64 Pa. 283 (1870). and Grainger y-K^o'x' '^ ^'"^- ^- ^- 212 (1838), and see Bonney v. King, 103 111. App. (501 (1902) . I034 SOUTH ROYALTON BANK Z'. SUFFOLK BANK. again to put them in circulation or call upon the plaintiffs to redeem their promise by the payment of their bills in specie. (The defendants are not charged with doing any act in itself considered wrong; but it is attempted to make the acts actionable by reason of the bad motive imputed to the defendants in doing them. This case, seems to us, but an ordinary one of a creditor calling upon his debtor for his pay, at a time, and at a place, and in a man- ner to which the debtor has no right to make objection. It was morally and legally the duty of the plaintiffs at all times to be ready and willing to redeem their bills, and it has operated to their injury to be called upon at any particular time to redeem a particular amount, it is "damnum absque injuria." Here was no unlazvful conspiracy by the defendants with others, either to do a lawful act in an unlawful manner, or an unlawful act to the injury of the plaintiff's ; but the declaration charges, in effect, that the acts were done from bad motives in the defendants. This, we think, is not enough. Motive alone is not enough to render the defendants liable for doing those acts, which they had a right to do. It is too well settled to need authority that malice alone will not sustain an action for a vexatious suit. There must also be want of probable cause. This principle is enough to settle this case. If the defendants could not be sued for instituting suits maliciously to collect pay upon the plaintiff's bills which they lawfully held,^ much less could they be ^Accord: Buck v. Latham, 110 I\Iinn. 523 (1910), the defendant in an action on a promissor}- note alleged by way of counter claim that the plain- tiff had bought the note and instituted suit thereon, not for the purpose of serving any interest of his own but for the sole purpose of harassing and op- pressing the defendant. These allegations were held to show no cause of action: O'Brien v. Barry, 106 IMass. 300 (1871); Jenkins v. Fowler, 24 Pa. 308 (1855), semble; Hamilton v. Windolf, 36 Md. 301 (1852); Stevenson v. Newnham, 13 C. B. 285 (1853) ; Fricl v. Plumer, 69 N. H. 498 (1898), semble. Nor is it a defense to an action of trespass that it was one of a number of civil and criminal actions instituted against the defendant brought to harass him and force him to leave the neighborhood, Jacobson v. J'an Bocning, 48 Ncbr. 80 (1896), or to an action to collect a valid debt that the creditor has not selected the least troublesome and expensive process for its collection, Anthes y. Schroeder, 74 Xebr. 172 (1905). So it is not unlawful for a mortgagee to foreclose an overdue mortgage though he deliberately does so at a time when, the debtor being temporarily embarrassed, the insistence on his legal right will ruin the debtor and this whether his purpose is to acquire the property at a price below its value, Morris v. Tuthill, 72 X. Y. 575 (1878), or to ruin the creditor without beneiit to himself, Randall v. Hazlcton, 12 Allen 412 (Mass. 1866), p. 415; Madden, C. J., in Mart ell v. Victorian Coal Miners' Assn., 29 Vict. L. R. 475 (1903), p. 510. Xor wiU the motives of the former holder of a mortgage, negotiable instrument or assignable chose in action in selling, or of the purchaser in buying, defeat a subsequent action thereon or make the sale or purchase an actionable wrong, Morris \. Tutliill, supra, Randall v. Hazleton, supra. Under the law of France and Quebec, one guilty of abuse of his right to litigate even a well-founded claim may be liable in damages, F. P. Wal- ron, Esq., 22 Harv. L. R. 501, p. 508 and notes 4 and 5. And see on this point as well as on the right of a landowner to secure his property from unlawful interference or intrusion and for a very valuable discussion of the whole subject, the essay by the late Professor James Barr Ames on "How far an Act may be a Tort because of the Wrongful IMotive NEWTOX 7*. WEAVER. IO35 sued for simply calling upon the defendants for pay, without the intervention of a suit, though done tvith malice. The result is, the judgment of the county court is affirmed. (a) Guilt of person prosecuted and acquitted. NEWTON V. WEAVER. Supreme Court of Rhode Island, 1882. 13 Rhode Island, 616. Matteson, J. This is an action of the case for malicious prose- cution. The prosecution alleged to have been malicious was an ac- tion of trover, brought against the plaintiff by the defendant, for the conversion of a quantity of hardware and other materials, sold to the plaintiff by the defendant, to be used in the erection of cer- tain dwelling-houses, which the plaintiff was engaged in building. At the trial of the present action the defendant offered to show, by examination of the plaintiff and another witness, certain facts tend- ing to prove that the plaintiff -purchased the goods with the in- tent not to pay'for Uierri,_arLd-SO-w^*-^ttiky-of the conversion of the goods charged against him in the trover suit. The court excluded the testimony and the defendant excepted. But though inadmissible to establish probable cause, or to rebut the charge of malice, (because not known to the defendant when he brought the suit in trover^), we think the testimony should have been received. The action for malicious prosecution was designed for the benefit of the innocent and not. of the guilty. It matters not whether there was probable cause for the prosecution, or how ma- licious may have been the motive of the prosecutor, if the accused is guilty he has no legal cause for complaint. ,,The grounds of this action, says Ruffin, C. J. in Bell v. Pearccy, 5 Ired. 83, 84, quoting from Buller Nisi Prius, 14, have been said to be "on the plaintiff's side, innocence ; on the ^lefendant's, malice." Again, in the same case, page 86, he says : "There is no doubt that a defendant in this action may allege that the plaintiff, though acquitted in the prose- cution, was actually guilty, and that he may prove the guilt by any evidence in his power, though discovered after the prosecution began, or after it ended. The law does not give the action to a guilty man. He brings it as an innocent one, and if it appears on the trial in any way that he is not, he must fail.'"*), See also, Johnson v. Cham- bers, 10 Ired. 287, 291 ; Bacon v. Tozvne, 4.Cush. 217, 241 ; Barber V. Gould, 27 N. Y. Supreme Court, 446, 447 ; Turner v. Dinnegar, 2j^ N. Y. Supreme Court, 465, 466. As the testimony offered tended of the Actor," 18 Harv. L. R. 411, especially pp. 414-415, and for a some- what different view "Privilege, Malice and Intent," by Mr. Justice Holmes, 8 Harv. L. R. 1. ^ A part of the opinion is omitted holding that, for this reason, the evidence was inadmissible for these purposes. 1036 NEWTON Z'. WEAVER to prove that the plaintiff was guilty of the alleged conversion of the goods, and as his guilt, if established, would have barred his right to recover, we think the court erred in rejecting it, and, therefore, sustain the first three exceptions.- (b) Abuse of process. MAYER z'. WALTER. Supretne Court of Pennsylvania, 1870. 64 Penna. St. Rep. 283. Sharswood, J. There is a distinction between a malicious use and a malicious abuse of the legal process. An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect ; in other words, a perversion of it. Thus, if a man is arrested, or his goods seized in order to extort money from him, even though it be to pay a just claim other than that ir suit, or to compel him to give up possession of a deed or other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause : Grainger v. Hill, 4 Bing. N. C. 212. It is evideTrt-4hat when such a wrong has been perpetrated, it is entirely immaterial whether the proceeding itself was baseless or otherwise. We know that the law is good, but only if a man use it lawfully.^ "" Accord: Whitehurst v. Ward, 12 Ala. 264 (1847) ; Shannon v. Sims, 146 Ala. 673 (1906); Whipple v. Gorsuch, 82 Ala. 252 (1907): Bndey v. Rose. 57 Iowa 651 (1882) : Lancaster v. McKav, 103 Kv. 616 (1898) ; Thrcefoot v. Nuckols, 68 Miss. 116 (1890) ; Morris v." Corson', 7 Cow. 281 (N. Y. 1827) ; Johnson V. Chambers, 10 Iredell 287 _(N. Car. 1849), in all of which the prosecution terminated by the grand jury refusing to indict, the justice of the peace dismissing the complaint, or in some other way, before trial on the merits by a jury or other bodv having final determination thereof. In Turner v. Dinnegar, 20 Hun 465 (N. Y. 1880) ; Bell v. Pearcev, b Iredell 83 (N. Car. 1844.) ; Parkhurst v. Masteller, 57 Iowa 474 (188i), w^here the grand jury formed a true bill, and Mack v. Sharp, 138 Mich. 448 (1904), the final termination of the prosecution does not appear, though in Mack v. Sharp, the plaintiff is said to have been "acquitted," ^and in Parkhurst v. Mas- teller, the court says that "the defendant may prove, that the defendant, not- withstanding his acquittal, was in fact guilty." The word acquittal is how- ever, appropriate to any termination of the prosecution in favor of the ac- cused and does not involve the idea of a verdict of a jury in his favor. In Bacon v. Towne, 4 Cush. 217 (Alass. 1849), Shaw, C. J., says, p. 241, that the plaintiff's actual guilt may be proved in mitigation of the damages and that the facts proving it, though not shown to have been known by the defendant when he instituted the prosecution, are admissible on the question of prob- able cause, since he may have then known them, though now unable to prove that he did, and see Jervis, C. J., and Pollock, C. B., in Heslop v. Chapman, 23 L. J. Q. B. 49 (1853), p. 52. Contra: Williams v. Banks, 1 F. & F. 557 (1859). and see Clerk and Lindsell on Torts, 6th ed., 710. "■Accord: McClenny v. Inverarity, 80 Kans. 569 (1909), "the warrant" says Benson, J., "was used to extort money and not to bring the alleged offender ' SCOTT Z'. STANSFIELD. IO37 On the other hand, legal process, civil or criminal, may be ma- liciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class to aver and prove that he has acted not only maliciously, but without rea- sonable or probable cause. It is clearly settled also, that the pro- -ceeding must be""determined finally before any action lies for the injury ; because, as it is said in Arundell v. Tregono, Yelv. 117, the pTaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient ; besides, the two determinations might be contrary and inconsistent. CHAPTER III. Defamation Excused by the Necessity of Preserving the Right to Speak Freely When Such Freedom is to the Public Interest or Necessary for Protection of the Speaker or Others. SECTION 1. 'Absolute Privilege"— "Defeasible Immunity." (a) Immunity of judges, witnesses, counsel and parties to actions. '-^ SCOTT V. STANSFIELD. Court of Exchequer, 1868. L. R. 3 Exch. 220. The declaration set forth that the plaintiff carried on the busi- ness of an accountant and scrivener and that the defendant had spoken of him in relation to his business as such the following words, "You are a harpey preying on the vitals of the poor." before the magistrate, to break the law not to enforce it"; White v. Apslcy Rubber Co., 181 Mass. 339 (1902), 194 Mass. 97 (1907), criminal law "in- voked not for the purpose of vindicating justice but to get rid of a trouble- some tenant"; Wood v. Graves, 144 Alass. 365 (1887), defendant procured an indictment against the plaintiff and caused his arrest and detention thereon until he had settled a debt; in Prough v. Enfriken, 11 Pa. 81 (1849), it is held, that where criminal process is used to collect even a just debt, as may be inferred from the fact that the creditor drops the prosecution after it is paid, 'the onus of proving probable cause" is thrown on him if an action of malicious prosecution is brought against him, Macdonald v. Schrocder 214 Pa. St. 411 (1906). In Rossiter v. Minnesota Bradner-Smith Paper Co., 37 Minn. 296 (1887), 1038 SCOTT V. STAXSFIELD. Plea that the defendant \vas a judge of a court of record, the County Court of Yorkshire, and spoke the words complained of while hearing and trying a cause within his jurisdiction, in which the new plaintiff was defendant. Replication : That the said words so spoken and published by the defendant as aforesaid, were spoken falsely and maliciously, and without any reasonable, probable or justifiable cause, and with- out any foundation whatever, and not bona fide in discharge of his duty as judge as aforesaid, and were wholly uncalled for, immate- rial, irrelevant, and impertinent, in reference to, or in respect of, the matters before him, and were wholly unwarranted on the said occa- sion, of all which premises the defendant had notice before and at the time of the committing of the said grievance, and then well knew. Demurrer and joinder.^ Kelly, C. B. I am of opinion that our judgment must be for the defendant. The question raised upon this record is whether an action is maintainable against the judge of a county court, which is a court of record, for words spoken by him in his judicial character land in the exercise of his functions as judge in the court over Which he presides, where such words would as against an ordinary mdividual constitute a cause of action, and where they are al- leged to have been spoken maliciously and without probable cause, and to have been irrelevant to the matter before him. The question arises perhaps, for the first time with reference to a county court judge, but a series of decisions uniformly to the same effect, extend- ing from the time of Lord Coke to the present time, establish the . ^general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of jus- "Tice. This doctrine has been applied not only to the superior courts, ~l5uf to the court of a coroner and to a court martial, which is not a court of record. It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law independently and freely, without the seizure under process of goods, by statute exempt therefrom, is held a malicious abuse of process, compare Friel v. Pluiner, 69 X. H. 498 (1898), where it is said to be "a trespass, for which the legal process affords no jus- tification." The boundary between the malicious use and the abuse of legal process is by no means sharply defined, and while "abuse implies irregular and improper use, not merely regular and proper use", Jeffery v. Robbins, li 111. App. 353 (1897), p. 361, it is not easj^ to distinguish between the two, compare Bonney v. King, 103 111. App. 601 (1902), 201 111. 47 (1903). with Wood V. Graves and Prough v. Entrikcn, supra. In Hazard v. Harding, 63 How. Pr. 326 (N. Y. 1882), the malicious unwarranted procuring of an- cillary process, such as an attachment or arrest on a statutory capias in debt, is treated as abuse of process; but see Pittsburgh etc. R. Co. v. Wake- field Hardware Co., 138 N. Car. 174 (1905), and Tamblyn v. Johnston, 126 Fed. 267 (1903), and cases cited therein; and see Malone v. Belcher, 103 N. E. 637 (Mass. 1914), where the defendant, who, for the purpose of preventing the sale of the plaintiff's real estate, had levied an attachment thereon in a suit to collect commissions alleged to be due, was held guilty of malicious abuse of process. ^ The declaration and plea are abridged. DAWKINS V. LORD ROKEBY. 1039 favor and without fear. This provision of the law is not for the protection or benefit of a maHcious or corrupt judge, but for the benefit of the pubhc, whose interest it is that the judges should be at liberty to exercise their functions with independence and with- out fear of consequences. How could a judge so exercise his office if he were in daily or hourly fear of an action being brought against him, and of having the question submitted to a jury whether a mat- ter on which he had commented judicially was or was not relevant to the case before him? Again, if a question arose as to the bona fides of the judge it would have, if the analogy of similar cases is to be followed, to be submitted to the jury. Thus if we were to hold that an action is maintainable against a judge for words spoken by him in his judicial capacity, under such circumstances as those ap- pearing on these pleadings, we should expose him to constant dan- ger of having questions such as that of good faith or relevancy raised against him before a jury, and of having the mode in which he might administer justice in his court submitted to their deter-, mination. It is impossible to overestimate the inconvenience off such a result. For these reasons I am most strongly of opinion that/ no such action as this can, under any circumstances, be maintain-/ able. _ / Channell, B.^ I am of the same opinion. If the facts alleged by the replication were true, no doubt there would be misconduct on the part of the defendant. It does not follow from the decision which we now pronounce, that a county court judge can so miscon- duct himself with impunity. If a county court judge be guilty of misconduct in the exercise of his office, the Lord Chancellor may, if he think it expedient, remove him from such office, but no action will, in my opinion, lie against him for anyihijag done by him in his judicial capacity. For the benefit of thev pubh c-^nd the due adminis- tration of justice, the law provides that adjud ge is to be so fa r free and unfettered in the exercise of his office as_QO t to b e liable to an action for what he does in the capacity of judge, and so^laced under restraint in the discharge of his duty. ^ Judgment for the defendant. DAWKINS V. LORD ROKEBY. House of Lords, 1875. L. R. 7 English & Irish Appeals 744. The Lord Chief Baron (Sir F. Kelly), in the name of the consulted Judges, gave the following answer to the question pro- posed : — My Lords, these of Her Majesty's Judges who have had the honour of attending your Lordships during the argument of this case, are unanimously of opinion that the question put to them by your Lordships must be answered in the affirmative. A long series of decisions has settled that no action will lie "The concurring opinions of Martin and Bramvvell, B., are omitted. 1040 DAWKINS V. LORD ROKEBY. against a witness for what he says or writes in giving evidence be- fore a Court of Justice. This does not proceed on the ground that the occasion rebuts the prima fade presumption that words dispar- aging to another are mahciously spoken or written. If this were all, evidence of express malice would remove this ground. But the principle, we apprehend, is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice.^ The authorities, as regards witnesses in the ordinary Courts of Justice, are numerous and uniform. In the present case, it appears in the bill of exceptions that the words and writing com- plained of were published by the defendant, a military man, bound to appear and give testimony before a Court of Inquiry. All that he said and wrote had reference to that inquiry ; and we can see no reason why public policy should not equally prevent an action being brought against such a witness as against one giving evidence in an ordinary Court of Justice. The Lord Chancellor (Lord Cairns) : — Now, my Lords, adopting expressions of the learned Judges with regards to what I take to be the settled law as to the protec- tion of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations oi convenience and of public policy, the same protection which is ex- tended to a witness in a judicial proceeding who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline con- nected with the army.- It is not denied that the statements which ^See Pigot. C. B., in Kenned-^ v. Hilliard, 10 Ir. C. L. Rep. 195 (1876), p. 209, "I take it that this is a rule of law not founded (as is the protection in other cases of privileged statements) on the absence of malice in the party sued, but founded upon public policy, which requires a Judge, in deal- ing with a matter before him, a party in preferring or resisting a legal pro- ceeding, and a witness in giving evidence, oral or written, in a Court of Justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel. It is of far less importance that oc- casional mischief should be done by slander under such circumstances, than that the whole course of Justice should be enfeebled and impeded." So in the early case of Cutler v. Dixon, 4 Coke 14 (1584), it was held that no action lay upon any matter contained in pleadings, affidavits or pe- titions of persons pursuing the ordinary course of Justice, for otherwise "those who have just cause of complaint would not dare to complain for fear of infinite vexation.'' The immunity of counsel for their statements while pleading a client's cause is said by Brett, M. R. in Munster v. Lamb, L. R. 11 Q. B. Div. 588 (1883). p. 604, to be necessary as otherwise "he would have his mind so embarrassed that he could not do the duty he has to per- form. * * * If the rule were otherwise the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled. aUhough.by making so large counsel are included who have been guilty ot malice and misconduct." "-Coffin v. Donnelly, L. R. 6 Q. B. Div. 307 (1881), witness before select committees (of inquiry) of House of Commons; Wright v. Lothrop, pos\ Sheppard v. Bryant, 191 Mass. 591 (1906), witnesses before legislative i.K vestigating committees; but see Blakeslee v. Carroll, 64 Conn. 223 (189^), DAWKIXS Z'. LORD ROKEBY. IO4I he made, both those which were made viva voce and those which were made in writing, were relative to that inquiry. Under those circumstances, my Lords, I submit to your Lord- ships that the conckision of the learned Judges is in all respects one which we ought to adopt, and that your Lordships will hold that statements made under these particular circumstances are state- ments which cannot become the foundation of an action at law. I therefore move your Lordships that the judgment of the Court of Exchequere Chamber be affirmed, and this appeal dismissed with costs. Lord Penzance: — My Lords, I also agree in the view that has been stated, but I wish to say one word on the supposed hardship of the law which is brought into question by this appeal. It is said that a statement of fact of a libellous nature which is palpably untrue — known to be untrue by him who made it, and dic- tated by malice — ought to be the subject of a civil remedy, though made in the course of a purely military inquiry. This mode of stating the question assumes the untruth and assumes the malice. If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man. But this is not the state of things under which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is, whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice, and may yet in the eyes of a jury be open to that im- holding the proceedings of an investigating committee of the whole of a board of aldermen not to be judicial or quasi-judicial and the privilege of a wit- ness before them to be conditional only. An administrative council, to whom had been transferred part of the administrative functions previously exer- cised by the courts, does not in the exercise of such function act as a ju- dicial tribunal, Royal Aquarium Society v. Parkinson, L. R. 1892 1 Q. B. 431. There are many dicta to the effect that the immunity only attaches to proceedings in a court having jurisdiction, Buckley v. Jl'ood, 4 Coke 14a (1590), Hoar v. Wood, 3 Mete. 193 (Mass. 1841), Johnson v. Brown, 13 \V. Va. 71 (1878), p. 133, pleadings of parties to the proceedings and cases cited 9 Col. L. R. 602, n. 4; Contra, Lake v. King. 1 Mod. 58 (1670) ; Gminr.c v. Poole, 2 Lutw. 1560 (1692); Runge v. Franklin, 72 Tex. 585 (1889). In Bower on "Actionable Defamation", p. 371, the law of England is said to be that "it is different if the proceeding, so far as the party defaming has any reason to know, is lawful and conducted with annarent regularity"; see also, McCabe v. Joynt. 1901 2 Ir. R. 115. In Perkins y. Mitchell, 31 Barb. 461 (N. Y. 1860), a distinction is made between a witness, subpoenaed to testify or required to make an affidavit, who is not required to know if the court has jurisdiction, and one, who voluntarily appears in a form of proceed- ing not known to the common law, who must see that jurisdiction is acquired before he can claim immunity. 1042 SEAMAN Z'. XETHERCLIFT. putation; or, again, the witness may be cleared by the jury of the imputation, and may yet have to encounter the expenses and dis- tress of a harassing Htigation. With such possibihties hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands. These considerations have long since led to the legal doctrine that a witness in the Courts of Law is free from any action ; and I fail to perceive any reason why the same considerations should not be applied to an inquiry such as the present, and with, the same re- sult. SEAMAN V. XETHERCLIFT. In the Court of Appeal, 1876. L. R. 2 C. P. Div. 53. Appeal from the decision of the Common Pleas Division, order- ing judgment to be entered for the defendant, i C. P. D. 540. Claim : that defendant said of a will, to the signature of which the plaintiff was a witness, 'T believe the signature of the will to be a rank forgery, and I shall believe so till the day of my death," meaning that the plaintiff had been guilty of forging the signature of the testator, or of aiding and abetting in the forgery. Defence: that defendant spoke the words in the course of giv- ing his evidence as a witness on a charge of forgery before a magis- trate. Reply : that the words were not bona fide spoken by defendant as a witness, or in answer to any question put to him as a witness, and he was a mere volunteer in speaking them for his own purposes otherwise than as a witness and maliciously and out of the course of his examination. CocKBURN, C. J. The case is, to my mind, so abundantly clear, and I believe to the minds of my learned Brothers, that I think we ought not to hesitate to at once pronounce our decision. At the trial before Lord Coleridge it appeared that in the Pro- bate suit of Davies v. May the defendant had been examined, as an adept, to express his opinion as to the genuineness of a signature to a will, and he gave it as his opinion that the signature was a forgery. The president of the Court, in addressing the jury, made some very strong observations on the rashness of the defendant in expressing so confident an opinion in the face of the direct evidence. Soon afterwards, on a prosecution for forgery before the magistrate, the defendant was called as an adept by the person charged, when he expressed an opinion favourable to the genuineness of the docu- ment. He was then asked by the counsel for the prosecution whether he had been a witness in the suit of Davies v. May. He answered "Yes." And he was then asked, "Did you repeat a report of the observations which the presiding judge made on your evi- dence?" He again said "Yes." And then the counsel stopped. I presume the circumstances of the trial were well known, and the counsel thought he had done enough. The defendant, the witness. 1 SEAMAX V. NETHERCLIFT. IO43 expressed a desire to make a statement. The magistrate told him he could not hear it. Nevertheless the defendant persisted and made the statement, the subject-matter of this action of slander. On the proof of these facts Lord Coleridge reserved leave to the defendant to move to enter judgment, if the Court should be of opinion that there v^as no evidence on behalf of the plaintiff which ought to be left to the jury. It occurred to him, however, that it would be as well to take the opinion of the jury, and they found that the replication was true, viz. that the words were spoken not as a witness in the course of the inquiry, but maliciously for his own purpose, that is, with intent to injure the plaintiff. Upon these find- ings judgment was entered for the plaintiff, leave being again re- served to enter judgment for the defendant, and the Court of Com- mon Pleas gave judgment for the defendant. Now, if the findings of the jury have been founded upon evi- dence upon which they could have been supported, I might have had some hesitation about the decision. But they were not; and we are asked to come to a conclusion contrary to what has been established law for nearly three centuries. If there is anything as to which the authority is overwhelming it is that a witness is privileged to the extent of what he says in course of his examination. Neither is that privilege affected by the relevancy or irrelevancy of what he says ; for then he would be obliged to judge of what is relevant or irrelevant, and the questions might be, and are, constantly asked which are not strictly relevant to the issue.^ But that, beyond all question, this unqualified privi- lege extends to a witness is established by a long series of cases, the last of which is Dazvkins v. Lord Rokcby, Law Rep. 7 H. L. 744, after which to contend to the contrary is hopeless. It was there ^The tendency of British decision is to hold that the immunity does not depend on the relevancy of the statements made in answer to question or vol- unteered by a witness while testifying, Munster v. Lamb, L. R. 11 Q. B. Div. 588 (1883), semble, p. 601; Kennedy v. Milliard, 10 Ir. C. L. Rep. 195 (1859), semble, p. 211, or made orally or in pleadings, affidavits or petitions by par- ties to litigation, Kennedy v. Milliard, 10 Ir. C. L. Rep. 195 (1859) ; Modson V. Pace, L. R. 1899, 1 Q. B. 455; or by counsel in the trial of his client's cause, Munster v. Lamb, L. R. 11 Q. B. Div. 588 (1883J. Some of the earlier cases seem to give protection to a witness only if he testified on the matter or point in issue, so that if his testimony is false, he was guilty of perjury under the statute 5 Eliz. c. 9 § 6, Eyres v. Sedgcwicke, Palm. 142 (1620), Cro. Jac. 601, or to counsel only if he "give in evidence" anything not material to the issue, since "he is to discern at his peril what to deliver" and is under no duty to his client to deliver "matter not pertinent to the issue or the mat- ter in question." The following American cases adopt or contain dicta approving the doc- trine of the later English cases, Hunckcl v. Voneiff, 69 Md. 179 (1888), wit- ness, (as to the immunity extended in that state to pleadings and counsel, see Note 4 to Wright v. Lothrop, post:) Sebree v. Thompson, 126 Ky. 223 (1907), semble; Chamhliss v. Blau, \27 Ala. 86 (1899), semble; Terry v. Fellows, 21 La. Ann. 375 (1869), semble, also witnesses; Runge v. Franklin, 72 Tex. 585 (1889), pleadings of party. The immunity is not confined to statements defamatory of parties to the litigation, Henderson v. Broomhead, 4 H. & N. 569 (1859), Crockett v. McLenahan, 109 Tenn. 517 (1902) ; Cooley v. Galyon, 109 Tenn. 1 (1909). 1044 SEAMAN V. XETHERCLIFT. ^ expressly decided that the evidence of a witness with reference to the inquiry is privileged, notwithstanding it may be maHcious ; and to ask us to decide to the contrary is to ask what is beyond our power. But I agree that if this case, beyond being spoken mah- ciously, the words had not been spoken in the character of a wit- ness or not while he was giving evidence in the case, the result might have been different. For I am very far from desiring to be con- sidered as laying down as law that what a witness states altogether out of the character and sphere of a witness, or what he may say dehors the matter in hand, is necessarily protected. I quite agree that what he says before he enters or after he has left the witness- box is not privileged, which was the question in the case before Lord Ellenborough, Trotman v. Dunn, 4 Camp. 211.- Or if a man when in the witness-box were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked : Were you at York on a certain day? and he were to answer: Yes, and A.B. picked my pocket there ; it certainly might well be said in such a case that the statement was altogether dehors the character of witness, and not within the privilege. If, therefore, the findings of the jury, that the defendant had ceased to be a witness when he spoke the words, were justified by the evidence, I should hesitate before I decided in his favour. But I think the defendant was entitled to judgment on the first reserva- tion. There was no evidence to go to the jury upon the plaintiff's case. What the defendant said was said in his character of witness ; for there can be no doubt that the words were spoken in conse- quence of the question put to him by counsel for the prosecution, the object and effect of the cross-examination having been to dam- age his credibility as a witness before the magistrate, and of this the witness was conscious. The counsel, having put the question, stops ; and if there had been counsel present for the prisoner who had re-examined the witness, he would have put the proper ques- tions to rehabilitate him to the degree of credit to which he was en- titled. That such questions would have been relevant I cannot bring myself for a moment to doubt, relating as they do to the credibility of the witness, which is part of the matter of which the magistrate has to take cognizance. That being so, the witness himself, who is sworn to speak the whole truth, is properly entitled, not only with a view to his own vindication, but in the interest of justice, to make such an observation in explanation of his former answer as is just and fair under the circumstances. That is what the defendant did. The sitting magistrate having allowed the disparaging question to 'Accord: Morgan v. Booth, 76 Ky. 480. A witness testifying before a grand jury has absolute immunity, Schidtz v. Strauss, 127 Wis. 325 (1906), and statements made to the district attorney, whether after a bill of indict- ment has been preferred, Schidts v. Strauss, 127 Wis. 325 (1906), or g^iving information to enable him to begin a prosecution, Vogcl v. Griiac, 110 U. S. 311 (1883), are absolutely privileged, and so are statements made to or by an attorney in the preparation of his client's case, JVatson v. Jones, 1905 A. C. 380; Youmans v. Smith, 153 X. Y. 214 (1897). SEAMAN V. NETPIERCLIFT. IO45 be put and answered, ought not to have interfered to prevent the defendant from giving an explanation. I think the statement, com- ing immediately after the damaging question had been put to hirn, must be taken to be part of his testimony touching the matter in question, as it affects his credibility as a witness in the matter as to which he was called. It was given as part of his evidence before he had become divested of his character of witness; and but for the question of the opposite counsel he never would have made the statement at all. In my opinion, the Lord Chief Justice should have nonsuited the plaintiff, which is the conclusion at which the Court of Common Pleas ultimately arrived ; for there really was no evidence that the defendant was speaking otherwise than as a witness and relevantly to the matters in issue, because relevantly to his own character and credibility as a witness in the matter. That being so, even if express malice could have been properly inferred from the circumstances, the case of Dmvkins v. Lord Rokeby, Law. Rep. 7 H. L. 744, con- clusively decides that malice has ceased to be an element in the con- sideration of such cases, unless it can be shewn that the statement was made not in the course of giving evidence, and therefore not in the character of a witness. Bramwell, J. A. I am of the same opinion. The judgment of the Common Pleas affirmed two propositions. First, that wdiat the defendant said was said as a witness, and was relevant to the in- quiry before the magistrate ; secondly, that, that being so, the Lord Chief Justice should have stopped the trial of the action by non- suiting the plaintiff. As to the first proposition, I am by no means sure that the word "relevant" is the best w^ord that could be used ; the phrases used by the Lord Chief Baron and the Lord Chancellor in Dazvkins v. Lord Rokeby, Law Rep. 7 H. L. at p. 744, would seem preferable, "hay- ing reference," or "made with reference to the inquiry."^ Now, were the judges of the Common Pleas Division right in holding that this statement of the defendant had reference to the inquiry? I think that they w'ere. There can be no doubt that the question put by the cross-examining counsel ought not to have been allowed: "Have you read what Sir James Hannen is reported to have said as to your evidence in Davics v. May?" What Sir James Hannen had said in a former case was not evidence. It was, therefore, an improper question, and the answer to it, if untrue, would not have subjected the witness to an indictment for perjury. But the ques- tion having been put, and the answer having been in the afifirmative — and the question being, as Lord Coleridge observed, "ingeniously suggestive," viz. : that the way the defendant had been dealt with on the former occasion did not redound to his credit as a witness — the defendant insisted on making in addition the statement com- plained of. He did so, in my opinion, very foolishly. It would have been better to have been satisfied with retaining his own opinion without setting it up in direct opposition to the positive testimony of eyewitnesses. But he foolishly, as I think, and coarsely ex- 1046 WRIGHT v. LOTHROP. claimed, "I believe the will to be a rank forgery, and shall believe so to the day of my death.'' Suppose after he had said "yes," he had added in a decent and becoming manner, "and I am sorry Sir James Hannen said what he did, for I took great pains to form my own opinion, and I shall always retain it, as I still think it right." Would not that have had reference to the inquiry before the magis- trate? And would it not have been reasonable and right that the witness should have added that statement in justification of him- self? Surely, yes. Mr. Clarke said he was prepared to maintain that as long as a witness spoke as a witness in the witness-box, he was protected, whether the matter had reference to the inquiry or not. I am reluctant to afifirm so extreme a proposition. Suppose while the witness was in the box, a man were to come in at the door, and the witness were to exclaim, "that man picked my pocket." I can hardly think that would be privileged. I can scarcely think a witness would be protected for anything he might say in the witness- box, wantonly and without reference to the inquiry. I do not say he would not be protected. It might be held that it was better that everything a witness said as a witness should be protected, than that witnesses should be under the impression that what they said in the witness-box might subject them to an action. I should cer- tainly pause before I affirmed so extreme a proposition, but with- out affirming that, I think the words "having reference to the in- quiry" ought to have a very wide and comprehensive application, and ought not to be limited to statements for which, if not true, a witness might be indicted for perjury, or the exclusion of which by the judge would give ground for a new trial ; but ought to extend to that which a witness might naturally and reasonably say when giv- ing evidence with reference to the inquiry as to which he had been called as a witness. Taking that view, I think the first proposition is established, that the statement of the defendant was made as witness and had reference to the inquiry. WRIGHT V. LOTHROP. Supreme Judicial Court of Massachiisetts, 1889. 149 Mass. 385. Field, J. It appeared that an order had been introduced, at the suggestion of Lothrop, in the House of Representatives of the Com- monwealth, "That the Committee on Insurance consider the ex- pediency of such legislation as will make 'tenants at will' liable for damages from fire caused by their carelessness ;" that this order had been ultimately referred to the Committee on the Judiciary ; and that after the order was referred to this committee', Lothrop appeared before the committee and called its attention to the report of the case of Lothrop v. Thayer, in 138 Mass. 466, which had then been published, and was the report of the decision by this court of the action he had brought against Thayer and Wright for the burn- ing of his property. Lothrop desired the committee to report a bill making tenants at will liable for the negligent burning of prop- WRIGHT f. LOTHROP. 104/ erty in their possession, and, while advocating this before the com- mittee, he explained the action which he had brought and the de- cision of the court, and said to different members of the committee that the tenants, meaning the plaintiffs, had wilfully burned his building, or that he thought they had, although he could not prove it. There is some evidence that he said this without having been specifically asked a question upon this subject by the committee, and that the committee room was open to the public at the time. The second of these actions is an action of tort, brought by Wright against Lothrop, for slander, in making the statement con- cerning the burning of his property which has been recited. The answer sets up, among other things, that the statement was a priv- ileged communication made to a committee of the Legislature upon a subject then under consideration by the committee, and concern- ing which the committee had a duty to perform, and that the state- ment was made without malice and under the belief that it was true, and that this was a reasonable belief. The privilege of a wit- ness appearing before a committee of the Legislature, in a matter within the jurisdiction of the committee, is undoubtedly the same as that of a witness in proceedings before a court of justice.^ The examination of witnesses is regulated by the tribunal be- fore which they testify, and if witnesses answer pertinently ques- tions asked them by counsel which are not excluded by the tribunal, or answer pertinently questions asked them by the tribunal, they ought to be absolutely protected.- It is not the duty of a witness to decide for himself whether the questions asked him under the di- rection of the tribunal are relevant." As the witness is sworn to ^ See cases cited in note 2 to Dawkins v. Rokeby, ante, p. 1040. "Statements responsive to questions put by counsel or court are gen- erally held to be absolutely privileged, Hendrix v. Daughtry, 3 Ga. App. 481 (1908); Buschbaum v. Heriot, 5 Ga. App. 521 (1909); Bakhvin v. Hutchin- son, 8 Ind. App. 454 (1893) ; Brooks v. Briggs, 32 Maine 447 (1851) ; Cooley V. Galvon, 109 Tenn. 1 (1902), with which compare Shaddcn v. McElwell, 86 Tenn.'l46 (1887). In Smith v. Howard, 28 Iowa 51 (1869), it is said that if a witness "in answer to questions, put by attorneys, spoke the words, with- out malice, believing them to be responsive, he would not be liable" ; see Hutchinson v. Lexvis, 7S Ind. 55 (1881) ; while in Acre v. Starkweather, 118 Mich. 214 (1898), reasonable belief that they were responsive is held to be enough to give immunity. In Steinccke V. Marx, 10 Mo. App. 580 (1881), the question is said to be "not as to the pertinency and relevancy of the testimony but whether they were spoken by the witness without being stopped by the court or counsel, and under the supposition that they were relevant." So where a witness is asked to tell his storv in his own way it is held in Sheppard v. Bryant, 191 Mass. 591 (1906), that he has the right to assume that the court will stop him if he states anvthing not desiredby it and that anything said before such interruption is responsive to the original question. ^Compare Cockburn, C. J., in Seaman v. Netherclift, L. R. 2 C. P. Div. 53 (1876), p. 56. Accord: Moore v. Manufacturers' Nat. Bank, 123 N. Y. 420 (1890), p. 426, scmhle. Bond, J., in Lamberson v. Long, 66 Mo. App. 253 (1906), and Crecelius v. Bierman, 59 Mo. App. 513 (1894); Buschbaum v. Heriot, 5 Ga. App. 521 (1909), witness held not to be protected if he volunteer false testi- mony, "the immateriality of which is apparent to any ordinary mind." In other cases it is said that it is enough if he in good faith believes his state- ments to be material, White v. Carroll, 42 N. Y. 161 (1870) ; Marsh v. Elliott, 1048 WRIGHT V. LOTIIROP. tell the whole truth relating to the matter concerning which his tes- timony is taken, he ought also to be absolutely protected in testify- ing to any matter which is relevant to the inquiry, or which he rea- sonably believes to be relevant to it. But a witness ought not to be permitted with impunity to volunteer defamatory statements which are irrelevant to the matter of inquiry, and which he does not believe to be relevant. This statement of the law, we think, is supported by the decisions in this Commonwealth. The English decisions, per- haps, go somewhat further than this in favor of a witness ; cer- tainly they apply the rule liberally for his protection. Marsh v. Ellsivorth, 50 N. Y. 309. If, then, the statement of Lothrop to the committee be regarded as the pertinent answer of a witness to questions put to him by mem- bers of the committee, the action cannot be maintained. Lothrop may have been treated as a witness by the committee, although he was not sworn. ^ 50 N. Y. 309 (1872), p. 313; Shadden v, McElwee, 86 Tenn. 146 (1887). See also, Hastings v. Lusk, 22 Wend. 410 (X. Y. 1839), p. 421, discussing the im- munit}' of counsel or a party conducting the litigation himself. In Cooper V. Phipps, 24 Ore. 357 (1893), it is said that some cases hold that the wit- ness is not protected if it is proved that he abused his privilege by false statements which he knew to be impertinent and immaterial. See also, Liles V. Caster, 42 Ohio St. 631 (1885), which seems to leave open the question whether the witnesses privilege is absolute or conditional, McDavitt v. Boyer, 169 111. 475 (1897) ; McNabb v. Neal, 88 111. App. 571 (1900). *A similar relevancy is required of statements in pleadings or affidavits or made by counsel in the conduct of his client's cause, Johnson v. Brow-n, 13 W. Va. 71 (1878), Kemper v. Fort, 219 Pa. 85 (1907), Garr y. Selden, 4 N. Y. 91 {\%SQ), Jones v. Brownlee, 161 Mo. 258 (1901), Crockett v. Mc- Lanahan, 109 Tenn. 517 (1902), pleadings and affidavits; Hoar v. Wood, 3 Mete. 193 (Mass. 1841), McMillan v. Birch, 1 Binney 178 (Pa. 1806), "if," said Tilghman, C. J., "any man should abuse the privilege and under pre- tence of pleading his cause, wander designedly from the point in question and maliciously heap slander on his adversary, I will not say that he is not responsible in an action at law;" Hastings v. I^usk, 22 Wend. 410 (X. Y. 1839). And see for full citation of American decisions Van Vechten Veeder. Absolute Immunity in Defamation, 9 Col. L. R. 463-600 (1909), note 12, p. 605. Compare the three Maryland cases, decided in the same term dealing respectively with the immunity of witness, party making defamatory statements in his pleadings and counsel, Hunckel v. Voneiff, 69 Md. 179 (1888); Bartlett v. Christhilf, 69 Md. 219, and Maidsby v. Reif snider, 69 Md. 143. The burden of proving that the statement of the witness is irrelevant rests on the plaintiff, Emerman v. Briider, 7 Ohio Dec. 311 (1897) ; Bond. J., in Crecelius v. Bier man. 59 Mo. App. 513 (1894), and see Kennedv v. Hilliard, 10 Ir. C. L. R. 195 (1859), pp. 210. 226, Kemper v. Fort, 219 Pa. 85 (1907), cases where the question was the immunity of parties to an action for de- famatory statements in the pleadings, holding that all doubt should be re- solved in favor of relevancy. The question of the actual relevancy of the statements is for the court, Johnson v. Brown, 13 W. Va. 71 (1878), p. 146; Jones v. Brownlee, 161 ^.lo. 258 (1901); Crockett v. McLanahan, 109 Tenn. 517 (1902), while the ques- tion of the witnesses belief in their relevancy is, where it is regarded as ma- terial, a question for the jury, Marsh v. Ellsworth, 50 X. Y. 309 (1872), Has- tings v. Lusk, 22 Wend. 410 (X. Y. 1839). In some jurisdictions statements not actually relevant, Kelley v. Gt. Western R. Co., 145 N. W. 664 (W^is. 1914), or not responsive to questions of counsel and clearly irrelevant to any ordinary mind, Bushbaum v. Hcriot, I COFFIN V. COFFIN. IO49 (b) Immunity of legislators and governmental officers. "Freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any Court or place. "^ — I William and Mary Sess. ii, c. 2, § i. COFFIN V. COFFIN. Supreme Judicial Court of Massachusetts, 1808. 4 Mass. 1. Parsons, C. J. The plaintiff has commenced an action on the case, demanding damages of the defendant for an injury to his character, committed by the defendant, in maliciously uttering and publishing defamatory words, which imported that the plaintiff had committed a felony by robbing the Nantucket Bank. To this demand the defendant pleaded not guilty, and also, by leave of the Court, a special plea in bar, justifying the speaking of the words, because, he alleged, at the time when they were spoken, he and Benjamin Russell were members of the House of Representa- tives, then in session, and that he spoke the words to Russell, in de- liberation in the House, concerning the appointment of a notary pub- lic, and that the words had relation to the subject of their delibera- tion. The plaintiff", in his replication, denies these allegations ; and avers that the words were spoken by the defendant of his own wrong, and without such cause as he had alleged, and tenders an issue to the country. The defendant does not demur to the replica- tion, but joins the issue thus tendered. Both the issues came on to trial, and it appeared from the evi- dence, that when the words were spoken, the defendant and Russell were members of the House of Representatives, then in session. The occasion, manner and circumstances, of speaking them are thus related by Russell, the witness. He, having some acquaintance with the plaintiff, and thinking highly of his integrity, was applied to by him to move a resolution for the appointment of an addi- 5 Ga. App. 521 (1909), while losing their absolute immunity are conditionally privileged, the witness's belief or lack of belief being evidence of malice, compare Sviith v. Howard, 28 Iowa 51 (1869), and see the opinions of Rom- bauer, P. J., in Lamberson v. Long and Crecelius v. Bierman, 59 Mo. App. 513 (1894). ^This section of the "bill of rights" while held to give absolute im- munity to defamatory statements about an individual made in a speech in Parliament, Dillon v. Balfour, 20 L. R. Ir. 600 (1887), and while said to be "declaratory, not enacting", Fielding v. Thomas, L. R. 1896 A. C. 600, p. 612, was originally designed to protect Parliament and its members from coercion by the crown. For the history oi the long struggle for Par- liamentary freedom of speech, see Van Vechten Veeder, Esq.. Absolute Im- munity m Defamation, 10 Col. L. Rev. 131 (1910), pp. 131-134, and Dillon v.Balf cur. 20 L. R. 600 (1887). Similar provisions occur in the constitutions of practically all countries which have constitutions, see 10 Col. L R. 131 n 1 1050 COFFIN V. COFFIN. tional notary for Nantucket, the town represented by the defend- ant. Russell made the motion, and had leave to lay the resolution on the table. The defendant, in his place, inquired where Russel' had the information of the facts on which the resolution was moved. The witness answered, from a respectable gentleman from Nan- tucket. The resolution then passed, and the speaker took up some other business. Russell then left his place, and was standing in the passage-way, within the room, conversing with several gentle- men. The defendant, leaving his place, came over to Russell, and asked him who was the respectable gentleman, from whom he had received the information he had communicated to the house. Rus- sell answered carelessly, he was perhaps one of his relations, and named Coffin, as most of the Nantucket people were of that name. The witness, then, perceiving the plaintiff sitting behind the bar, pointed to him, and informed the defendant he was the man. The defendant looked towards him, and said, "What, that convict?" Russell surprised at the question, asked the defendant what he meant ; he replied, "Don't thee know the business of Nantucket Bank?" Witness said, "Yes, but he was honorably acquitted." The defendant then said, "That did not make him less guilty thee knows." It further appears that this conversation passed a little before one o'clock, that the election of notaries was not then before the house, but was made that afternoon, or the next day, and that the plain- tiff was not a candidate for that office. And there is no evidence that the resolution laid on the table by Russell, and passed, or the subject-matter of it, was ever after called up in the house. The defendant insisted the evidence supported the justification contained in the bar, and that by law the second issue ought to be found for him. The judge gave to the jury his construction of the article, and declared to them his opinion, that the facts did not in law maintain the issue for the defendant; and the jury found a verdict for the plaintiff". The twenty-first article of the declaration of rights declares that "The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever." In considering this article, it appears to me that the privilege secured by it is not so much the privilege of the house, as an or- ganized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house, but derives it from the will of the people, expressed in the consti- tution, which is paramount to the will of either or both branches of the legislature. These privileges are thus secured, not with the intention of pro- tecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representa- tives to execute the functions of their office without fear of prose- COFFIX V. COFFIN. IO5I cations, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in a debate ; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office ; and I would define the article as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house ; and I am satisfied that there are cases in which he in entitled to this privilege, when not within the walls of the representatives' chamber. He cannot be exercising the functions of his office as member of a body, unless the body be in existence. The house must be in session, to enable him to claim this privilege; and it is in session, notwithstanding the occasional adjournments, for short intervals, for the convenience of its members. If a member, therefore, be out of the chamber, sitting in committee, executing the commission of the house, it appears to me that such member is within the reason of the article, and ought to be considered within the privilege. The body of which he is a member, is in session, and he, as a member of that body, is in fact discharging the duties of his office. He ought, therefore, to be protected from the civil or criminal prosecutions for every thing said or done by him in the exercise of his functions, as a representative, in committee, either in debating, in assenting to, or in draughting a report. Neither can I deny the member his privilege, when executing the duties of his office, in a convention of both houses, although the convention should be holden in the sen- ate chamber. To this construction of the article it is objected, that a private citizen may have his character basely defamed, without any pe- cuniary recompense or satisfaction. The truth of the objection is admitted. But he may have other compensation awarded to him by the house, who have power, as a necessary incident, to demand of any of its members a retraction, or apology, of or for any thing he has said, while discharging the duties of his office, either in the house, in committee, or in a convention of the two houses, on pain of expulsion. But if it allowed that the remedy is inadequate, then a private benefit must submit to the public good. The injury to the reputation of a private citizen is of less importance to the com- monwealth, than the free and unreserved exercise of the duties of a representative, unawed by the fear of legal prosecutions. H this very liberal construction of the twenty-first article be just; if it be warranted by its language; if it be consonant to its manifest intent and design, — the question before the court lies in a narrow compass. Was Coffin, the defendant, in speaking the defamatory woras, executing the duties of his office? Or, in other language, was he 1052 COFFIN V. COFFIN. acting as a representative? If he was, he is entitled to the privilege he claims ; if he was not, but was acting as a private citizen, as a private citizen he must answer. Upon information given by the plaintiff to Russell, a member, he had moved a resolution providing for the choice of another no- tary for Nantucket ; and on Russell's stating that his information was from a respectable person from that place, the resolution had passed ; the house had proceeded to other business ; and the sub- ject-matter of the resolution, or of the information, was not in fact before the house, although it is certain that any member might have moved to rescind the resolution. Russell, his iDrother member, was in the passage-way, conversing with several gentlemen : the de- fendant came to him, and inquired the name of Russell's informant, who, he had declared, was a respectable gentleman from Nantucket. Was this inquiry, thus made, the act of a representative, dis- charging his duty, or of a private citizen, to gratify his curiosity? It was the former, says the defendant's counsel. Whether it was or not, certainly it was innocent. But to pursue the evidence ; the defendant was answered ; whatever was his motive, he had received the information. If, upon it, he intended again to call up the resolution, he might have done it. But no motion for that pur- pose was ever made. He then utters to Russell the de- famatory words. What part of his legislative duty was he now performing? It is said that he might apprehend that the plaintiff was a candidate for the office of notary, and that his motive might be to dissuade Riissell from giving his vote. But there is no evi- dence that the defendant supposed the plaintiff to be a candidate, and it is in evidence that the plaintiff was not a candidate. It is also apparent that the defendant believed that Russell was not ig- norant of the indictment against the plaintiff, and of his acquittal. I cannot, therefore, assign to the defendant any other motive for his indiscreet language, but to correct Russell for giving to the plaintiff the appellation of a respectable gentleman, and to justify the correction by asserting that an honorable acquittal, by the ver- dict of a jury, is not evidence of innocence. It is not, therefore, possible for me to presume that the defendant, in using thus pub- licly the defamatory words, even contemplated that he was in the discharge of any official duty. This inquiry by the defendant, and his replies, might have been made, for all the purposes intended by him, in State Street, or in any other place, as well as the repre- sentatives' chamber ; and it is not easy for me to conceive that any language or conduct of a representative must be considered as offi- cial, merely because he chooses the representatives' chamber for the scene. But in actions for defamatory words against a member, he may, in cases to which his privilege does not extend, defend himself like any other citizen, by proving that the words were spoken for a justifiable purpose, not maliciously, nor with a design to defame the character of any man. And this defence will avail every man charged with slander, although it may be that the words uttered ::re CHATTERTOX V. SECRETARY OF STATE. IO53 not true. I do not, therefore, consider any citizen, who is a repre- sentative, answerable in a prosecution for defamation, where the words charged were uttered in the execution of his official duty, although they were spoken maliciously ; or where they were not uttered in the execution of his official duty, if they w^ere not spoken maliciously, with an intent to defame the character of any person. And I do not consider a representative holden to answer for de- famatory words, spoken maliciously, and not in discharging the func- tions of his office. But to consider every malicious slander, uttered by a citizen, who is a representative, as within his privilege, because it was uttered in the walls of the representatives' chamber to an- other member, but not uttered in executing his official duty, would be to extend the privilege farther than was intended by the peo- ple, or than is consistent with sound policy, and w'ould render the representatives' chamber a sanctuary for calumny — an effect which never has been, and, I confidently trust, never will be, endured by any House of Representatives of Massachusetts. I am convinced, after much consideration, that the facts pre- sented by the case do not entitle the defendant to the privilege which he claims ; and that, for this cause, the verdict ought not to be set aside. Under this impression, to give a different opinion would be a desertion of a solemn duty, and a gross prevarication with my own conscience. In this opinion the Chief Justice, the other judges, viz., Sedg- wick, Sewall, Thatcher, and Parker, severally declare their full and entire concurrence.^ CHATTERTON v. SECRETARY OF STATE FOR INDIA IN COUNCIL. Coi.rt of Appeal, 1895. L. R. 1895, 2 Q. B. 189. Lord Esher, M. R. The plaintiff in this case has brought an action of libel against the Secretary of State for India in Council. It would seem from the form of the action that it is meant to be brought against him in his official capacity, treating him as a cor- "■ Accord: Kilbourn v. Thompson, 103 U. S. 168 (1880), and this thouRh the proceedings, an investigation of the matter then pending in the courts, was beyond the powers of Congress. It is held in Greenwood v. Cobbey, 26 Xebr. 449 (1889), that the privilege of members of boards or bodies exercising local legislative functions and of executive officers making official communi- cations to them is conditional merely, Weber v. Lane, 99 AIo. App. 69 (1903), report of a committee of board of aldermen held privileged unless inspired by "actual malice"; contra, IVachsmntli v. Merchants' Nat. Bank-, 96 Mich. 426 (1893), libellous resolution ofi'ered in a city council, and Trebil- cock V. Anderson, 117 Mich. 39 (1898), libellous statements in a mavor's message to a city council explaining his veto of a resolution passed by it. The privilege of citizens taking part in the proceedings of "town meetings" is clearly conditional and not absolute, Bradley v. Heath, 12 Pick 163 (Mass 1831) ; Henry v. Moberly, 6 Ind. App. 490 (1892) ; Bradford v. Clark, 90 Maine 298 (1897). In Burch v. Bernard, 107 Minn. 210 (1909), Callahan v Inqram 122 Mo. 355 (1894), Mauk v. Brundage, 68 Ohio St. 89 (1903) and McGaw 1054 CHATTERTON Z'. SECRETARY OF STATE. poration, not again*st him personally. But it would have made no difiference if it had been brought against him as an individual. The substance of the case is that it is an action brought against him in respect of a communication in writing made by him as Secretary of State, and, therefore, a high official of the state, to an Under-Sec- retary of State in the course of the performance of his official duty. The master, the judge at chambers, and the Divisional Court have all come to the conclusion that the action is one which cannot by any possibility be maintained ; that it is not competent to a civil court to entertain a suit in respect of the action of an official of state in making such a communication to another official in the course of his official duty, or to inquire whether or not he acted ma- liciously in making it. I think that conclusion was correct. The authorities which have been cited to us appear to shew that, as a matter of clear law, a judge at the trial would be bound to refuse to allow such an inquiry to proceed, whether any objection be taken by the parties concerned or not. It follows that such an action as this cannot possibly in point of law be maintained ; and, that be- ing so, to allow it to proceed would be merely vexatious and a waste of time and money. The reason for the law on this subject plainly appears from what Lord Ellenborough and many other judges have said. It is that it would be injurious to the public interest that such an inquiry should be allowed, because it would tend to take from an officer of state his freedom of action in a matter concerning the pub- lic weal. If an officer of state were liable to an action of libel in respect of such a communication as this, actual malice could be alleged to rebut a plea of privilege, and it would be necessary that he should be called as a witness to deny that he acted maliciously. That he should be placed in such a position, and that his conduct should be so questioned before a jury, would clearly be against the public interest, and prejudicial to the independence necessary for the performance of 'his functions as an official of state. There- fore the law confers upon him an absolute privilege in such a case. For these reasons, I think the order of the Divisional Court was right, and should be affirmed.^ V. Hamilton, 184 Pa. St. 108 (1898), there is no intimation as to whether the immunity is absolute or conditional, it being held that the privilege does not extend to statements not pertinent to matters under discussion nor to an irrelevant preamble to a resolution. In Burcli v. Bernard and Mank v. Brundage, a disposition is shown to restrict the privilege within very narrow bounds. ^Accord: Grant v. Secretary of State for India, L, R. 2 C. P. D. 445 (1877) ; Spalding v. Vilas, 161 U. S. 483 (1896). In De Arnaiid v. Ainsworth. 24 App. D. C. 167 (1904), the protection is extended to a report by the head of a bureau to the Secretary of War. The privilege of inferior officers or of investigating committees is however conditional and not absolute, Ranson v. West, 125 Ky. 457 (1907) ; Howland v. Flood, 160 Mass. 509 (1894) ; Barrv v. McCollom, 81 Conn. 293 (1908) ; Hcmmens v. Nelson, 138 N. Y. 517 (1893). As to the immunity of reports by military officers to their superiors or to the War Office or Department, see Dawkins v. Paulet, L. R. 5 Q. B. 94 (1869). holding such reports absolutely privileged. Maurice v. Worden, 54 Md. 233 (1880), contra, and see 10 Col. L. R. 142-144. Petitions to parliament are ab- solutely privileged, Lake v. King, 1 Saund. 120 (1667); accord: Harris - BROW V. HATHAWAY. IO55 SECTION 2. 'Qualified Privilege" — Defeasible Immunity. (a) Communications made for the protection of the maker's property, interests, or reputation. BROW V. HATHAWAY. Supreme Judicial Court of Massachusetts, 1866. 13 Allen, 239. Wells, J. The defendant's wife having lost goods from her store, and having grounds to suspect that the plaintiff had stolen them, the defendant applied to the chief of police, and, at his sug- gestion, went with a police officer to the house where the plaintiff resided with her mother, to make inquiry into the matter. No search-warrant was taken, but a search was made by permission of the mother and the plaintiff. No stolen goods were found. The words alleged as slanderous were spoken by the defendant on that occasion, in reply to the inquiry of the mother as to "what they wanted," and in explanation of their visit. They all related to the subject-matter of the supposed theft, and the grounds which the defendant had to suspect the plaintiff. This statement furnishes the conditions which establish the legal position of "privilege," re- butting the presumption of malice which the law would otherwise imply, and making it incumbent upon the plaintiff to show malice in fact in order to recover. The broad general principle is carefully stated in the case of Toogood V. Spyring, 4 Tyrwh. 582, which is referred to in nearly Huntington, 2 Tyler 129 (Vt. 1802) ; Reid v. Delorme, 2 Brev. 76 (S. Car. 1806), but "petitions to subordinate legislative or other official bodies or to executive or administrative officers are privileged only if made in good faith", 10 Col. L. R. 139; Kent v. Bongartc, 15 R. I. 72 (1885); Thorn v. Blanchard. 5 Johns. 508 (N. Y. 1809) ; Proctor v. Webster, L. R. 16 Q. B. Div. 112 (1885) ; White v. NichoUs, 3 How. 266 (U. S. 1845) ; Woods v. Wi- man, 122 N. Y. 445 (1890) ; Grav v. Pentland, 2 Serg. & R. 23 (Pa. 1815) ; Ramsev v. Cheek, 109 N. Car. 278 (1891), but see Larkin v. Noonan, 19 Wis. 82 (1865). _ This has no operation in English and American law between the sov- ereign and his subjects, the nation or state and its citizen. Since no action can be brought against the sovereign or state without its express consent, the only protection that the subject or citizen has against abuse of sovereign power is suit against the minister in the name of the sovereign who gives or the official who executes commands in excess of the constitutional power of the sovereign. See cases cited in note 1 to Rush v. Buckley, 100 Me. 322. Nor is the office protected by a statutory power if the statute be unconstitu- tional, in fact one of the more usual means of testing the constitutionality of legislative enactments is by an action brought against the officer acting under it. This subject like perhaps that dealt with in the principal case is more properly part of administrative law. 1056 BROW V. HATHAWAY. all the later decisions upon this subject, and its doctrines have been quoted and approved by this court in Szvan v. Tappan, 5 Cush. 104, and Gassett v. Gilbert, 6 Gray, 94. A narrower statement, appli- cable to the facts of the present case, is made by Lord Ellenborough in Delany v. Jones, 4 Esp. 191, namely: "If done bona fide, as with a view of investigating a fact, in which the party making it is inter- ested, it is not libellous." To the same effect are Padmore v. Law- rence, II Ad. & El. 380, and Foider v. Homer, 3 Camp. 294. In Blackham v. Pugh, 2 C. B. 620, Chief Justice Tindal says : "A com- munication made by a person immediately concerned in interest in the subject-matter to which it relates, for the purpose of protecting his own interest, in the full belief that the communication is true and without any malicious motive, is held to be excused from responsi- bility in an action for libel. "^ The judge who tried this cause instructed the jury that if the ^In Blackham v. Piigh, 2 C. B. 611 (1846), the defendant, a creditor of the plaintiff, sent a notice to the auctioneer who had sold the latter's goods not to pay over the proceeds to him, "he having committed an act of bankruptcy." Accord: Baker v. Ca}-rkk, L. R. 1894, 1 Q. B. 838, facts similar to those in Blackham v. Pugh, 2 C. B. 611 (1846); Campbell v. Bostick, 22 S. W. 828 (Tex. Civ. App. 1893) ; Whitely v. Adatns, 15 C. B. (N. S.) 392 (1863), statements explaining or defending one's business conduct; Boh- linger v. Germania Life Ins. Co., 100 Ark. 477 (1911) ; Harrison v. Garrett, 132 N. Car. 172 (1903) ; Nichols v. Eaton, 110 Iowa, 509 (1900) ; Phillips v. Bradshaw, 167 Ala. 199 (1910). communications by a principal to his agent or an owner to his manager in regard to other agents, employes or customers ; Hebner v. Great Northern R. Co.. 78 Alinn. 289 (1899) ; Tench v. Great Western R. Co., ZZ U. Can. Q. B. 8 (1873), and Hunt v. Great Northern R. Co., L. R. 1891, 2 Q. B. 189, communication to railway employes of the reasons for dismissing a fellow employe; Bonrgard v. Barthelmes, 24 Ont. App. 431 (1897), statements by a master to a workman that the material that he was using was the property of a third person, stolen by a fellow workman; Somerville v. Hawkins, 10 C. B. 583 (1851), warning given to servants not to associate with another, who had been discharged; Toogood v. Spyring, 1 C. M. & R. 181 (1834), complaints by a tenant to his landlord or the latter's agent, against a workman sent to do repairs; Amann v. Damm, 8 C B. (N. S.) 597 (1860), by one trader to another against a clerk of the latter sent on business to the former's premises; Clapp v. Devlin, 35 N. Y. Sup. Ct. 170 (1872), a consignor of a cargo, in an interview with the ship- owner in which he claimed that part of the cargo had not been delivered and accused the captain of stealing it; Smith v. Stnith, 73 Mich. 445 (1889), semble, notice to tradesmen not to give credit to the defendant's wife, stated to have deserted him; Echard V. Morton, 26 Pa. S. C. 579 (1904). defendant, when confronted with a deed giving a right of way over his property, the existence of which he denied, made a statement implying that it was forged; Force v. Warren, 15 C. B. N. S. 806 (1864), the defendant, a butcher, had accused the plaintiff, a customer, of stealing meat, the plain- tiff threatened him with an action, the defendant^ turned to another cus- tomer, present throughout the occurrence, and said, "She stole the meat, did you not see her do it?"; Croft v. Stevens, 7 H. & N. 570 (1862), a per- son alleged to have ordered goods from a tradesman wrote denying the order, which he stated was forged by the plaintiff. A solicitor or attorney may make statements necessary for the pro- tection of his client's interests as fully as he, himself, may do, Hanna v. De Blaquiere, 11 U. Can. Q. B. 310 (1852) ; Margrave v. Le Breton, 4 Burr. 2422 (1769). r.ROW 1'. ITATTIAWAY. IO57 defendant used the words alleged, he was liable, "although he may have believed them to be true and may have had no malicious de- sign to defame the plaintiff." This ruling, as it seems, must have been based upon the ground, either that the occasion was not one which furnished the excuse of "privilege," or that the defendant had, by some abuse of the privilege, lost the benefit of its protection. If upon the former ground, we think it was wrong as matter of law, both upon the authorities and upon principle. If upon the latter, it was a question not for the court, but for the jury. This case must be distinguished from those in which the party pleading the excuse of "privilege" is guilty of making use of the occasion to utter charges of a character foreign to its legitimate purpose. As, for instance, if this defendant had, in addition to his statements in relation to the supposed theft, gone on to criminate the plaintiff generally, or to accuse her of unchastity, it would then have been the duty of the court, in an action for uttering such charges, to instruct the Jury that as to such words, not appropriate to the legitimate objects of the occasion, it furnished the defendant no excuse whatever.^ But in this case the language all related to the subject of the theft which they w^ere investigating, and it should have been left to the jury to determine, upon all the circumstances of the case, whether the defendant was guilty of actual malice Exceptions sustained. 'Accord: Chapman v. Battle, 124 Ga. 574 (1905), similar facts, and see Moore v. Butler, 48 N. H. 161 (1868) ; Smith v. Smith, 73 Mich. 445 (1889), the defendant inserted, in a notice not to give credit to his wife because of her desertion, scandalous and unnecessary imputations upon her; Finden v. Westlake, Moody & Malkin 461 (1829); Daniel v. Nezv York Nezvs Pub. Co., 21 N. Y. S. 862 (1893), affirmed without an opinion 142 N. Y. 660 (1894), and Tillinghast v. McLeod, 17 R. I. 208 (1891), semble. The defendant must have an existing interest for the protection of which the information is appropriate, so a letter written by the agent of a defeated candidate for parliament to the agent of the successful candidate, accusing him of bribery, was held not to be privileged, Dickeson v. Hiltiard, L. R. 9 Exch. 79 (1874). The recipient must be a person whose knowledge of the facts communicated will advance or protect the defendant's interests. Bailey v. Holland, 7 D. C. App. 184 (1895). letter by a stockholder of a bank, owned and managed by negroes, to the United States senator, complaining of the conduct of the plaintiff, also a negro, toward the bank and intimating that being false to his race he should be removed from a position held by him in the government service; and see Sinunonds v. Dunne, Ir. R. 5 C. L. 358 (1871), and Lynani v. Gounng, L. R. 6 Ir. 259 (1880). Nor is the de- fendant privileged to introduce into a letter, though written on a matter of business interest to him, charges against third persons, not necessary for the protection of his interests or the proper statement of his business position, Merchants Insurance Co. v. Buckner, 98 Fed. 222 (C. C. A. 6th Circ. Taft, Lurton and Day, JJ. 1899) . But if the occasion be privileged it is immaterial in an action of libel or slander, that the defendant had obtained the information wrongfully, Thurston V. Charles, 21 Times L. R. 659 (1905), defendant wrongfully con- verted to his own use a letter from a third party to the plaintiff which he showed to another, whose relation to him made the occasion privileged, the plaintiff joined counts in libel and conversion, it was held he could not re- cover in the first count, though he was allowed to recover in the second. It is equally immaterial that the communication is a breach of confidence or 1058 GASSETT V. GILBERT. GASSETT V. GILBERT. Supreme Judicial Court of Massaclmsetts, 1856. 6 Gray 94. BiGELOw, J. There can be no doubt that the publication of the notice or "caution to the public," set out in the declaration, had a direct tendency to hold the plaintiff up to public reproach and dis- grace ; and was therefore actionable, unless it falls within the class of communications or statements usually termed privileged, that is, authorized by law, notwithstanding they may injuriously affect pri- vate character. The law regards the publication of all defamatory matter, which is false in fact, as malicious, and affords to the party injured a remedy in damages therefor. This is the general rule. But there are cases which constitute an exception to it. These are, when the cause or occasion of the publication is such as to render it proper and necessary for common convenience and the general "welf are o f society that the party making it should be protected from liaHlilyr In such cases, the occasion rebuts the inference of malice, which the law would otherwise draw from an unauthorized publica- tion, and renders it necessary for the party injured to show actual malice, or, as it is sometimes called, malice in fact, as an essential element in support of his action. The precise limits within which the publication of defamatory matter is allowed, as being privileged by the occasion, are best de- fined by Baron Parke, in the leading case of Toogood v. Spyring, I Cr. M. & R. 193, and 4 Tyrwh. 595. It is there laid down, that a publication "iairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct qf^ his own affairs in matters where his interest is concerned," comes within the class of privileged or authorized communications. A party can not be held responsible for a statement or publication tending to disparage private character, if it is called for by the ordi- nary exigencies of social duty, or is necessary and proper to enable him to protect his own interest or that of another, provided it is made in good faith, and without a wilful design to defame. This general statement of the doctrine on this point seems to be conso- nant with sound principle, and is supported by numerous authorities. Bui. N. P. 8. Hargrave v. Le Breton, 4 Bur. 2425. Bromage v. Prosser, 4 B. & C. 578. Child v. Affleck, 9 B. & C. 403. Somerville V. Hazvkins, 10 C. B. 583. I Stark. Sland. 292. By the application of these well-settled principles, the question raised in the present case can be satisfactorily determined. It ap- pears that the defendants were the directors of a corporation called the Female Medical Education Society, established for the purpose of educating females in the science of medicine ; that, for the pur- pose of raising funds in aid of the objects contemplated by their act of incorporation, they had resorted to the method of obtaining professional duty, see Rohshaw v. Smith, ZS, L. T. 423 (1878); Bower on Actionable Defamation, 126 n. (c). GERARD t'. DICKEXSON. IO59 subscriptions from the public at large in various towns of this com- monwealth, and that they had originally employed the plaintiff as an agent to obtain and collect such subscriptions. It further appears that the plaintiff ceased to be the agent of the corporation in De- cember, 1850, and her authority to receive subscriptions and collect money in their behalf was then revoked. There can be no doubt that it was the duty of the defendants, as directors of the corporation, to look after its prudential and finan- cial concerns, and to take all the proper measures to see that the money raised by subscription, in aid of the institution under their charge, was collected and appropriated according to the intention of those from whom it was obtained. If they believed that the plaintiff, after her authority as such agent had ceased, was falsely representing herself as still authorized to collect subscriptions in be- half of the corporation, and was thereby wrongfully obtaining money from the public, they were justified in publishing a notice, couched in such language as was necessary and proper to_ put per- sons on their guard against her unauthorized representations, and to prevent her from receiving money under the false pretense that it was collected for the use and benefit of the corporation. Their private interest and their duty to the public alike required that such notice should be given, if they believed the facts stated in it to be true, and acted honestly and in good faith in making the publica- tion. To this extent, we think that the occasion justified the de- fendants.^ GERARD V. DICKENSON. Court of King's Bench, 1577. 2 Coke Reports, Part IV, 18. The plaintiff declared that he was seised of the manor and castle of H. in the county of Stafford in fee by purchase from George Lord Audley ; and that he was in communication to demise the said castle and manor to Ralph Egerton for twenty-two years, for £200 fine, and iioo rental per annum; and that the defendant iprccmissorum non ignara) said, "I have a lease of the castle and manor of H. for ninety years ;" and then and there showed and pub- lished a demise supposed to be made by George Lord Audley, grand- ' Accord: Holmes v. Royal Fraternal Order, 222 Mo. 556 (1909), letter from the Order to its members notifying them of the removal of the plain- tiff, as collecting officer, giving reasons and warning them not to pay their dues to him; Hatch v. Lane, 105 Mass. 394 (1870). notice to customers not to pay their bills to a discharged employe, who the defendant stated to have "taken upon himself the privilege of collecting my bills ;" Nevill v. Fine Art & Gen. Ins. Co., L. R. 1897, A. C. 68, notification to customers, etc.. of ter- mination of plaintiff's agency, but see Warner v. Clark. 45 La. Ann. 863 (1893); Sheftall v. Cent, of Ga. R. Co., 123 Ga. 589 (1905), bulletin issued by the company to its conductors warning them not to accept certain tickets stated to have been impronerlv retained hv the plaintiff, a discharged con- ductor; Holmes v. Clishy, 121 Ga.-241 (1904), semhle. statements by a manu- facturer that genuine first-hand goods could be only procured from a par- ticular retailer. I060 GERARD Z'. DICKENSON. father to the said George Lord Audley, for nuiety years, to Edward Dickenson her husband, and pubhshed the said demise as a true and good lease ; and so ai^rmed it, and offered to sell it ; ubi re vera the said lease was counterfeited by her husband, and that the de- fendant knew it to be counterfeited ; by reason of which words and publication, the said Ralph Egerton did not proceed to accept the said lease, to damage, &c. The defendant pleaded in bar, quod talis indcntnra {qualis in the declaration is alleged) came to the defend- ant's hands by trover, and traversed that she knew of the forgery, upon which the plaintiff* demurred in law. And in this case three points were resolved, i. If the defendant had affirmed and pub- lished, that the plaintiff had no right to the castle and manor of H. but that she herself had right to them, in that case, because the de- fendant herself pretends right to them, although in truth she had none, yet no action lies.^ For if an action should lie when the de- fendant herself claims an interest, how can any make claim of title to any land, or begin any suit, or seek advice and counsel, but he should be subject to an action, which would be inconvenient. '- Which resolution agrees with the opinion in Banister's Case before, 'The later cases allow an action against even a rival claimant if "made mala fide for the purpose of injuring the plaintiff and not in the bona fide defense of the defendant's own property;" Coleridge, C. J. in Halsey v. Broth- erhood, L. R. 19 Ch. Div. 386 (1881) ; Linvillc v. Rhoades, 7Z Mo. App. 217 (1898), unless made in the pleadings or testimony in legal proceedings to assert or defend a supposed right, Bailev v. Dean, 5 Barb. 297 (N. Y. 1848) ; Maginn v. Schmick, 127 Mo. App. 411 (1907). •Accord: Hargravc v. Le Breton, 4 Burr. 2422 (1769) ; Smith v. Spooner, 3 Taunt. 246 (1810), in both, notice of defendant's adverse claim was given at auction of plaintiff's property; Ontario Industrial Loan and Investment Co. v. Lindsey, 4 Ont. R. 473 (1883); Hill v. Ward, 13 Ala. 310 (1848), notice of adverse claim given to intending purchaser of slaves ; Bailey v. Dean, 5 Barb. 297 (N. Y. 1848), semblc; Butts v. Long, 106 Mo. App. 313 (1904); Harrison v. Howe, 109 INIich. 476 (1896), and Hopkins v. Drowne, 21 R. I. 20 (1898), notice by landlord to one intending to sublet from tenant, that the lease gave no right to do so; Stick v. Todd, 11 Montg. L. R. 70 (Pa. 1893), notice, at sale of tenant's goods, of a levy for rent, in fact discharged upon payment; McDaniel v. Baca, 2 Cal. 326 (1852), notice to intending pur- chaser that plaintiff had obtained the property from the defendant by fraud ; Duncan v. Griswold, 92 Ky. 546 (1892), notice that judgment held by de- fendant covered land about to be sold by plaintiff; Brady v. Carteret Realty Co., 67 X. J. Eq. 641 (1904), semble, notice of adverse claim at sheriff's sale; and see Walklcx v. Bostwick, 49 Mich. 374 (1882), and Thompson v. White, 70 Cal. 135 (1886). So one claiming to own a patent right, or that a certain article or process is covered by a patent owned by him, may notify the public of his claim and warn them against infringing upon his supposed right; Wren v. Wcild, L. R. 4 Q. B. 213 (1869) : Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119 (1874); Squires v. Wason Mfg. Co., 182 Mass. 137 (1902), especially if advised bv counsel that his claim is valid, Everett Piano Co. v. Bent, 60 111. App. 372 '(1895), but by statute 7 Edw. VII, c. 29. § 36, he must show that the acts complained of are actually infringements, or must "with due dili- gence and prosecute an action for infringement of his patent," see Skinner v. Shew. L. R. 1893, 1 Ch. 413. So one believing that he has a copyright of a poem may publish a statement that the publication of the poem by others is an infringement thereof, Lovell Co. v. Houghton, 116 N. Y. 520 (1889). The defendant's statement or notice must show that he is asserting CARDON Z'. ]MC COXXELL. IO61 2 E. 4. 5. b. &c. 15 E. 4. 32 a. b. no action upon the case lies against one who pubHshes another to be his villain, without saying that he lies in wait to imprison him, ef tales & tantas minas in ipsmn fecit, quod circa negotia sua palam inteudcre non audebat. Vide 22 E. 3. I. in Cro. Eliz. 197, Conspiracy, 38 E. 3. 33. 43. E, 3. 20. F. N. B. 116. b. And therefore it was resolved, that for the said words, "I have a lease of the manor of H. for ninety years," although it is false, yet no action lies for slandering of his title or interest in the said castle and manor. And although it appears by the defendant's bar, that she has no title or interest in the said lease, but is a stranger to it; yet forasmuch as the matter alleged in the declaration doth not maintain the action, the bar will not make it good. 2. It was resolved, that there was other matter in the declaration sufficient to maintain the action, and that was because it was alleged in the dec- laration that the defendant knew of the communication of the making of the said lease to Ralph Egerton, and also that she knew that the lease was forged and coimterfeited, and yet (against her own knowledge) she has affirmed and published, that it was a good and true lease, by which the plaintiff w^as defeated of his bargain. Vide 5 E. 4. 126. If a man forges a bond in my name, and puts it in suit against me, by which I am vexed and damnified, I shall have an action on the case, 42 Aft'. 8., B. offered eight oxen to sell to A. as his proper goods, knowing them to be the proper goods of P. A. trusting in the fidelity of B. bought them for £8 and afterwards P. retook the oxen ; in that case A. shall have an action upon the case against B. And these are all in effect all the cases in our books. FAIRCLOTH, C. J. IN CARDON v. McCONNELL. Supreme Court of North Carolina, 1897. 120 N. C. Rep., 461. It is the duty of one, believing that he has such a claim or interest, to proclaim and assert it when a sale is in contemplation by another, in order that innocent persons may not be deceived or misled to their injury. If one be inquired of, he must speak the truth as he understands it and believes it to be. If he is present at a public sale of property claimed by himself, he must speak for the protection of purchasers or he will be forever estopped. If, at last, upon investigation, the defendant fails to show any title or in- some right claimed by him, it is not enough that he is in fact a rival claim- ant, Ear/ of Northumberland v. Byrt. Cro. Jac. 163 (1607). and even one speak- ing as a claimant may not make disparaging statements as to the plaintiff's title not necessary to the assertion of his claim, Brady v. Carteret Realty Co., 67 N. J. Eq. 641 (1904). While a trader is not privileged in positively disparaging his rival's goods in order to prosper at his expense. Brown v. J'aiianian, note to Oz-er V. Schiffling, ante, Whittemore v. Weiss, ZZ Mich. 348 (but see Clerk and Lindsell on Torts, 6th ed., pp. 687-688), it seems that mere disparaging comparison of a rival's goods with those of the defendant is only actionable, if known to be false or done solely to injure the rival and without any desire for self-advancement, Herschell, L. C. in White v. Mellin, L. R. 1895, A. C. 154, pp. 160-161. I062 DWYER v. ESMONDE. terest in possession or in remainder, still, if his acts were done in good faith at the time he spoke, no action will lie. The plaintiff, claiming damages, must show malice — that there was no probable cause for the defendant's belief — that he could not honestly have maintained such belief. The pre- vention of a sale by the assertion of a claim by A, although unfounded, is not actionable unless it be knowingly bottomed on fraud. 4 Rep. 18; 4 Burr. 2422. DWYER V. ESMONDE. Court of Appeal, 1878. L. R. Ireland, 1878-79, Vol. II, 243. The Lord Chancellor : — This is an appeal from a decision of the Court of Exchequer, allowing a demurrer to a plea in an action for libel. The plea is in effect that the publication complained of w^as a privileged communication. Mr. Esmonde was candidate for the representation of the county of Waterford in Parliament. In "The Freeman's Journal" there appeared "an address" to the farmers of that county, purporting to come from the Kilkenny Farmers' Association, intended to injure Mr. Esmonde's canvass, and condemning his conduct as a landlord, particularly in relation to the present plaintiff Dwyer, who had been his tenant, and was evicted for non-payment of rent. Mr. Esmonde wrote in "The Freeman's Journal," by way of answer to this address, a letter which is the libel now complained of. The plea defends its publica- tion on the ground that the publication of the address in "The Free- man's Journal" was caused by the plaintiff and others, that journal being extensively circulated in the county of Waterford among the electors ; that the letter sued upon was written and published in answer to the charges made in the address against the defendant, in defense of himself in relation thereto, bona fide, without malice, and believing the same to be true. It is to be observed that the Court of Exchequer, by a majority of its judges, refused to admit the "Address of the Kilkenny Tenant Farmers' Association" to be read upon the argument of the de- murrer; whereas this Court, by a majority of its members, has de- cided that this address is incorporated with the plea, and that the entire of it is to be taken into consideration by the Court. We have, therefore, elements for our judgment which the Court of Ex- chequer had not. The address makes general charges against Mr. Esmonde as landlord of a property in Kilkenny ; and even goes so far as to desig- nate him as "the true type of a bad Irish landlord, the scourge of the country." But for the purpose of the present appeal, I think attention need only be directed to such allegations as relate to the present plaintiff, which I now read : — "One tenant, John Dwyer, holding sixty acres, met with an accident, and became embarrassed — old arrears hanging over him ! jNIr. Esmonde dispossessed him ; he is able and willing to undertake the farm — yet it is lying waste and idle on Mr. Esmonde's hands for the last two years ; and let that gentleman inform you whether. DWYER V. ESMOXDE, IO63 with the keen competition for the land in the locality, it is the bad land or the bad landlord that deters any man from becoming his tenant, or for a long time from becoming even a caretaker of the farm?" The charge here appears to be by no means confined to the evic- tion from the farm ; supposing that to have occurred from non-pay- ment of rent, caused by an accident, then when Dwyer was able and willing to undertake the farm, Mr. Esmonde still, rather than set it to him, keeps the land idle on his own hands. The charge against Mr. Esmonde being of this character, he defends himself by giving a sketch of the man who, it is alleged, should have been retained, or, when evicted, reinstated in the farm ; and here I refer to the document, and do not confine myself to the extracts in the plaint. He says that the reason why he ejected John Dwyer was simply for non-payment of rent ; that the Dwyer family consisted of John and two sisters, and that, on the day after the execution of the habere, they forced the lock of the door, and were found seated before the fire within the dwelling house ; the aid of the sub-sherifif had again to be called in before he could regain pos- session of his property; that for nine months he was unable, al- though he advertised, to procure a caretaker for the farm; and, some months afterwards, he discovered that the plaintifif^ had got a meadow of four and a-half acres mown, and had carried off the hay and sold it — a matter which Mr. Esmonde suggests was a crime for which Dwyer could have been made amenable ; that, besides all this, Dwyer had acted ill to his sisters, who had portions charged on the very farm — not paying them, any more than the landlord ; and, finally, Mr. Esmonde points out that it was due to a threatening notice that the land had not been let. The innuendos of the plaint suggest that this amounts to definite charges that the plaintiff* was guilty of forcible entry, of intimidating anyone from becoming care- taker, of an indictable offence in selling the hay, of fraudulently retaining from his sisters their portions, and of being instrumental in having the threatening notices feloniously sent to an intending tenant of the farm. The case of O'Donoghue v. Hussey,, Ir. R. 5 C. L. 124, decided by the Irish Court of Exchequer Chamber, established that if a per- son be assailed in a newspaper, he is excused if in self-defense he has recourse to the public press, and brings forward bona fide, with- out malice, in the belief that they are true, statements having rela- tion to the charge, which, in themselves, and apart from the occasion, would be libels without excuse. The circumstances rebut the pre- sumption of malice otherwise arising from the words. In order to take the present case out of this rule, it is argued that what is alleged by ]\Ir. Esmonde in respect of the plaintiff, particularly as to his conduct to his sisters, is not relevant to the charge made against Mr. Esmonde in the Kilkenny Farmer's Address. But is this so? Observe Air. Esmonde is, in that document, held up for condemnation, not only in respect of the eviction of Dwyer, but also for subsequently excluding him from the farm, when it is said he 1064 DWYER V. ESMOXDE. was able to undertake it. All the matters put forward in explana- tion of the course adopted had their origin in Dwyer's original posi- tion as tenant. The portions of his sisters were charged upon the farm, and payable by him out of its proceeds. The reasoning is in effect that, whether regard be had to his non-fulfilment of his obligations to his landlord or his sisters in connection with the farm while he continued tenant, or to his personal conduct after he was evicted, he is not a person whom a landlord can be justly censured for not restoring. If what was stated tended to establish that con- clusion, it was relevant — perhaps I ought to go farther, and say that whatever tended to establish it for the tribunal to which the address and the answer were both directed, namely, the electors of the county of Waterford, was also relevant. Whichever test we adopt, it appears to me that the defamatory matter which has in this case been complained of was sufficiently connected with the vindication of the defendant's character to remove any objection to its publica- tion founded upon want of relevancy. The demurrer should, in my opinion, have been overruled, of course with costs, in the court be- low ; and, in this case, we think the plaintiff must also pay the costs in the Court of Appeal. AIoRRis, C. J. : — The chief reliance of the plaintiff during the argument has been on the fourth charge ; that is, that the plaintiff' had fraudulently retained from his sisters sums to which they were entitled under their father's will, charged on the farm. This is not a charge of independent and unconnected improper conduct by the plaintiff, but of improper conduct in relation to his tenancy of the farm the subject of discussion, and in relation to which farm the plaintiff had accused the defendant of gross misconduct and harsh- ness, as landlord, to him the plaintiff, as his tenant. Christian, L. J. : — Well, Mr. Esmonde, thus arraigned, before the electors of the county of Waterford in particular, as one utterly unfit to be chosen as their representative, and before the public in general, including his own tenantry, as a cruel and tyrannical land- lord, had two courses open to him : — he might either have thought of what he owed to himself as a man and a proprietor, and to the interests of public order, by bringing his libellers before the tri- bunals of the land ; or, he might only have regarded his chances as a candidate, and pleaded at the bar of the rural forum before which his assailants had brought him. Well, he chose the latter course. Instead of an action or an indictment, he stooped to the level of his assailants, and put his vindication in the shape of a letter to the editor of the same newspaper. That was the form it took, but in substance the persons addressed were the tenant-farmers of the county of Waterford. And, however others may blame his choice of a course, assuredly it does not lie in the mouth of the plaintiff' or of his co-libellers to do so. Under these circumstances, it is as plain a proposition as was ever enunciated that the occasion gave to Air. Esmonde a privilege of laying before the electors of the county he was canvassing every circumstance of Dwyer's conduct in relation to the farm — (I might put it further, but it is needless t MCDOUGALL V. CLARIDGE. IO65 to do so) — which would be calculated to satisfy ordinarily reason- able men that he was one whom a just and even an indulgent land- lord might reasonably object to retaining, still more, to reinstating on his land. That those circumstances would be in the highest de- gree defamatory, if Dwyer himself had not been the aggressor, might make them all the more proper to be covered by the privilege, because all the more demonstrative of Dwyer's objectionableness. The defendant might, in exercising this privilege, fall into excesses of phrase or intemperance in expression which would indicate an animus going beyond the bounds of self-defense. But the effect of that would be, not to take the subject out of the privilege, but to constitute evidence from which the jury might or might not infer malice in fact ; the malice in law, which is implied prima facie in the mere publishing of defamatory matter being repelled by the privi- lege of the occasion.^ (b) Communications for the protection of the common interests of the maker and recipient. McDOUGALL v. CLARIDGE. Court of King's Bench, 1808. 1 Campbell, 267. This was an action for a libel on the plaintiff in his profession as a solicitor. — Plea, the general issue. The libel set out in the declaration was contained in a letter written by the defendant to Messrs. Wright & Co., bankers at Not- tingham, and charged the plaintiff with improper conduct in the management of their concerns. It appeared, however, that the ^Accord: Hermmings v. Gasson, E. B. & E. 346 (1858) : Hibhs v. Wilkin- son, 1 F. & F. 608 (185'9) ; Koenig v. Ritchie, 3 F. &. F. 413 (1862) ; Reg. v. Veley, 4 F. & F. 1117 (1867) : Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495 (1872), p. 508; Miellv v. Soule, 49 La. Ann. 800 (1897j ; Shep- herd V. Baer, 96 Md. 152 (1902) ; Mvers v. Kaichen, 75 Mich. 272 (1889) ; Fish V. St. Louis, etc., Publishing Co., 102 :^Io. App. 6 (1903), scmblc: Chaffin V. Lynch, 83 Va. 106 (1887), 84 Va. 884_(1888)_, and an agent of a corporation may answer an attack upon it, Koenig v. Ritchie, supra. But one insult does not justify or be set off against another, Bourland V. Eidson, 8 Grat. 27 (Va. 1851), and the fact that the plaintiff had slandered or libeled the defendant does not justify him in publishing orally. Senior V. Medland, 4 Jur. N. S. 1039 (1858), 'Dc Pczv v. Robinson. 95 Ind. 109 (1884), or in the public press, defamatory statement in regard to the plaintiff not responsive to or explanatory of the latter's attack. Fish v. St. Louis, etc.. Publishing Co., 102 Mo, App. 6 (1903), Xavier v. Oliver, 80 App. Div. 292 (N. Y. 1903), nor, while he can accuse him of untruthfulness or_ "propensity to make injurious statements devoid of foundation" and give instances of indulgence therein, O'Donoghiie v. Htissey, Ir. R. 5 C. L. 124 (1871), may he accuse him of unconnected crimes to show him to be degraded and so imworthv of credit, Brewer v. Chase, 121 Mich. 526 (1899). In Murphy y. Halpin, Ir. R. 8 C. L. 127 (1874), it was held that the de- fendant was not privileged to publish in the public papers an attack upon the plaintiff, in answer to statements made by the latter at a meeting of a board I066 MCDOUGALL V. CLARIDGE, letter was intended as a confidential communication to these gentle- men, and that the defendant was himself interested in the affairs which he supposed to be mismanaged by the plaintiff. — After the case had been opened by the plaintiff's counsel — Lord Ellenborough said, if the letter had been written by the defendant confidentially, and under the impression that its state- ments were well founded, he was clearly of opinion that the action could not be maintained. It was impossible to say that the defendant had maliciously published a libel to aggrieve the plaintiff, if he was acting bona fide, with a view to the interests of himself and the per- ^ons^vhom he addressed ; and if a communication of this sort, which was not meant to go beyond those immediately interested in it, were ^he s ubject of an action for damages, it would be impossible for ^the affa irs of mankind to be conducted.^ His Lordship referred to of guardians of which he was a member, though reported without his pro- curement or consent in a newspaper. As to the right in private communications to cast imputations upon others or to comment publicly upon their conduct in repelling a charge made against oneself or in explaining one's conduct so as to prevent injurious interpre- tations being put upon it, see Coward v. Wellington, 7 C. & P. 531 (1836). JJliifelev V. Adams, 15 C. B. (N. S.) 392 (1863), and O'Connor v. Sill, 60 Mich. 175 (1886). ^ So the stockholders of a company may inform one another or the offi- cers of the company of anything which they honestly believe to have been done by a fellow stockholder, official, or employe of the company prejudicial to their joint interest, either privately, Chambers v. Leiser, 43 Wash. 285 (1906) ; Quarts Hill Co. v. Beall, L. R., 20 Ch. Div. 501 (1882); Hancy v. Trost, 34 La. Ann. 1146 (1882) ; Scullin v. Harper, 78 Fed. 460 (C. C. A. 1897). or in a meeting of the stockholders, Parsons v. Surgey, 4 F. & F. 247 (1864) ; Br ought on v. McGrew, 39 Fed. 672 (1889). So a member of an association, social, beneficial, fraternal or professional may make complaint to the society or its officers of supposed conduct of a fellow member in violation of the bv-laws or prejudicial to it or contrary to its objects and ideals, McKnight v. Hasbrouck, 17 R. I. 70 (1890); Graham v. State, 6 Ga. App. 436 (1909): Lovejoy v. Whitcomb, 174 Mass. 586 (1899), seinble, if, and only if, such complaint is made in order to bring about an investigation leading to the expulsion or discipline of the offending member. So a corporation may inform its stockholders by letter or circular of the supposed misconduct of an officer or emplovee, P. IV. & B. R. Co. v. Qnig- Icy, 21 How. 202 (U. S. 1858) : Lawless v. Anglo-Egyptian Cotton & Oil Co.. L. R. 4 Q. B. 262 (1869), or may explain its corporate acts, though the expla- nation is defamatory to third persons, Montgomery v. Kno.v, 23 Fla. 595 (1887). The same privilege attaches to the reports of a college board of trustees to its contributors of its reasons for removing its president, Gattis V. Kilgo, 140 N. Car. 106 (1905), or of a fraternal association to its members of the expulsion of a member, Kirkpatrick v. Eagle Lodge, 26 Kans. 384 (1881). In Redgate v. Roush, 61 Kans. 480 (1900), it is held that the officers of a church may communicate to all the other members of the same denomina- tion, through the medium of their church papers, notice of the disposition of their pastor and the reasons therefor, Shurtlcff v. Stevens, 51 Vt. 501 (1879) ; Konkle v. Haven, 140 Alich. 472 (1905) ; Clark v. Molyneux, L. R. 3 Q. B. D. 237 (1877) ; Whitelev v. Adams, 15 C. B. (N. S.) 392 (1863) ; James v. Bos- ton, 2 C. & K. 4 (1845); and compare Shurtleff v. Parker, 130 Mass. 293 (1881), where it was held that a member of and a preacher in one congrega- tional association was not privileged to inform a member of another such association of the supposed character of another member of the latter, who was in fact a dismissed preacher, HARRISOX V. BUSH. loGj a case of Cleaver v. Sarraude, tried on the northern circuit while he was at the bar ; where, in an action hke the present, it appeared that the letter had been written confidentially to the Bishop of Durham, who employed the plaintiff as steward to his estates, to inform him of certain supposed mal-practices on the part of the plaintiff; upon which the judge who presided declared himself of opinion, that the action was not maintainable, as the defendant had been acting jona Me; and the nonsuit which he directed had been acquiesced 'n, from a conviction entertained by the plaintiff's counsel of its being founded in law. HARRISON V. BUSH. Queen's Bench, 1855. 5 Ellis & Blackburn, 344. Lord Campbell, C. J., in this term (May 24th) delivered the judgment of the court. ^ This was an action for a libel, tried before my Brother Crowder at the last Salisbury assizes. The defendant pleaded not guilty, and a justification. It appeared that Dr. Harrison, the plaintiff, before and at the time when the cause of action accrued, was a justice of peace for the county of Somerset, and was in the habit of acting at petty sessions held in the borough of Frome. In the month of October last, there was a contested election, for a member to represent this borough in Parliament. During the election, there was much excitement ; many windows were broken by the mob ; and there were dangerous riots in the streets. The defendant was an elector and an inhabitant of the borough ; and, after the election was over, he and several hun- dred other inhabita'nts of the borough prepared, signed and trans- mitted to Viscount Palmerston a memorial complaining of the con- duct of the plaintiff as a magistrate during the election, imputing to him that he had made speeches directly inciting to a breach of the peace ; that, after reading the Riot Act, he had sent a man into the Ixi the following cases statements made for the protection of a common interest were held privileged, Knight v. Gibhs. 1 A. & E. 43 (1834), landlord made statements to tenant as to inmates of the house occupied by the latter ; Wilson V. Robinson, 7 Q. B. 68 (1845), statements by one who had sold his interest in a vessel to the other joint owner, as to the plaintiff's conduct while managing their joint interests; Hanion v. Falle, L. R. 4 A. C. 247 (1879), an insurance company wrote to an owner of a vessel refusing to in- sure it if the plaintiff was made the captain of the vessel; Wagner v. Scott, *> 164 Mo. 289 (1901), the defendant and the person to whom the statement was made jointly employed the plaintiff; Trimble v. Morrish, 152 IMich. 624 (1908), doctor made defamatory statements to a druggist, who by contract had the right to fill the doctor's prescriptions, in regard to the druggist's clerk; Allen v. Cape Fear, etc., R. Co., 100 N. Car. 397 (1888) ; Jl'arner v. Missouri Pacific R. Co., 112 Fed. 114 (1901), statements in regard to con- signor of freight, made by one connecting railroad to another ; and see Wie- vian v. Mabee, 45 Mich. 484 (1881). ^ Only so much of the opinion is given as relates to the question as to whether the memorial was privileged if sent to a person who had the power to remove the plaintiff from his magistracy. I068 HARRISON V. BUSH. Streets armed with a bludgeon, and ordered him to strike any per- son he might meet, indiscriminately ; and that he had himself violent- ly struck and kicked several men and women. The memorial alleged that the plaintiff ought not to be allowed to remain in her Majesty's commission of the peace, and concluded thus: "Yo'T memorialists therefore earnestly pray that your Lordships will cause such an inquiry to be made into the conduct of the said Dr. Harrison as your Lordship may think fit ; and that, on the allegations contained in the memorial being duly substantiated and verified, your Lord- ship will feel it to be your duty to recommend to her Majesty that the said Dr. Harrison be removed from the commission of the peace." The learned judge said that, on the authority of Blagg v. Sturt, lo O. B. 899, he should rule that the memorial to the Secretary of State was not a privileged communication, but would reserve leave to the defendant to move to enter a verdict for him, if the jury found bona fides. A rule has been obtained to enter a verdict for the defendant ; and this, we think, ought to be made absolute. During the argument, a legal canon was propounded for our guidance by the plaintiff's counsel ; and this we are willing to adopt, as we think that it is supported by the principles and authorities upon which the doctrine of privileged communications rest. "A communication made bona Ude upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a correspond- ing interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable." In the present case, little need be said to show that the communicator had both an interest and a duty in the subject-matter of the communi- cation. Assuming that Dr. Harrison had misconducted himself as a magistrate in the manner alleged, all the electors and inhabitants of Frome had suffered a grievance by a magistrate having fomented the riot instead of quelling it, and having endangered instead of protecting life and property within the borough. They have an interest that they may not longer remain subject to the jurisdiction of a magistrate who so violates the law. Again, if Dr. Harrison had so misconducted himself as a magistrate, he had committed an offence ; and it was the duty of those who witnessed it to try by all reasonable means in their power that it should be inquired into and punished. "Duty," in the proposed canon, cannot be confined to legal duties which may be enforced by indictment action, or man- damus, but must include moral and social duties of imperfect obliga- tion. One mode of proceeding for this offence would have been by applying to us for a criminal information, and seeking to have the offender punished by fine and imprisonment. But another, which, though milder, may be more effectual, is to try by lawful and con- stitutional means to have the offender removed from his ofiice, with- out calling down upon him the sentence of a criminal court. In this land of law and liberty, all who are aggrieved may seek redress; HARRISON V. BUSH. I069 and the alleged misconduct of any who are clothed with public authority may be brought to the notice of those who have the power and the duty to inquire into it, and to take steps which may prevent the repetition of it.^ But it was hardly contended that this memorial would not have a privileged communication if it had been addressed to a public functionary possessing the direct power of removing a magistrate from the commission of the peace. We think that we are not called upon at present to decide how far an honest mistake in seeking redress subjects a person to civil or criminal responsibility ; and we give no opinion on the question whether action or indictment could be maintained against individuals living under the jurisdiction of a county court judge in the county palatine of Lancaster, who should hona Me present a criminatory memorial against him to the Lord High Chancellor, praying for his removal, instead of presenting it to the Chancellor of the Duchy of Lancaster, in whom, and in whom alone, the power of removing him is vested.^ We are of opinion that the defendant fell into no mistake what- ever in the course which he adopted, and that, although he might have addressed the memorial to the Lord Chancellor, in which case it certainly would have been privileged, it is equally privileged being addressed to the Secretary of State. Rule absolute.* - So complaints of the conduct of an official, made to his superiors, for the purpose of obtaining redress or of securing better beliavior in the fu- ture, are privileged, Woodward v. Lander, 6 C. & P. 548 (1834) ; Corbett v. Jackson, 1 U. C. Q. B. 128 (1843) ; Mclnfire v. McBean, 13 U. C. Q. B. 534 (1855), and so is a petition to a governor to veto a bill. Wood v. Wiman, 122 N. Y. 445 (1890), a taxpayer's protest against the allowance of fees charged by a State's Attorney, Young v. Richardson, 4 111. App. 364 (1879), or a petition remonstrating against the granting of a liquor license, Vander- zee V. McGregor, 12 Wend. 545 (N. Y. 1834) ; Colonev v. Farrow, 5 App. Div. (N. Y.) 607 "(1896) ; Adctzler v. Romine, 9 Pa. Co. Ct. R. 171 (1890) ; Werner V. Ascher, 86 Wis. 349 (1893), semble. So petitions to the king or parliament, or a secretary of state, for the redress of a grievance are held privileged in Fairman v. Fres, 5 B. & Aid. 642 (1822) ; Rogers v. Scalding, 1 U. C Q. B. 258 (1843). Reid v. Delorme, 2 Brev. 76 (S. Car. 1806), petition to legislature complaining of the failure of the Attorney-General to institute certain prosecution. * Defamatory statements as to the conduct of public officers are not privi- leged if made to the public, Werner v. Ascher, supra, or to an -official known to have no power to investigate the matter and remove or control such offi- cers, Logan v. Hodges, 146 N. Car. 38 (1907), and see Callahan v. Ingram, 122 Mo. 355 (1894). Nor are statements of the purely private conduct of a public officer, hav- ing no connection with his public duties, Wood v. Boyle, \77 Pa. St. 620 (1896). . ,. „ As to the right of the community to know how their public officers con- duct themselves, and so a newspaper's privilege to publish in good faith infor- mation thereof honestly and with good cause believed to be true, see O'Rourke v. Lewiston Sun, 89 Maine 310 (1896), but mere gossip or rumors affords no justification, especially if the defendant refuse or neglect an op- portunitv offered by the plaintiff to investigate their truth. State v. Ford. 82 Minn. 452 (1901). ^Accord: Communications or petitions asking for the removal of a pub- lic officer addressed to a person or body having power of removal ; White v. I070 COLEMAN V. MAC LENXAN. COLEMAN V. :MacLENNAN. Supreme Court of Kansas, 1908. 78 Kansas Reports, 711. BuRCH, J. The moral and social duty of members of a great fraternity, or of a great church organization, to inform their brothers of the scandalous conduct of a fellow member or one of their leaders, is no higher or stronger than that of electors to keep the public administration pure by warnings respecting the character and conduct of a candidate for office; and if false words are not actionable in one case, unless published with actual malice, they are privileged to the same extent in the other. Such is the clear declara- tion of the court in the case of The State v. Balch, 31 Kans. 465, 2 Pac. 609. True, that was a criminal case, but the rule of privi- lege is the same in both civil and criminal actions. It is the occa- sion which gives rise to privilege, and this is unafifected by the char- acter of subsequent proceedings in which it may be pleaded. In Balch's case, a printed article making grave charges against the character of a candidate for county attorney, was circulated among the voters of the county previous to the election. In the^ opinion holding the occasion to be privileged the court said : "If the supposed libelous article was circulated only among the voters of Chase county, and only for the purpose of giving what the defendants believed to be truthful information, and only for the purpose of enabling such voters to cast their ballots more intel- ligently, and the whole thing was done in good faith, we think the NichoUs, 3 How. 266 (U. S. 1845) ; Pearce v. Brower, 72 Ga. 243 (1884) : Greenwood v. Cohbey, 26 Nebr. 449 (1889) : State v. Burnham, 9 N. H. 34 (1837) ; Frank v. Dessena, 5 N. J. L. Journ. 185 (1882) ; Thorn v. Blanchard, 5 Johns. 508 (N. Y. 1809): Van Wyck v. Aspinwall, 17 N. Y. 190 (1858); report of a committee of the College of Pharmacy to the Secretary of the United States Treasury, complaining of the conduct of an inspector of drugs; Bradsher v. Cheek, 109 N. Car. 278 (1891) ; Gray v. Pcntland, 2 Serg. 6 R. 23 (Pa. 1815) ; Kentx. Bongartz, 15 R. I. 72 (1885) ; Hart v. von Gum- pach, L. R. 4 P. C. 439 (1872), complaint by a Chinese official to Chmese board of conduct of a professor in its employ; or to a committee or officer investigating his conduct, Blakeslee v. Carroll, 64 Conn. 223 (1894) : Beatson V. Skene, 5 H. & N. 838 (1860) : Communications, petitions and complamts agamst public school teachers made to school boards, etc., Bodivell v. Os- good, 3 Pick. 379 (Mass. 1825) ; Decker v. Gaylord, 35 Hun 584 (N. Y. 1885) : Maione v. Carrico, 16 Ky. L. 155 (1894) : Communications as to character of an applicant for office made to persons having power of appointment, Coogler V. Rhodes, 38 Fla. 240 (1902) ; Harris v. Huntington, 2 Tvler 129 (Vt. 1802), or to an officer investigating the character of the applicant, Posnett v. Mar- ble, 62 Vt. 481 (1889), or to a senator, who as such votes upon the confirma- tion of the applicant's nomination, Laiv v. Scott, 5 Har. & J. 438 (Md. 1822). Such petitions and communications are qualifiedly, not absolutely, privi- leged, Proctor v. Webster, L. R. 16 Q. B. Div. 112 (1885) ; Dickson v. Wil- ton 1 F. & F. 419 (1859), and cases cited above, but see Larktn v. Noonan, 19 Wis. 82 (1865). In Howard v. Thompson, 21 Wend. 319 (N. X. 1839), it is held that the action for such a complaint while in form for libel is in sub- stance for malicious prosecution and plaintiff must show both lack of prob- able cause and malice, accord. Cook v. Hill. 3 Sandf. 341 (N. Y. 1849), and compare Woods v. Wiman, 122 N. Y. 445 (1890). COLEMAX Z'. MAC LENXAN. IO7I article was privileged and the defendants should have been acquitted, although the principal matters contained in the article were untrue in fact and derogatory to the character of the prosecuting witness. * * * Generally, we think, a person may, in good faith, publish what- ever he may honestly believe to be true, and essential to the protec- tion of his own interests or the interests of the person or persons to whom he makes the publication, without committing any public offense, although what he publishes may, in fact, not be true and may be injurious to the character of others. And we further think that every voter is interested in electing to office none but persons of good moral character, and such only as are reasonably qualified to perform the duties of the office. This applies with great force to the election of county attorneys." The plaintiff asks that the decisions of this court quoted aoove be overruled, and that they be supplanted by one which shall express the narrow conception of the law of privilege held by the majority of the courts. The fact that so many courts of this country, all ot high charac- ter, of great learning and ability, and all equally interested in cor- rectly solving the problems of free government, differ from us, makes us pause ; but a reversal of policy and the overturning of what has been so long accepted as settled law would be tantamount, under the circumstances, to legislation. Such a step ought not to be urged upon the court except for conclusive reasons. What are the reasons supporting the majority rule? The decisions most freely quoted since it was rendered, in 1893, and chiefly relied upon by the plaintiff here, is that of the United States circuit court of appeals for the sixth circuit in the case of Post Publishing Company v. Hal- lam, 16 U. S. App. 613, 8 C. C. A. 201, 59 Fed. 530. Counsel in the case had argued from the duty of newspapers to keep the public in- formed concerning those who are seeking their suffrages and con- fidence, and had asked if it were possible that the privilege allowed in discussing the character of public servants should be less than that which protects defamatory statements made concerning a private servant. The opinion states this argument, and then proceeds as follows : "The existence and extent of privilege in communications is determined by balancing the needs and good of society with the right of an individual to enjoy a good reputation when he has done nothing which ought to injure his reputation. The privilege should always cease where the sacrifice of the individual right becomes so great that the public good to be derived from it is outweighed. Where conditional privilege is extended to cover statements of dis- graceful facts to a master concerning a servant, or one applying for service, the privilege covers a bona fide statement on reasonable grounds to the master only, and the injury done to the servant's reputation is with the master only. This is the extent of the sacri- fice which the rule compels the servant to suffer in what was thought to be, when the rule became law, a most important interest of society. But if the privilege is to extend to cases like that at b; t. 10/2 COLEMAX V. MAC CLENNAN. then a man who offers himself as a candidate must submit uncom- plainingly to the loss of his reputation, not with one person only, or a small class of persons, but with every member of the public whenever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reason- able grounds. We think that not only is a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good. "We are aware that public officers and candidates for public office are often corrupt when it is impossible to make legal proof thereof, and of course it would be well if the public could be in- formed in such a case of what lies hidden by concealment and per- jury from judicial investigation. But the danger that worthy and honorable men may be driven from politics and public service by allowing too great latitude in attacks upon their character, out- weighs any benefit that might occasionally accrue to the public from charges of corruption that are true in fact but are incapable of legal proof. The freedom of the press is not in danger from the enforce- ment of the rule we uphold. No one reading the newspaper of the present day can be impressed with the idea that statements of fact concerning public men and charges against them are unduly guarded or restricted, and yet the rule complained of is the law in England." (Page 652.) Here the rule by which privilege is to be measured is correctly stated, as in IVason v. Walter, L. R. 4 O. B. (Eng.) 73 — the balance of public good against private hurt. The argument of counsel is then answered, and the statement is made that a candidate ought not suffer a loss in reputation with the whole public for the public good. That is the question to be decided, and not a reason why it should be so decided. Then the sole reason for the decision is stated — that honorable and worthy men will be driven from politics. Then the consequences of the decision are commented upon : Free- dom of the press will not be endangered — an assertion, as shown by the manner in which public men are handled by the press at the present time — an appeal to experience for proof. The single reason upon which the Hallam decision is based is also in the nature of a prediction, and is not new. It was advanced in this country in 1808, by Mr. Chief Justice Parsons {Common- wealth V. Clap, 4 Mass. 163),^ and by Chancellor Walworth in 1829, in the case of King v. Root, 4 Wend, (N. Y.) 114. The Hallam case quotes the Supreme Court of Ohio in opposi- tion to the liberal doctrine, as follows : "We do not think the doctrine either sound or wholesome. In our opinion, a person who enters upon a public office, or becomes a can- didate for one, no more surrenders to the public his private charac- ter than he does his private property. Remedy by due course of law, for injury to each, is secured by the same constitutional guaranty, But see Commonwealth v. War dwell, 136 Mass. 164 (1883). I COLEMAN V. MAC LENNAN. IO73 and the one is no less inviolate than the other. To hold otherwise would, in our judgment, drive reputable men from public positions, and fill their place with others having no regard for their reputa- tion, and thus defeat the object of the rule contended for and over- turn the reason upon which it is sought to sustain it." (The Post Publishing Company v. Moloney, 50 Ohio St. 71, 89, 33 N. E. 921.) Manifestly a candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office, and the liberal rule requires no more.^ But in measuring the extent of a candidate's profert of character it should always be re- membered that the people have good authority for believing that grapes do not grow on thorns nor figs on thistles. The other argu- ments furnished by the Ohio quotation have already been con- sidered. The Hallam case contains nothing further worthy of note.^' - See accord, Cockburn, C. J., in Seymour v. Biitterworth, 3 F. & F. 372 (1862) ; President Robertson in Bruce v. Leisk, 19 Rettie 482 (Scottish Ct. of Sess. 1892); Cooley, Constitutional Limitations, 440; Van Vechten Veeder, Esq., Freedom of Public Discussion, 23 Harv. L. R. 413 (1910), pp. 429-431 compare Commonwealth v. Wardwell, infra, Note 3, and Wood v. Boyle, 1// Pa. St. 620 (1896) ; Broadbent v. Small, 2 Vict. L. R. Law 121 (1876). ^Accord: George v. Goddard, 2 F. & F. 689 (1861) ; Wisdom v. Broivn, IT L. R. 412 (1885) ; but see Harwood v. Astley, 1 B. & P. N. R. 47 (1804) ; Bruce v. Leisk, 19 Rettie 482 (Scottish Ct. of Sess. 1892) ; Burke v. Mas- carich, 81 Cal. 302 (1889), semble; Mott v. Dawson, 46 Iowa 533 (1877) ; Bays V. Hunt, 60 Iowa 251 (1882) ; Briggs v. Garrett, 111 Pa. St. 404 (1886) ; Ross V. Ward, 14 S. Dak. 240 (1901), all cases of private communications be- tween voters as to candidates for office are made at meetings to consider the fitness of such candidates; Myers v. Longstaff, 14 S. Dak. 98 (1900) ; Boucher V Clark Publishing Co., 14 S. Dak. 72 (1900) ; Marks v. Baker, 28 Minn. 162 (1881) ; State v. Ford, 82 Minn. 452 (1901), semble; Express Printing Co. v. Copcland, 64 Tex. 354 (1885), but see Forke v. Homann, 14 Tex. Civ. App. 670 (1896), similar statements pubHshed in newspapers. In Sweeney v. Baker, 13 W. Va. 158 (1878), a distinction is drawn between allegations of mental or physical unfitness for the office, which are said to be absolutely privileged and attacks on the candidate's moral character which can only be justified by proof of their truth. In most of the American cases it is held that the statements must not only be published in good faith for the guidance of voters but there must be reasonable grounds to believe them true and statements based on mere gossip or rumor are not privileged, Burke v. Mascarich, 81 Cal. 302 (1889) : State v. Ford, 82 Minn. 452 (1901), compare Briggs v. Garrett, HI Pa. St. 404 (1886), contra, Bavs v. Hunt, 60 Iowa 251 (1882). Statements made in town meetings by officers thereof or by taxpayers in regard to the conduct of the town affairs are privileged, Bradley v. Heath, 12 Pick. 163 (Mass. 1831); Smith v. Higgins, 16 Gray 251 (Mass. 1860); Bradford v. Clark, 90 Maine 298 (1897), but see Dodds v. Henry, 9 Mass. 262 (1812). Contra: Jarman v. Rea, 137 Cal. 339 (1902); Dauphiny v. Buhne. 153 Cal 757 (1908); Jones, Varnum & Co. v. Tozvnscnd. 21 Fla. 431 (1885). semble: Rearick v. Wilcox, 81 111. 77 (1876) ; Aldrich v. Press Printing Co., 9 Minn. 133 (1864); Branson v. Bruce, 59 Mich. 467 (1886); Wheaton v. Beccher, 66 Mich. 307 (1887), where, however, the plaintiff was publiclv a candidate for an appointive office, (see Hunt v. Bennett. 19 N. Y. 173 ( 1859) ; though if the object be to inform the electors, "it must reduce the damages to a minimum," Bailey v. Kalamazoo Pub. Co., 40 Mich. 251 (1879); but see Sherwood. J. in Peoples v. Detroit Post, etc., 54 Mich. 457 (1885); Smith V. Bnrrus, 106 Mo. 94 (1891) ; Lewis v. Few, 5 Johns. 1 (N. Y. 1809) ; Upton V. Hume, 24 Ore. 420 (1893). In Coffin v. Brown, 94 Md. 190 (1901), I074 HEMMEXS Z'. IIALSTEAD. (c) Communications made for the protection of others. 1. Where a relation exists making it the maker's duty to protect the recipient. HEMMENS V. HALSTEAD. Court of Appeals State of New York, 1893. 138 Xew York Appeal Rep. 517. Action of slander for statements made by the defendant, who was principal of the Institution for Deaf Mutes at Rome (N. Y.), that the plaintiff, the superintendent of the sewing department whose duty as such was to superintend the making of clothing for the children and instructing a class in sewing, was the author of an obscene anonymous letter received by the defendant's wife. These statements were made to the president of the board of trus- tees, in the course of a consultation with him in regard to the matter. The trial court directed a verdict for the defendant and entered a judgment thereon and denied a motion for a new trial. This ap- peal is taken from the judgment of the general term of the Supreme Court of the 4th Judicial Department affirming the action of the trial court. O'Brien, J. The court held that the defense of privilege, con- tained in the answer, was established and that there was no question for the jury. The General Term has repeatedly reversed judgments in the plaintiff's favor (24 Hun, 395; 36 Hun, 149; 13 State Rep. 211), and has finally affirmed the judgment entered upon the verdict it was held that a letter to a democratic campaign committee criticizing the republican candidate for governor because of his appointment of the plaintiff, who was accused of election frauds, as election supervisor, was not privileged. Many courts allow a wide latitude in publishing to the public the official misconducts of public officers, O'Rourke v. Lewiston Daily Sun Pub. Co., 89 Maine 310 (1896); Evening Post v. Richardson, 113 Ky. 641 (1902) ; Neeh v. Hope, 111 Pa. St. 145 (1885) ; Berber v. Gazette & Bulletin Pub. Co., 212 Pa. St. 367 (1905), or the misconduct of public affairs if published for the purpose of inducing citizens to use their influence to have the abuse remedied. Palmer v. Concord. 48 N. H. 211 (1868), and see Crane v. Waters, 10 Fed. 619 (1882), where Lowell, C. J. held that the construction and operation of a railroad, though not the value of its se- curities, was of sufficient public interest to warrant the publication of a supposed scheme to wreck it: Contra. People v. Fuller, 238 III. 116 (1909) ; Foster v. Scripps, 39 "SUch. 376 (1878); Benton v. State, 59 N. J. L. 551 (1896); Banner Publishing Co. v. State. 16 Lea 176 (Tenn. 1885); Ham- ilton V. Eno, 81 N. Y. 116 (1880) ; Ullrich v. New York Press Co., 23 Misc. 168 (1898 N. Y.) ; Eviston v. Cramer, 57 Wis. 570 (1883). But statements as to an official's private character which might be privileged if made while he was a candidate, are not privileged if made after his election. Commonwealth v. Wardwell, 136 Mass. 164 ('i883)._ See on the whole subject, especially the confusion between "privilege" and "fair comment" often noticeable in cases discussing libel on public officers and candidates for office. Van Vechten Veeder, Esq., Freedom of Public Discussion. 23 Harv. L. R. 413 (1910). LEWIS V. CHAPMAN. IO75 directed against her. There can be no doubt that the occasions upon which the defendant is shown to have made the charge were privi- leged, the only question being as to its nature and extent. The defend- ant occupied an important and responsible office under the authority of the state, involving the performance of duties of the most varied and delicate nature, upon the proper discharge of which the efficiency and welfare of the institution largely depended. It was his duty to w^atch and carefully observe the moral conduct, not only of the chil- dren committed to his charge, but even in a greater degree, the teachers, upon whose influence and example so much, for good or evil, depended. It was essential that he should be at Hberty to com- municate freely with the governing body as to any matter touching the conduct of either the teachers or the pupils. This he could not do if hampered by fear of penalties that could follow errors of judgment or mistakes, as to who was or was not properly chargeable with improper conduct. If the defendant believed that the plaintiff was the person who sent the letter it was his duty to communicate the fact to the execu- tive committee and the president, all of whom had a corresponding duty with respect to everything that concerned the welfare of the institution, and his statements, under such circumstances, were con- fidential and privileged until the plaintiff removed the privilege by proof, on her part, of actual, or, as it is sometimes called, express malice or malice in fact. (Byam v. Collins, iii N. Y. 143; Vander- see V. McGregor, 12 Wend. 545 ; Van IVyck v. Aspinwall, 17 N. Y. 190; Washburn v. Cooke, 3 Den. 120; Hemmens v. Nelson, 36 Hun, 155 ; Moore v, M. N. Bank, supra.y Judgment affirmed. LEWIS AND HERRICK v. CHAPMAN. Court of Appeals of the State of New York, 1857. 16 New York, 369. The judge charged the jury that this postscript was libelous, if false, and that unless they should find the matter contained in it ^Accord: Hume v. Marshall, 42 J. P. 136 (Eng. 1877) ; Scarll v. Dixon, 4 F. & F. 250 (1864) ; Sutton v. Plumridgc, 16 L. T. 741 (1867). So a railway owes a duty to communicate the reasons for discharging an employee to other officials of the same line, Bacon v. Mich. Cent. R. Co., 66 Mich. 166 (1887); Missouri Pacific R. Co. v. Richmond, 72, Tex. 568 (1889), or to officials of other roads, Missouri Pacific R. Co. v. Richmond, scmble ; Denver Public Warehouse Co. v. Holloway, 34 Colo. 432 (1905), communication by one official of a corporation to another directing the discharge of an employee; Stace v. Griffith, L. R. 2 P. C. 420 (1869), com- manding officer of a regiment at St. Helena reported to the colonial secre- tary of the island the supposed drunkenness at a mess dinner of the plain- tiff, a master in the government school: tally v. Emery, 54 Hun 517 (N. Y. 1889), statements defamatory of the plaintiff made to his commanding officer by another officer: Bell v. Parke, 10 Ir. C. L. R._ 279 (1860), per Pigot. C. B., consultation with brother officers as to propriety of reporting plaintiff to the commanding officer; Livingston v. Bradford, 115 Mich. 140 (1897), consultation between cashier and bookkeeper of a bank about the theft of 1076 LEWIS V. CHAPMAN. substantially true they must find for the plaintifif; that, so far as malice was necessary to a right of action in this case, it was properly inferable, from the falsity of the words charged in the complaint, as libelous. The defendant excepted to this portion of the charge, and the jury rendered a verdict for the plaintiff for $750. The Supreme Court, at general term in the seventh district, denied a motion for a new trial, and judgment having been perfected for the plaintiffs, the defendant appealed to this court. Selden, J. The inquiry, then, is whether the circumstances in this case were such as to bring the communication within the class termed privileged. Where both parties, i. e., the party making as well as the party receiving, have an interest in the communication, it has never been doubted that it was privileged. Where, however, the interest is con- fined solely to the party receiving, the authorities are not so decided. But whatever may be the true doctrine on this subject, there is no doubt that where the communication is made bona fide, in an- swer to inquiries from one having an interest in the information sought, or where the relation between the parties by whom and to whom the communication is made is such as to render it reasonable and proper that the information should be given, it will be regarded as privileged. The precise question here is, whether such a relation existed in this case. In Todd v. Hazvkins (8 Carr. & Pa., 88), it was held that a letter written in good faith by the defendant to his mother-in-law, who was about to marry again, warning her of the bad character of her intended husband, was privileged ; and a like decision was made in the case of Cockayne v. Hodgkisson, (5 Carr. & Pa., 543), where a tenant of a nobleman had written to inform him of his gamekeeper's neglect of duty. So, too, in this state, in the case of IVashhuni v. Cooke (3 Denio, no), a communication made by an agent to his principal, in regard to the conduct of a, third person connected with the business of the agency, was held to be privileged. These cases show that all that is necessary to entitle such com- munications to be regarded as privileged is, that the relation of the parties should be such as to afford reasonable ground for suppos- ing an innocent motive for giving the information, and to deprive the act of an appearance of officious intermeddling with the affairs of others. Assuming, then, that the defendant made the communi- cation in perfect good faith, as we must upon this question of privi- lege, is it to be regarded as an act of officiousness, on the part of a banker in the country, intrusted by a mercantile house in New York with the collection of a note, to inform such house of the inability of the maker to meet the note at maturity? It would seem that if the relation of a son-in-law to his mother-in-law, of a tenant to his landlord, and of an ordinary agent to his principal, are sufficient, as bank funds, compare Branstetter v. Dorrongh, 81 Tnd. 527 ("1882). where statements made in consulting friend, as to the propriety of letting the plain- tiff know what was being said about him, were held not privileged. LEWIS Z'. CHAPMAN. IO77 in the cases just cited, to cause the information to be considered as privileged, that existing in this case must be equally so. It is a mat- ter of the utmost interest to merchants in the city to be able to judge of the responsibility of their customers in the country ; and even if they have no right to expect information on the subject from those whom they employ to collect their paper, yet the giving of such in- formation by the person employed, where, as in this case, it relates to the very business with which he is intrusted, can scarcely be con- sidered as officious, or more than an act of just reciprocity. The communication, therefore, charged in this case as libelous, must be regarded as privileged. The defendant is nevertheless liable if there was any want of good faith in making it; but that question must be passed upon by the jury, and there must be a new trial for that purpose.^ * So, though no Htigation is actually going on, a solicitor may give his client any information of apparent value to him, Browne v. Dunne, The Re- ports, Vol. 6, p. 67 (H. L. 1893); Davis v. Reeves, 5 Ir. C. L. 79 (1855). and may inform the next friend of his minor client of the latter's conduct prejudicial to his interests in the litigation, Wright v. Woodgate, 2 C. M. & R. 573.(1835). So a physician may discuss with a patient the professional character of the druggist who puts up his prescriptions, Cameron v. Cock- ran, 2 Marv. 166 (Del. 1895), see Humphreys v. Stilwell, 2 F. & F. 590 (1861), and may state his professional opinion as to his patient's condition to her, even in the presence of her friends asked by her to be present, Brice v. Curtis, 38 D. C. App. 304 (1912), though of course he is not priv- ileged to discuss his patients' ailments with others. So when the plaintiff is in the employment of the defendant or is per- forming a contract with him, he may give_ information to the plaintiff's surety, as to any conduct of the plaintiff prejudicial to the surety's interest as such, Dunman v. Bigg, 1 Camb. 269 note (1808) ; Sunley v. Metropolitan Life Ins. Co., 132 Iowa 123 (1906) ; and see Ward v. Ward, 47 W. Va. 766 (1900), statements by surety to creditor, and Rothholz v. Dunkle, 53 N. J. L. 438 (1891). In Schiihe v. Jalonick, 18 Tex. Civ. App. 296 (1898), an insurance agent made ratings of all the property in the neighborhood for the information of his companies, in them he discredited the plaintiff's prem- ises, which were not insured, as being used for the illegal sale of liquor, the transmissions of these ratings to his principals was held privileged. Where the defendant, who has given the plaintiff a letter of recom- mendation, or otherwise so acted as to hold him out as trustworthy, hon- estly believes that he had discovered facts which make such recommenda- tion misleading, it is held to be his moral duty and legal right to communi- cate to any one who has emploved or trusted the plaintiff in reliance on it, Dixon v. Parsons, 1 F. & F. 24 (1858); Fowles v. Bowen, 30 N. Y. 20 (1864); Butterivorfh v. Conrozv, 1 Marv. 361 (Del. 1895), and see Fahr v. Hayes, 50 X. J. L. 275 (1888). An employer is in duty boimd to tell a servant the reason for his dis- charge, Taylor v. Hawkins. 16 Q. B. 308 (1851) ; R. v. Perry, 15 Cox C. C. 169 (1883); and if the offense was believed to have been committed by two jointly, he may tell each of it. though it necessarily involves the other, Manby v. Witt, Eastmead v. JTitt, 18 C. B. 544 (1856), but see Moore v. Manufacturers Xat'l. Bank, 123 X. Y. 420 (1890), contra, O'Brien, J., dis- senting. An employer of minor or female servants owes their parents, or those standing to them in loco parentis, the duty of acquainting them with such servant's misconduct, whether it leads to dismissal or not, James v. Jolly, cited in Odger's Libel and Slander, 4th ed., p. 286; Aberdein v. Macleay, 9 Times L. R. 539 (1893) ; Gorst v. Barr, 13 Ont. 644 (1887) ; Livingston v. Bradford, 115 Mich. 140 (1897) ; but not it seems to inform a wife of the 1078 MAC INTOSH V. DUN. MACINTOSH v. DUN. Judicial Committee of the Privy Council, House of Lords, 1908. 1908 Law Reports, Appeal Cases, 390. Lord Macnaghten. This is an appeal from the decision of the High Court of Australia pronounced on cross-appeals from two orders of the Full Court of New South Wales. The action was an action for libel. It was tried before Cohen J. and a jury. The plaintiffs obtained a verdict for £800. The Full Court set the verdict aside, but directed a new trial. The High Court entered judgment for the defendants. The question, and the only question on the present appeal, is whether the occasion on which the libels were published was or was not a privileged occasion. The plaintiffs are wholesale and retail ironmongers in Sydney. The defendants (as their acting manager in Sydney stated in an affidavit filed in the action) carry on the business of a trade pro- tective society "in almost all parts of the civilized world" under the name of "The Mercantile Agency." That business, as the acting manager explained, "consists in obtaining information with refer- ence to the commercial standing and position of persons" in the State of New South Wales "and elsewhere and in communicating such information confidentially to subscribers to the agency in re- sponse to specific and confidential inquiry on their part."^ (He then quotes the oft-quoted passage from the opinion of Parke, B., in Toogood v. Spyring, i C. M. & R. 181, at p. 193.-) That passage, which, as Lindley L. J. observes,^ is frequently cited, and "always with approval," not only defines the occasion that protects a communication otherwise actionable, but enunciates the cause of her husband's dismissal from his employment. Jones v. Williams, 1 Times L. R. 572 (1885), but compare Wells v.'Lindop, 15 Ont. App. 695 (1888). ^ He stated further that all requests for information directed to the agency by their subscribers are in the following form : "Subscriber's Ticket. "The Mercantile Agency. "R. G. Dun and Co. "Established 1841. "Give us in confidence and for our exclusive use and benefit in our busi- ness, viz., that of aiding us to determine the propriety of giving credit, what- ever information you have, respecting the standing, responsibility, etc., of — "Name "Business "Town "Street Address "State "Subscribers to sign the above themselves. "Sydney, "Subscriber, "190.. per "No " " This passage is quoted in the opinion in Gilbert v. Gassett, ante. ■Stuart v. Bell, L. R. 1891, 2 Q. B. 341, p. 346. 3 MAC INTOSH V. DUX. 10/9 principle on which the protection is founded. The underlying prin- ciple is "the common convenience and welfare of society" — not the convenience of individuals or the convenience of a class, but, to use the words of Erie C. J. in Whiteley v. Adams, 15 C. B. (N. S.) 392, at p. 418, ''the general interest of society."* Communications injurious to the character of another may be made in answer to inquiry or may be volunteered. If the communi- cation be made in the legitimate defence of a person's own interest, or plainly under a sense of duty such as would be "recognized by English people of ordinary intelligence and moral principle" to bor- row again the language of Lindley L. J.,^ it cannot matter whether it is volunteered or brought out in answer to an inquiry. But in cases which are near the line, and in cases which may give rise to a difference of opinion, the circumstance that the information is volunteered is an element for consideration certainly not without some importance. If in defence, therefore, to the views of the learned judges of the High Court, the first question would seem to be, under which category does the communication now in question properly fall? No doubt there was a specific request. In response to that request the communication was made. That much is clear. But it is equally clear that the defendants set themselves in motion and formulated and invited the request in answer to which the information com- plained of was produced. The defendants, in fact, hold themselves out as collectors of information about other people which they are ready to sell to their customers. It cannot matter whether the cus- tomer deals across the counter, so to speak, just as and when the occasion arises, or whether he enjoys the privilege of being enrolled as a subscriber and pays the fee in advance. If, then, the proprietors of the ^^lercantile Agency are to be regarded as volunteers in supplying the information which they pro- fess to have at their disposal, what is their motive? Is it a sense of duty? Certainly not. It is a matter of business with them. Their motive is self-interest. They carry on their trade, just as other traders do, in the hope and expectation of making a profit. Then comes the real question : Is it in the interest of the com- munity, is it for the welfare of society, that the protection which the law throws around communications made in legitimate self- defence, or from a bona fide sense of duty, should be extended to *In Elkington v. London Association for the Protection of Trade, 28 T. L. R. 117 (1911), Darling, J., understanding this to mean that the information must be "published for the benefit of society at large" and not for the benefit or convenience of individuals or "a limited class,"' held that an association of traders issuing a report for the information of its members and not for profit, were not privileged to publish therein imputations on the solvency of custom- ers, accord, Lord Alverstone, C J., in Greenlands v. Wihnhurst, 29 L. T. R. 64 (1912), affirmed in the Court of Appeals, L. R. 1913. 3 K. B. 507, Bray, J.. dissenting; contra, Barr v. Musselburgh Merchants' Association, 1912 Session Cases 174 (Scotland Ct. of Sessions), and Howe v. Lees, 11 Commonwealth L. R. 361 (Australia 1910). "^L. R. 1^1, 2 Q. B., p. 350 I080 MAC IXTOSII V. DUN'. communications made from motives of self-interest by persons who trade for profit in the characters of other people? The trade is a peculiar one ; still there seems to be much competition for it ; and in this trade, as in most others, success will attend the exertions of those w^ho give the best value for money and probe most thoroughly the matter placed in their hands. There is no reason to suppose that the defendants generally have acted otherwise than cautiously and discreetly. But information such as that which they offer for sale may be obtained in many ways, not all of them deserving of commendation. It may be extorted from the person whose charac- ter is in question through fear of misrepresentation or misconstruc- tion if he remains silent. It may be gathered from gossip. It may be picked up from discharged servants. It may be betrayed by dis- loyal employees. It is only right that those who engage in such a business, touching so closely very dangerous ground, should take the consequences if they overstep the law. However convenient it may be to a trader to know all the se- crets of his neighbor's position, his "standing," his ''responsibility," and whatever else may be comprehended under the expression "et cetera," yet, even so, accuracy of information may be bought too dearly — at least for the good of society in general. It is admitted that in this country there is no authority directly in point. There are direct authorities in the United States in favor of the conclusion of which the High Court has arrived. American authorities are, no doubt, entitled to the highest respect. But this is a question which must be decided by English law. In the dearth of English authority it seems to their Lordships that recourse must be had to the principle on which the law in England on this subject is founded. With the utmost deference to the learned judges of the High Court, their Lordships are of opinion that the decision under appeal is not in accordance with that principle.'' ^Accord: Johnson v. Bradstreet Co., 77 Ga. 172 (1886), "If one makes it his business to pry into the affairs of another, in order to coin money for his investigations and information, he must see to it that he communicate nothing that is false"; and see Beardsley v. Tap pan, 5 Blatchf. 497 tU. S. 1867), con- fining the privilege of making such communication to individuals, and denying it to a society, association, or a corporation. Cofitra: Erber v. Dun, 4 McCrary (U. S.) 160, 12 Fed. 526 (1882) ; Pol- lasky v. Minchener, 81 Mich. 280 (1890) ; King v. Patterson, 49 N. J. L. 417 (1887) ; Ormsby v. Douglas, 37 N. Y. 477 (1868) ; CommonweaUh v. Stacev. 8 Phila. 617 (Pa. 1871) ; Bradstreet Co. v. Gill, 72 Tex. 115 (1888) ; State ex rel. Lanning v. Lonsdale, 48 Wis. 348 (1880) ; Todd v. Dun, 15 Ont. App. 85 (1887) ; Fitssimons v. Duncan, Kemp & Co., L. R. 1908, 2 Jr. 483 (semble). The same privilege attaches to the communications by the correspondents of such agencies to them of information from which their reports are made up, State ex rel. Lanning v. Lonsdale, supra; contra, Sherwood v. Gilbert, 2 Alb. L. J. 323 (N. Y. 1870). See on the whole subject the learned and exhaustive essay of Hon. Jeremiah Smith, 14 Col. L. R. 137-296 (1913) and note in 57 U. of Pa. L. Rev. 179. RUDE V. NASS. IO81 2. Where no relation exists making it peculiarly the duty of the maker to protect the recipient's interests. (a) Communication made in answer to inquiries. RUDE V. NASS. Supreme Court of Wisconsin, 1891. 79 Wisconsin Reports, 321. The father of a girl, who had caused the plaintiff's arrest for her seduction, requested a friend to write to the defendant, pastor of a church with which the plaintiff had previously been connected. The defendant in answer, wrote the letter in question, which was admittedly libelous. Cassoday, J. Counsel contend, in effect, that, assuming, as we must, upon the verdict, that the defendant wrote and sent the letter believing it to be true, in good faith, and without malice, yet the circumstances were not such as to make it privileged. They contend that, in order to be privileged, the defendant should have had an interest in the subject-matter of the letter, or some duty to perform in reference thereto, and also that the person to whom it was ad- dressed should have had a corresponding interest or duty ; and they cite decisions of learned courts in support of such contention. Some of these decisions, however, are inconsistent with others made by the same courts. In Noonan v. Orton, 32 Wis 112, Dixon, C. J., approvingly quotes the language of Shaw, C. J., as follows : ^' Where wo^ ds im- puting misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the disch arge _o_f that duty, or where they are spoken in good faith to those who have an interest in the commu- nication, and a right to kjiaw^nd act upon the facts stated, no pre- sumption of malice arises ^om the speaking of the words, and therefore no action can_be maintained in such cases without proof of express malice." Bradley v. Heath, 12 Pick. 164. These cases were cited approvingly in M. P. Ry. Co. v. Richmond, y^t Tex. 575. This alternative statement only makes it necessary that there be an interest or duty on the part of the person making the com- munication, or on the part of the person to whom it is made, in order that it is to be conditionally privileged. There are certainly many cases holding that such communication may be conditionally privileged if made to one having an interest in and a right to know and act upon the facts therein stated. Wcathcrston V. Hazvkins, i Term. Rep. no; Tzuogood v. Spyriiig, i Cromp. j\I. & R. 181 ; Kine V. Sczcell, 3 Mees. & W. 297 ; Rohshaiu v. Smith, 38 Law T. (N. S.) 423; Waller v. Lock, 45 Law T. (N. S.) 242; Tompson v. Dash- wooa, L. R. II Q. B. Div. 43; Atzvill v. Mackintosh, 120 Mass. 177; Io82 RUDE V. NASS. SundcrUn v. Bradstrect, 46 N. Y. 191 ; Bacon v. M. C. R. Co., 66 Mich. 166. Thus in Rohshaiv V. Smith, supra, it was said by Grove, J., speaking for the court : 'The defendant did not act as a volunteer, but was apphed to for information. When apphed to, he did give such information as he possessed. He might have refused to give that information. He had no legal duty cast upon him to give any opinion. But he was entitled to give his opinion when asked, and, a fortiori, as it seems to me, to show any letters he had received bearing on the subject. . . . Every one owes it as a duty to his fellow-men to state what he knows about a person, when inquiry is made ; otherwise no one would be able to discern honest men from dishonest men. It is highly desirable, therefore, that a privilege of this sort should be maintained." Lindley, J., was of the same opin- ion, and said: "I think it would be a lamentable state of the law, if, when a person asks another for information, that other could not give such information as he possessed without exposing himself to the risk of an action." Upon a review of the authorities, that case and these expressions were fully sanctioned by Jessel, M. R., in Waller v. Lock, supra, who went still further, and said : "If the answer is given in the discharge of a moral and social duty, or if the person who gives it believes it to be so,^ that is enough. It need """~*ndr even be an answer to an inquiry, but the communication may be a voluntary one. The law is concisely stated by Lord Blackburn. . . . thus : 'Where a person is so situated that it becomes right in the interests of society that he should tell to a third person facts, ^"IhenTif he bona fide and without malice does tell them, it is a privi- l^ed communication.' It appears to me, that if you ask a question "ofaperson whom you believe to have the means of knowledge about the character of another person with whom you wish to have any dealings whatever, and he answers bona iide, that is a privileged communication. I might illustrate this by the instances of inquiries being made of a friend or a neighbor about a tradesman, a doctor, jpr a solicitor. Society could not go on without such inquiries. The [Whole doctrine of privilege must rest upon the interest and the necessities of society. If every one was open to an action of libel lor slander for the answers he might make to such inquiries, it would fee very injurious to the interests of society." The eminence of that late learned master of the rolls, who thus expressed the opinion of the court, and the confusion among some of the adjudications, seem to justify the lengthy quotation made. In view of these authorities, and others which might be cited, it seems to us that the father of the girl who made the complaint upon which the plaintiff had been arrested had an interest in the communication sent by the defendant, and had the right to know and act upon the facts therein stated ; and hence, had the letter been written by the defendant in answer to inquiries made by the father * As to this see Lindley, L. J. in Stuart v. Bell, 1891, L. R. 2 Q. B. 341, p. 349, contra. BYAM Z'. COLLINS. I083 personally, it would have been conditionally privileged. The mere fact that the letter was written by the defendant in answer to in- quiries made by another for and in behalf of the father does not take away the privileged character of the communication. This is manifest from some of the authorities cited. We must hold that there was no error in submitting the case to the jury on the theory that the communication was conditionally privileged.^ BYAM V. COLLINS. Court of Appeals State of Neiv York, 1888. Ill New York, 143. Earl, J. There was, also, error in the court below as to the verbal slanders alleged in the second cause of action ; and what I have already said applies, in part, to these slanders. ^Accord: Defamatory statements made in answer to inquiries, as to the character of a servant or employee, made by one to whom the latter has applied for employment, Edniondson v. Stephenson, BuUer, N. P. 8 (1765); Wabash R. Co. v. Young, 162 Ind. 102 (1904); Posnett v. Marble, 62 Vt. 481 (1889); or made by one servant of another in answer to his mistress' questions. Mead v. Hughes, 7 Times L. R. 291 (1891), or by third parties, Cockayne v. Hodgkisson, 5 C. & P. 543 (1833), or made to landlord in answer to his inquiries as to the character of his tenants, Liddle v. Hodges, IS N. Y. Super. Ct. (2 Bosw.) 537 (1858), or by a physician report- ing to a husband his belief that the latter's wife is insane, IVeldon v. U'inslow, London Times, March 14 to 19 (1884), or statements as to char- acter of a girl's fiance made in answer to the inquiries by her family. Bnisson v. Huard, 106 La. 768 (1901), or statements as to the character of a minor child made in answer to its parents' inquiry, Long v. Peters, A,7 Iowa 239 (1877), are privileged. So one is privileged to answer questions put by another in the course of his investigation of a crime actuallv or honestly believed to exist, per Parke B., Kine v. Sewell, 3 M. & W. "297 (1838), p. 302. So when a man on being asked for his reason for refusing to sign the plaintiff's petition to retain his position as trustee of a charity, on being pressed gave them, his answer was held in Cozvles v. Potts, 34 L. J. Q. B. 247 (1865) to be privileged, compare Whiteley v. Adams, 15 C. B. (N. S.) 392 (1863). So replies to inquiries as to the solvency or respectability of a person with whom the inquirer has or is about to have business or professional dealings, Lord Denman in Storey v. Challands, 8 C. & P. 234 (1837) ; Broniage v. Prosser, 1 C. & P. 475 (1824) ; Robsliaw v. Smith, cited in the principal case, in which even the showing of an anonymous letter was held privileged; Fahr v. Hayes, 50 N. J. L. 275 (1888) ; Howland v. Blak-e Mfg. Co., 156 Mass. 543 (1892). For other cases, see Odgers, Libel and Slander, 4th Ed., pp. 238 to 242. One specifically employed to obtain information is privileged to state the facts he believes he has discovered, Atzvill v. Mackintosh, 120 Mass. 177 (1876), agent employed by a father to obtain information as to the char- acter of his daughter's suitor; Zuckerman v. Sonncnschein, 62 111. 115 (1871 ). interpreter translating slanderous words; Washburn v. Cooke, 3 Denio 110 (N. Y. 1846), law student employed by sheriff to ascertain facts and advise him what course to take; Taylor v. Cliurch, 8 N. Y. 452 (1853), agent cm- ployed by association of merchants to ascertain the credit of their cus- tomers, see Mcintosh v. Dun, post. But the statement must be responsive to the inquiry, Southani v. Allen, T. Raym. 231 (1673), Huntlev v. Ward, 6 C. B. (N. S.) 514 (1859) ; Odger's Libel and Slander, 4th Ed.," 239. 1084 BYAM V. COLLINS. The judge charged the jury, in substance, that the words, it uttered under the circumstances testified to by Mrs. Colhns, were privileged. She testified, in substance, that she uttered the words to ^Ir. Cameron in confidence, after the most urgent sohcitation on his part that she should tell him what she knew about the plaintiff. But defamatory words do not become privileged merely because uttered in the strictest confidence by one friend to another, nor be- cause uttered upon the most urgent solicitation. She was under no duty to utter them to him, and she had no interest to subserve by uttering them. He had no interest or duty to hear the defamatory words, and had no right to demand that he might hear them ; and under such circumstances there is no authority holding that any privilege attaches to such communication.^ There was no evidence that would authorize a jury to find that Cameron sought the interview with ?\Irs. Collins, as an emissary from or agent of the plaintiff', or that at the plaintiff's solicitation or instigation he obtained the slanderous communications from her, and he did not profess or assume to act for him on that occasion. He was the mutual friend of the parties,^ and seems to have sought ^Accord: Carpenter v. JVilley, 65 Vt. 168 (1892), a former pastor has no legitimate interest in. nor right to inquire into the chastity of a female member of his former congregation, so statements concerning her chastity are not privileged though made in answer to his pressing inquiries. So. when the occasion for information is passed, so that the recipient's interest, or the common interest of both giver and recipient therein no longer exists, the information can neither be given upon inauiry, Martin v. Strong. 5 A. & F. 535 (1836), as explained in Kine v. Sewe'll, 3 M. & W. 297 (1838), pp. 3eUafe Division of the Siipreme Court of Rhode Island, 1898. 20 R. I. 67A. Trespass on the case for libel. Heard on demurrer to defend- ant's special plea in justification. Stiness, J. The plaintiff sues to recover damages for a libel mo METCALF V. TIMES PUBLISHING CO. alleged to have been printed in "The Evening Times," a newspaper in Pawtucket, published by the defendants. The declaration sets out that upon the filing of a bill in equity by Annie Campbell against the plaintiff and other associates in business, charging them with having conspired to defraud her deceased husband, Duncan H. Campbell, of certain letters patent of this and foreign countries, and, upon the order by a justice for citation an ex parte preliminary injunction, until hearing, the defendants published the charges of . fraud, to the damage of the plaintiff. The defendants plead specially that the said Evening Times was a public newspaper ; that they published said matters because they believed them to contain information which it was important for the public to know ; that said matters were a part of the public records of this court, upon which there had been judicial action, which, denying all malicious intent, it was lawful for them to do. The plaintiff demurs to the plea. The question of privileged communications is one that has been much considered, and certain lines may now be said to be well estab- lished. In The King v. Wright, 8 D. & E. 293, in 1799, which was an application for a criminal information for libel growing out of the Home Tooke case, it was held that a report of the House of Com- mons could be published, even though it reflected on the charac- ter of an individual. Hoare v. Silverlock, 9 C. B. 20, was to the eft'ect that a full and impartial report of a trial in a court of justice could be published.^ Some stress was laid upon the distinction between a full trial and an ex parte proceeding, which, however, was not necessary to the decision of this case. Davison v. Duncan, 7 E. & B. 229, held that a fair report of defamatory matter uttered in a public meeting was not privileged. McGregor v. Thwaites, 3 B. & C. 24 (10 E. C. L. 6), 1824, held that proceedings before a magistrate, not judicial but advisory, were not privileged, and Duncan v. Thzvaites, 3 B. & C. 556 (10 E. C. L. 179), extended the rule to proceedings which took place in the course of preliminary inquiry before a magistrate. Lewis V. Levy, E. B. & E. 535, questioned the decision in Dun- "■ Accord: McChire v. Revicxv Publishing Co., 38 Wash. 160 (1905); American Publishing Co. v. Gamble, 115 Tenn. 663 (1905), unless the publica- tion is prohibited by the court or the subject-matter is unfit for publication, American Publishing Co. v. Gamble, semble; see Rex v. Clement, 4 B. & Aid. 218 (1821) ; Rex v. Marv Carlilc, 3 B. & Aid. 167 (1819), and Steele v. Bran- nan,!.. R. 7C. P. 261 (1872). See as to the right to report the proceedings of a body appointed by con- gress, a state legislature, or a municipal legislative body, to investigate mat- ters of pubHc interest, Terr\ v. Fellows. 21 La. Ann. 375 (1869) : Meteye v. Times-Democrat, 47 La. Ann. 824 (1895) ; and see Beta &■ Co. v. Wren, 63 Tex. 686 (1884). The privilege is not peculiar to newspapers, any one may fairly report in writing or print, or repeat verbally, any judicial proceedings. Butt, L. J., in Milissich v. Lloyds, 46 L. J. C. P. 404 (1877), p. 407; Salmon v. Isaac, 20- L. T. 885 (1869). METCALF V. TIMES PUBLISHING CO. II 1 1 can V. Thzvaites, and although the case was understood to hold that the privilege of a fair report extended to proceedings taking place publicly before a magistrate on the preliminary investigation of a criminal charge, terminating in the discharge of the prisoner, yet the court did not expressly decide that question. Reg. V. Gray, lo Cox Crim. Cas. 184, carried the rule to this extent, but the court was not unanimous in the decision. In Usil V. Hales, 47 L. J. (1878) 323, Lord Coleridge, C. J., fully adopted the apparent rule of Leivis v. Levy, and Lopes, J., concurring, said : "There are authorities which, until they are care- fully examined, would seem to support the contention that an ex parte proceeding in courts is not privileged. So far as I can ascer- tain, these are cases where the proceeding was preliminary, and where there was no final determination at the time of the alleged libelous report." In Wason v. Walter, L. R. 4 O. B. jt^, the dictum of Cockburn, C. J., goes further, that fair reports of all ex parte proceedings are privileged. Ryalls V. Leader, L. R. i Exch. 296, held that the examination of a debtor in custody, before a registrar ip bankruptcy, was a pro- ceeding before a public court, and hence privileged. In Kimber v. The Press Association, i O. B. Div. (1893) 65. the court went to the full length of holding that the publication of a fair report of proceedings held in open court, though preliminary and ex parte, is privileged. This case is quite remarkable from sev- eral facts. It was an application to magistrates, specially called to- gether by the clerk, for a summons to one charged with perjury, and no evidence was given under oath. The application was granted, and one of the principal questions argued was whether it was an open court. It was also held that the matter was one for final de- termination, because if it was refused it would be final, and if it was granted there would be a further inquiry and the matter might go on to trial. Following the outline of leading decisions, in which there has been a gradual progress, the law of England seems now to be that a full and fair report of proceedings in an open court, upon a matter standing for final decision, even though the inquiry may be prelimi- nary and ex parte, is privileged. See opinion of Kay, L. J., in Kim- ber V. Press Association. In this country the law has been declared in very much the same way. In Cincinnati Gazette v. Tiniberlake, 10 Ohio St. 548, i860, it was held that privilege does not extend to the publication of preliminary proceedings merely, which are of a purely ex parte character. The opinion, however, follows the earlier English cases. Barber v. St. Louis Dispatch, 3 IMo. App. 377, laid down this rule : "Where a court or public magistrate is sitting publicly, a fair account of the whole proceedings, uncolored by defamatory com- ment or insinuation, is a privileged communication, whether the pro- ceedings are on a trial or on a preliminary and ex parte hearing. But the very terms of the rule imply that there must be a hearing of some kind. In order that the ex parte nature of the proceeding may not 1 1 12 METCALF V. TIMES PUBLISHING CO. destroy the privilege — to prevent such a resuh — there must be at least so much of a public investigation as is implied in a submission to the judicial mind, with a view to judicial action." In this case a petition for divorce had been filed, but it had not been presented to a court at any sitting, with a view to judicial action. In Park v. Detroit Free Press, 72 Mich. 560, it was held that the publication of the pleadings or other contents of the files in a private suit before hearing, or action in open court, is not privi- leged. - McBee v. Fulton, 47 Md. 403, held that an examination before a magistrate, whether the accused permits them to be ex parte or whether he makes defence, is privileged, upon the ground that it is a proceeding before a public court of justice. In New York, a statute of i§54, limiting actions for the publi- cation of a fair and true report of judicial proceedings to cases of malice, was held to be declaratory of the common law, in Ackerman V. Jones, 37 N. Y. Super. 42, and that under the statute an ex parte affidavit presented to a police magistrate to obtain a search warrant was privileged. Cozvley v. Pulsifer, 137 Mass. 392, contains a full review of this subject by Mr. Justice Holmes. It was an action for libel in publishing a petition for the removal of an attorney from the bar, which had not been presented to the court. The question, there- fore, was quite different from the one before us, but the court assumes the rule, admitted by the plaintiff in that case, that the privilege attaches to fair reports of judicial proceedings, even if preliminary and ex parte. The rule, as thus stated, seems now to be settled as the law, both in England and this country, and it makes a clear line of dis- tinction between publications which are lawful and those which are not. It gives no license to publish libelous matter simply because it is found in the files of a court. As a publisher of news and items of public importance the press should have the freest scope ; but as a scandal-monger it should be held to the most rigid limitation. If a '^Accord: Byers v. Meridian Printing Co., 84 Ohio St. 408 (1911), and cases cited therein, and in the note thereto in 38 L. R. A. (N.'S.) 913; and Mxo7i V. Dispatch Printing Co., 101 Minn. 309 (1907), 12 L. R. A. (N. S.) 188 with note, compare Thompson v. Powning, 15 Nev. 195 (1880). An accurate transcript of court records relating to any judicial proceed- ings is privileged, Andrews v. Nott Bower, L. R. 1895, 1 Q. B. 888, p. 896; Iteming v. Newton, 1 H. L. C. 363 (1848), even though the record is itself inaccurate, McCabe v. Joynt, 1901, 2 Ir. R. 115, though a belated transcript of a record of judicial action since reversed, or the pubHcation of a judgment as existing which has been satisfied, is not privileged, McNally v. Oldham, 16 Ir. C. L. R. 298 (1863) ; Williams v. Smith, L. R. 22 Q. B. D. 134 (1888). But one reporting such records does so at his peril and the transcript is not privileged if inaccurate, Stubbs v. Russell, L. R. A. 913 A. C. 38; Ingram v. Reed, 5 Pa. S. C. 550 (1897). As to the right to publish transcripts from other records bv statute open to the public, compare Reiss v. Perry, 11 Times L. R. 373 (1895), 64 L. J. Q. B. 566, with Covwrs v. Publishing Co.. 183 Mass. 474 (1903). METCALF V. TIMES PUBLISHING CO. III3 man has not the right to go around to tell of charges made by one against another, much less should a newspaper have the right to spread it broadcast and in enduring form. It is necessary to the ends of justice that a party should be allowed to make his charges against another, for adjudication, even though they may be of a libelous character, and as such they are privileged, the injured party having a remedy for malicious prosecution when they are made maliciously or without probable cause. But the right of a party to make charges gives no right to others to spread them. When the charges come up for adjudication, however, although their publica- tion may be as harmful and distressing to the person accused as if they had been published before their consideration by a court, a dif- ferent rule applies. Individual feelings are no longer considered, for the reason, as stated by Judge Holmes: "It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen wnth another are of public concern, but because it is of the highest moment that those wdio administer jus- tice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Accepting and applying the rule, as we understand it to be, two questions arise : First, does the plea set forth a proceeding before a court, and, second, does it aver to be a full and fair report. As to the first question, it sets out an application in chambers, upon a motion for an ex parte injunction before and until a hearing. Ordinarily the only consideration which is, or can be, given to it is whether the bill states an exigency upon its face sufficient to warrant an order to hold property in statu quo, until a hearing can be had. This is, indeed, a judicial matter, but of the most insignificant sort and verv near to the border line. It is a matter submitted to a judge, and he acts upon it. It is within the rule and the cases which we "have referred to, notably that of Kirnhcr v. Press Association, supra. If this was not judicial action it would be difficult to say what would be, short of a full trial of the case. Although the mo- tion was in chambers, still, under our practice, as all such motions and interlocutory orders are made in chambers, technically we can- not say that it was not in court. The statutes provide for such mo- tions to be made to the court, and the provisions about the court "in chambers" are simply to distinguish such proceedings from those of the Appellate Division sitting in banc. We therefore decide that the plea sets out a sufficient statement of a proceeding in the court.=^ As to the second question, to bring the plea within the rule of ^Accord: Beiser v. Scripps-McRac Publishing Co.. 113 Ky. 383 (1902). application before a Justice of the Peace for permission to make an affidavit for the purpose of instituting a prosecution held to be a judicial proceedmg, and this though the matter is not within the jurisdiction of the justice. Lee V. Union Publishing Co., 209 X. Y. 245 (1913). A mere complaint to the police is not a judicial proceeding. Jastrzembski V. Marxhausen, 120 ]\Iich. 677 (1899). and see McCabe v. Cauldwell, 18 Abb. Prac. 377 (N. Y. 1865), to the effect that a report of proceedings before a grand jury are not privileged. A report of what was done and said at an I I 14 METCALF Z: TIMES PUBLISHING CO. full and fair report, the plea is bad upon its face. It avers that what is published was only a part of the bill, and this part, so far as shown, was only the four paragraphs charging fraud. It does not aver that the defendants gave a full and fair report, even in sub- stance, of the allegations and facts set out in the bill. The plea rests upon the fact that, as the bill had been before a judge in a judicial proceeding, it was a justification in publishing a part of it. That is not enough. If a garbled report of a trial, which may re- sult in a vindication of one accused, is not privileged, much less should unfair extracts from pleadings be privileged. This doc- trine is strongly set forth in caustic words by Endlich, J., in Com. v. Costello, I Pa. Dist. Rep. 745-752 : 'T prefer to rely upon the propo- sition, which seems to me incontestable, that, w^hether the proceeding be in a court of record or not, finished or unfinished, ex parte or execution is not privileged, Sanford v. Bennett, 24 N. Y. 20 (1861). Where the proceedings last more than one day, they may be reported from day to day as they progress, Lewis v. Levy, E. B. & E. 537 (1858). But if the proceedings are finally concluded, a report which states only the accu- sation and evidence against the accused and does not mention his subsequent triumphant acquittal, is not privileged, Griniwade v. Dicks et ah, 2 Times L. R. 627 (1886). The report need not be verbatim, it is enough if It is substantially fair and accurate, Campbell, C. J. in Andrews v. Chapman, 3 C. & K. 286 (1853) ; Connor v. Standard Publishing Co., 183 Mass. 474 (1903) ; Boogher v. Knapp, 97 !\lo. 122 (1888); D'Auxy v. Star Co., 64 N. Y. S. 283 (1900), and see Willman v. Press Co., 49 App. Div. 35 (1900 N. Y.). Only the report of the trial is privileged, Stanley v. Webb, 6 N. Y. Super. Ct. (4 Sandf.) 21 (1850) ; Post Publishing Co. v. Moloney. 50 Ohio St. 71 (1893); Moore v. Leader Pub. Co., 8 Pa. S. C. 152 (1898), and unsworn statements bv bvstanders are no part of the proceedings, Lvnani v. Cowing, 6 L. R. Ir. 259' (1880) ; and see McGee v. Kinsey, 1 Phila. 326 (Pa. 1852). Com- ment may not be interspersed, if any is made, it should be kept separate, Campbell, C. J., in Andrews v. Chapman, supra. And the report should ex- press no opinion on the conduct, guilt or motives of the parties, witnesses, Court or counsel. Rex v. Fisher, 2 Camp. 563 (1811) ; Lewis v. Walter, 4 B. & Aid. 605 (1821); Cass v. New Olreans Times, 27 La. Ann. 214 (1875); Scripps V. Reillv, 38 Mkh. 10 (1878) ; and see Brown v. Providence Telegram, 25 R. I. 117 (1903), and Pfisfcr v. Sentinel Co., 108 Wis. 572 (1901) ; nor may it draw untrue inferences, Hayes v. Press Co., 127 Pa. St. 642 (1889), a state- ment of a judgment entered against plaintiff, published under the headline "Merchant Embarrassed." Nor may it impute perjury to a party or witness. Stiles V. Nokes, 7 East 493 (1806) ; Rosenberg v. Nesbitt, 14 N. Y. St. 248 (1888) ; Godshalk v. Metzgar,2Z W. N. C. 541 (Pa. 1889). Conspicuous head- lines are permissible if a fair index to the report, Lawyers Co-operative Pub- lishing Co. V. West Publishing Co., 32 App. Div. 585 (1898 N. Y.), but not if misleading, Hayes v. Press Co., supra, or if thev assume the guilt of a per- son accused. Dorr v. United States, 195 U. S. 138 (1904) ; Pittock v. O'Neill, 63 Pa. St. 253 (1869) ; and a fair and accurate report does not lose its privi- lege because accompanied by true information as to the parties involved, Johns V. Press Pub. Co., 61 N. Y. Super. Ct. 207 (1892). When the report stated that a certain fact "appeared in evidence" when it was merely asserted in a speech by counsel, it was held a matter for the jury to determine whether the report was a fair one, Ashmore v. Borthwick, 2 Times L. R. 113-209 (1885), and see Hutchinson v. Robinson, 21 N. S. Wales L. R. 130 (1900). The burden of proving the report to be fair and accurate is on the de- fendant, the burden of showing it was published maliciously is on the plaintiff. Lord Esher in Kimbcr v. Press Assn.. L. R. 1893, 1 Q. B. 65, p. 71. SWEET V. POST PUBLISHING CO. III5 Otherwise, no individual and no newspaper has the right to publish mere arbitrary selections consisting of those portions which impute crime or moral turpitude to, or cast ridicule or odium upon, the party to whom they refer, and commending themselves only by what is sometimes called spiciness, but is more properly denominated filth, or by reason of the fact that they tickle the morbid appetite of perverted human nature, which delights in the spectacle of another's disgrace."* Upon this ground, therefore, the demurrer to the plea is sus- tained, and the case will be remitted to the Common Pleas Division for further proceedings. SWEET V. POST PUBLISHING CO. Supreme Judicial Court of Massachusetts, 1913. 215 Mass. 450. Morton, J. This is an action of tort to recover damages for the publication of an alleged libel upon thfe plaintiff, an attorney at law, in the "Boston Post" of August 13, 1907, a newspaper published by the defendant. The article complained of purported to give the names of six persons who had been indicted by the Suffolk County grand jury for conspiracy to defraud persons unknown and circum- stances connected with their arrest. Amongst the names given as those of the persons indicted and arrested was that of the plaintiff. There was also a paragraph in the same article giving particulars as to the age, residence and profession of "Mr. Sweet," which was descriptive of the plaintiff in the particulars mentioned. The article was printed in what may be fairly described as a highly sensational manner. The declaration was in three counts. The first count was in statutory form. The second and third counts averred that the plaintiff was an attorney at law and that the alleged libel had greatly injured him in his reputation and had caused him great loss and damage in his profession. The answer admitted publication but de- nied any malice, and set up in substance that the article was pub- lished with reasonable care, on a privileged occasion, about another person whose name was similar to that of the plaintiff, but that in spite of such a care a mistake occurred and that on discovering the mistake the defendant promptly published a retraction. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to a matter of evidence and to the re- fusal of the presiding judge to give certain rulings asked for and to certain instructions that were given. ^Accord: Saunders v. Mills, 6 Bing. 213 (1829) : Lezvis v. Walter, 4 B. & Aid. 605 (1821) ; Pincro v. Goodlake, 15 L. T. 676 (1867), the whole or part of the evidence not given. But the summing up of the judge may always be published separately — it is a distinct part of the proceedings not affected by others — and is pre- sumably a fair summary, Milissich v. Llo\ds, 46 L. J. C. P. 404, 36 L. T. 423 (1877), McDongall v. Knight, L. R. 17 Q. B. Div. 636, L. R. 14 App. Cases 194 (1889). IIl6 SWEET Z'. POST PUBLISHING CO. It was stated at the trial by the plaintiff's attorney that no claim of express malice was made. The principal contention of the defendant is that the occasion was one of privilege or qualified privilege, and that it is not liable for the consequences of a mistake honestly made in a bona fide at- tempt, in the exercise of reasonable care and diligence, to get at the facts for publication. The investigation and report by the grand jury constituted a judicial proceeding, and, in the absence of express malice, a fair and correct report of it by the defendant in the newspaper published by it was privileged. Cotvley v. Pulsifer, 137 Mass. 392, 50- Am. Rep. 318. Kimball v. Post Publishing Co., 199 Mass. 248, 85 N. E. 103, 19 L. R. A. (N. S.) 862. The privilege attaching to such re- ports rests, however, upon a somewhat different ground from that on which privileged communications between private persons rest. In them the person making the communication has an interest to protect or a duty to perform, or his relation to the party to whom the communication is made is of a confidential nature, and the law holds that in such cases, if what is said or written is communicated in good faith, in the belief that it is true, and with no malevolent motive and for the purpose of protecting or promoting his interest, or in the performance of a duty incumbent upon him, social or legal or moral, and is justified or required by the nature of the relations existing between him and the person to whom the communication is made, and does not go beyond what is fairly warranted by the occasion, the communication is privileged. But no duty rests upon the publishers of a newspaper to report judicial proceedings, and their interest in such matters is only that which all the rest of the community has. It is for the interest of every one that crime should be detected and punished, and every one has the highest interest in whatever pertains to the proper administration of justice. It is upon these grounds that the reports of judicial proceedings fairly and correctly made are privileged. Cotvley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318. Kimball v. Post Publishing Co., 199 Mass. 248, 85 N. E. 103, 19 L. R. A. (N. S.) 862; Kimber v. The Press Asso- ciation, Ltd., (1893) I Q. B. 65. In order to be privileged such re- ports must be not only fair and impartial, but they also must be accurate. The same principle which requires that they should be fair and impartial requires that they should be accurate, at least in regard to all material matters. Kimber v. The Press Association, Ltd., supra. A distorted report cannot in the nature of things form the basis for a correct judgment. In a sense it may make no differ- ence to the public so far as the course of judicial proceedings is con- cerned, whether it is John Smith or John Jones who is arrested. But the administration of justice would be a farce or worse than a farce if the guilty escaped and the innocent were punished, or if the rights of parties were determined in a manner in which according to plain principles of justice they should not be. It is of the highest consequence, therefore, in order to enable the public to judge right- ly, that a report of judicial proceedings should be not only fair and SWEET V. POST PUBLISHING CO. III7 impartial but should be accurate also. If the report had to be accurate, then the defendant is not protected by the alleged privilege. For, admittedly, the plaintiff was the person indicted. Nor can the defendant avail itself of the doctrine laid down in Hanson v. Globe NcK's paper Co., 159 Mass. 293, 34 N. E. 462, 20 L. R. A. 856, that in order to render a defendant liable the libel must have been pub- lished of and concerning the plaintiff, and it is not to be deemed to have been so published if through mistake another person than the one intended is named. It was in effect conceded at the trial that the plaintiff was the person meant although the naming of him was due to a mistake, and the presiding judge so stated in his charge without any objection being made thereto. The defendant contends, however, that it is not liable and is entitled to avail itself of the privilege extended to fair, impartial and accurate reports of judicial proceedings if it exercised reason- able care and diligence in endeavoring to ascertain what the facts were before it published the report and the mistake occurred in spite of such care and diligence and was an honest mistake. It would seem that the defense was disposed of, so far at least as this commonwealth is concerned, by the case of Burt v. Advertiser Co., 154 Mass. 238, 28 N. E. I, 13 L. R. A. 97, where it was held that the privilege did not extend to statements made with reasonable cause to believe them to be true. As was said in that case, "A per- son publishes libelous matter at his peril." A newspaper as a pur- veyor of news and information of interest to the public, stands no differently in respect to liability from any other medium of com- munication. No doubt when a person acts in the performance of a duty or in regard to a matter where his interest is involved, he may justify by showing that he had reasonable and probable cause to believe what he published and that he acted bona fide and in the belief that what he published was true. In such a case he will be protected by the privilege which attaches to what he publishes from the consequences of an honest mistake. In the present case, how- ever great the interest of the public in the doings of the grand jury might have been, there was, as already observed, no duty legal or social or moral resting upon the defendant to publish a report of them, and it had no such legal interest to be protected or promoted as to justify it in the publication of what otherwise would be a libel. It does not follow that because the public had an interest in knowing what the grand jury did that it was the defendant's duty to inform them.^ It follows from what has been said that the evidence which was offered of the examination of the city directory by the night city editor "as bearing upon the care which we took in and about the publication of this article" was rightly excluded. Whether it would have been admissible on the question of damages it is not necessary to consider. The purpose for which it was offered was limited to that expressed above, and the ruling was based on its competency for that purpose. ^Accord: Shelly v. Dampman, 1 Pa. S. C. 115 (1896). IIl8 CARR r. HOOD. SECTION 4. The Right to Comment upon Matters of Public Interest. ("Fair Comment.") SIR JOHN CARR, KNIGHT, v. HOOD. Court of King's Bench, at Nisi Prius, 1808. Reported in note to Tabar* v. Tipper, 1 Campbell, 353. The plaintiff, who had written three books of travel, brought an action of libel against the defendant, who had published a parody on one of them. The parody ridiculed the book and also contained a rather gross caricature of the author, depicting him leaving Ireland with his wardrobe in a handkerchief and a servant laden with three immense volumes, one marked with the name of one of the plain- tiff's productions. He alleged that in consequence a publisher, who was in treaty for his fourth production, refused to publish it, to his damage £6oo.^ Plea, not guilty. Lord Ellenborough, as the trial was proceeding, intimated an opinion, that if the books published by the defendant only ridiculed the plaintiff as an author, the action could not be maintained. Garrow for the plaintiff allowed, that when his client came for- ward as an author, he subjected himself to the criticism of all who might be disposed to discuss the merits of his works ; but that criti- cism must be fair and liberal; its object ought to be to enlighten the public, and to guard them against the supposed bad tendency of a particular publication presented to them, not to wound the feelings and to ruin the prospects of an individual. If ridicule was employed, it should have some bounds. While a liberty was granted of analyz- ing literary productions, and pointing out their defects, still he must be considered as a libeller, whose only object was to hold up an author to the laughter and contempt of mankind. The object of the book published by the defendants clearly was, by means of immod- erate ridicule, to prevent the sale of the plaintiff's works, and en- tirely to destroy him as an author. In the late case of Tahart v. Tipper, his lordship had held that a publication by no means so offensive or prejudicial to the object of it, was libellous and action- able. Lord Ellenborough. In that case the defendant had falsely accused the plaintiff of publishing what he had never published.^ Here the supposed libel has only attacked those works of which Sir John Carr is the avowed author ; and one writer, in exposing the ^ The statement of facts alleged in the plaintiff's declaration is much condensed. ""Merivale v. Carson, L. R. 20 Q. B. D. 275 (1887). caustic criticism of play and author based on misstatement of its plot and characters; Thomas V. Bradbury, Agnew & Co., L. R. 1906, 2 K. B. 627, attack on a biographer CARR V. HOOD. 1 1 19 fnilies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary interests of the person ridiculed suffer, it is damnum absque injuria. Where is the liberty of the press, if an action can be maintained on such princi- ples? Perhaps the plaintiff's Tour Through Scotland is now un- saleable ; — but is he to be indemnified by receiving a compensation in damages from the person who may have opened the eyes of the public to the bad taste and inanity of his compositions? Who would have bought the works of Sir Robert Filmer after he had been re- futed by Mr. Locke? But shall it be said that he might have sus- tained an action for defamation against that great philosopher, who was laboring to enlighten and ameliorate mankind? We really must not cramp observations upon authors and their works. They should be liable to criticism, to exposure, and even to ridicule, if their com- position be ridiculous ; otherwise the first wTio writes a book on any subject will maintain a monopoly of sentiment and opinion respect- ing it. This would tend to the perpetuity of error. Reflection on personal character is another thing. Show me an attack on the moral character of this plaintiff, or any attack upon his character unconnected with his authorship,^ and I shall be as ready as any- Judge who ever sat here to protect him ; but I cannot hear of malice on account of turning his works into ridicule. The Attorney General having addressed the jury on behalf of the defendants — Lord Ellenbgrough said : Every man who publishes a book ' commits himself to the judgment of the public, and any one may I comment upon his performance.* If the commentator does not step aside from the work, or introduce fiction for the purpose of con- demnation, he exercises a fair and legitimate right. In the present case, had the party writing the criticism followed the plaintiff into domestic life for the purpose of slander, that would have been libellous : but no passage of this sort has been produced ; and even the caricature does not affect the plaintiff, except as the author of the book which is ridiculed. The works of this gentleman may be, for aught I know, very valuable ; but whatever their merits, others have a right to pass their judgment upon them — to censure them if for his misuse of "his abundant materials," which were in fact very s canty ; Belknap V. Ball, 83 Mich. 583 (1890), candidate for congress erroneously reported as having made a speech showing ignorance alike of grammar and pubHc questions; Stile v. Nokes, 7 East 493 (1806); Risk Allah Bey v. Whitehurst, 18 L. T. (N. S.) 615 (1868) ; Pxircell v. Sowler, L. R. 2 C. P. D. 215 (1877), comment upon garbled and distorted reports, much of which was pure invention, of judicial proceedings and meetings of public boards, etc. ^Compare Lord Tenterden, C. J. in MacLeod v. Wakley, 3 C. & P. 311 (1828) : and Dunne v. Anderson. 3 Bing. 88 (1825). * But criticism of private letters or privately circulated productions of public men. authors, artists or scientists is not with the protection of fair comment, Collins, M. R., Thomas v. Bradbury, Agnew & Co., 1906, 2 K. B. 627. and Pollock, C. B., Gathercole v. Mialj, 15 M. & W. p. 334. Nor is 'criticism of the private acts of a private person, Snyder v. Fulton, 34 Md. 128 (1870). II20 CARR V. HOOD. they be censurable, and to turn them into ridicule if they be ridic- ulous.^ The critic does a great service to the public, who writes down any vapid or useless publication such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash. I speak of fair and candid criticism ; and this every one has a right to publish, although the author may suffer a loss from it. Such a loss the law does not consider as an injury because it is a loss which the party ought to sustain. It is in short the loss of fame and profits to which he was never entitled. ** Nothing- can be conceived more ^Accord: Strauss v. Frauds. 4 F. & F. 939, 1107 (1866); Dcvereux v. Clarke, L. R. 1891, 2 Q. B. 582; Thomas v. Bradbury, Agnew & Co., L. R. 1906, 2 K. B. 627; Dowling v. Livingstone, 108 Mich. 321 (1896) ; McDonald V. Sun Publishing Co., Ill App. Div. (N. Y.) 467 (1906), semble ; Triggs v. Sun Publishing Co., 179 N. Y. 144 (1904), semble, criticisms of literary' pro- ductions; Merivale v. Carson, L. R. 20 Q. B. D. 275 (1887); McQuire v. Western Morning News, L. R. 1903, 2 K. B. 100; Cherry v. Des Moines Leader, 114 Iowa 298 (1901); Fry v. Bennett, 5 Sandf. 54 (N. Y. 1851); DibdiK v. Swan, 1 Esp. 28 (1792); Gott v. Pulsifer, 122 Mass. 235 (1877), criticisms of plays, acting, theatrical management and songs publiclj^ sung, or other public exhibitions, Soaue v. Knight, M. & M. 74 (1827) ; Whistler v. Ruskin, London Times, Nov. 27 and 28, 1878, cited in McDonald v. Sun Publishing Co., Ill App. Div. (N. Y.) 467 (1906) ; architecture and painting, Kelly V. Sherlock, L. R. 1 Q. B. 686 (1866), Klos v. Zahorik. 113 Iowa 161 (1901), sermons publicly preached, but see Gathercole v. Miall, IS i\l. & W. 319 (1846) ; Hunter v. Sharf^e, 4 F. & F. 983 (1866) ; Henwood v. Harrison. L. R. 7 C. P. 606 (1872) ; Dakhyl v. Lahouchere, L. R. 1908, 2 K. B. 325, n: scientific or medical discoveries. Every scheme, in which the public are asked to participate or patronize, every trade or profession openly soliciting public patronage, every private en- terprise which serves public needs or from its size affects the public, is regarded as open to fair criticism, Williams v. Chicago Herald, 46 111. App. 655 (1893) ; Inland Printer Co. v. Economical, etc., Co.. 99 111. App. 8 (1901) : Crane v. Waters, 10 Fed. 619 (1882), construction, financial and operative management of a railroad; Archer v. Ritchie &■ Co., 18 Rettie 719 (Sc. Ct. Sess. 1891), management of the Order of Templars; South Hetton Coal Co. v. North Eastern News Assn., L. R. 1894, 1 Q. B. 133, sanitary condition of a village and the houses provided therein for two thousand work people. As showing the tendency to widen the field of permissible criticism, com- pare with the last case Gathercole v. Miall, 15 M. & W. 319. In Haynes v. Clinton Printing Co., 169 Mass. 512 (1897), if is doubted whether the guilt or innocence of one arrested for a crime is matter for public comment. ' See the very acute criticism of Spencer Bower, K. C, in Actionable Defamation, pp. 380-384, especially p. 383. 'In Eraser v. Berkeley, 7 C. '& P. 621 (1836), it was held to be a libel and not "fair comment" to call an author "liar," "coward" and "pimp" ; Triggs v. Sun Publishing Co., 179 N. Y. 144 (1904), statements in regard to the domestic life of a university professor, made in a criticism of a lec- ture publicly given by him. So the private character and morals of an artist or actor, except as exhibited in or affecting the character or quality of his public productions, is not a proper subject of "fair comment," Gathercole v. Miall, 15 M. & W. 319 (1846), p. 338; Duplany v. Davis, 3 T. L. R. 184 (1886). The private acts of a public officer or candidate for office is a subject of public interest and as such may be fairly commented upon, if, but only if, they tend to show the presence or absence of some trait of character in- compatible with or necessary to a proper discharge of his duties, Sevmour v. Buttcr7vorth. 3 F. & F. 372 (18621: Bruce v. Leisk. 19 Rettie 482" (Sc. Ct. of Sessions 1892), semble, with which compare Alderson B. in Gathercole CAMPBELL V. SPOTTISWOODE. 1 121 threatening to the liberty of the press than the species of action be- fore the Court. We ought to resist an attempt against free and hberal criticism at the threshold. The Chief Justice concluded by directing the jury, that if the writer of the publication complained of had not travelled out of the work he criticised for the purpose of slander, the action \vould not lie ; but if they could discover in it any thing personally slanderous against the plaintiff, unconnected with \ the works he had given to the public," in that case he had a good cause of action, and they would award him damages accordingly. Verdict for the defendants. CAMPBELL V. SPOTTISWOODE. Court of Queen's Bench, 1863. 3 B^t & Smith, 769. CocKBURN, C. J.^ I am of opinion that there ought to be no rule. The article on which this action is brought is undoubtedly libellous. It imputes to the plaintiff that, in putting forth to the public the sacred cause of the dissemination of religious truth among the heathen, he was acting as an impostor, and that his purpose was to put money into his own pocket by obtaining contributions to his newspaper. The article also charges that, in furtherance of that base and sordid purpose, he published in his newspaper the name of a fictitious person as the authority for his statements, and still fur- ther that, with a view to induce persons to contribute towards his professed cause, he published a fictitious list. These are serious imputations upon the plaintiff's moral as well as public character. It is said, on behalf of the defendant, that, as the plaintiff ad- dressed himself to the public in a matter, not only of public, but of universal interest, his conduct in that matter was open to public criticism, and I entirely concur in that proposition. If the pro- posed scheme was-jlefective, or utterly disproportionate to the re- sult aimed at, it might be assailed with hostile criticism. But then a line must be drawn between criticism upon public conduct and the imputation of motives by^which that conduct may be supposed to be actuated ; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sor- did, and wicked motives, unless there is so much ground for the im- putation that a jury shall find, not only that he had an honest belief in the truth of his statements, but that his belief was not without foundation. In the present case, the charges made against the plaintiff were unquestionably without foundation. It may be that, in addition to the motive of religious zeal, the plaintiff was not wholly insensible to the collateral object of promoting the circulation of his newspaper. V. Miall, 15 M. & W. 319 (1846), and Broadhent v. Small, 2 Vict. L. R. (Law) 121 (1876), Wood V. Boyle, \77 Pa. St. 620 (1896). ^ The concurring opinion of Crompton J. and part of that of Mellor J. are omitted. 1 122 CAMPBELL V. SPOTTISWOODE. but there was no evidence that he had resorted to false devices to induce persons to contribute to his scheme. That being so, Mr. Bovill is obHged to say that, because the writer of this article had a bona fide belief that the statements he made were true, he was privileged. I cannot assent to that doctrine. It was competent to the writer to have attacked the plaintiff's scheme ; and perhaps he might have suggested, that the effect of the subscriptions wliich the plaintiff was asking the public to contribute would be only to put money into his pocket.^ But to say that he was actuated only by the desire of putting money into his pocket, and that he resorted to fraudulent expedients for that purpose, is charging him with dis- honesty ; and that is going farther than the law allows. It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men ; and public affairs could not be conducted by men of honor with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honor and character, and made without any foundation. I think the fair position in which the law may be set- tled is this : that where the public conduct of a public man is open \ to animadversion and the writer who is commenting upon it makes -~ .imputations jQ.n.. his motives which arise fairly and legitimately out of his conduct, so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable.-' But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest.* The cases cited do not warrant us in going that length. In Paris V. Levy, 2 F, & F. 71, there may have been an honest and well- founded belief that the man who published the handbill which was commented upon, could only have had a bad motive in publishing it, and if the jury were of that opinion, the writer who attacked him in the public press would be protected. We cannot go farther than that. ''But see Boal v. Scottish Catholic Printing Co., 1907 Scottish Ct. of Session Rep. 1120, where a query, as to what guarantee there was that money subscribed for a home would not go to the private profit of those soliciting the subscriptions, was held to go beyond fair comment. ^ Compare the language of the same judge in Morrison v. Belcher, 3 F & F. 614 (1863) ; Hedley v. Barlow, 4 F. & F. 224 (1865) ; Risk Allah Bey v. Whiiehurst, 18 L. T. (N. S.) 615 (1868), and Reg. v. Tan field, 42 J. P. 423 (1878). *See Pallas, C. B. in Lefroy v. Burnside, 4 L. R. Jr. 556 (1879), p. 567, to the effect that no reasonable inference of guilt can be drawn from the fact that "a man having the means of committing a crime and the crime being in fact committed," and Havnes v. Clinton Printing Co., 169 Mass. 512 (1897). and Commercial Publishing Co. v. Smith, 149 Fed. 704 (C. C. A. 6th Circ. 1907), in which the plaintiff's guilt was insinuated or assumed upon insufficient grounds. CAMPBELL V. SPOTTISWOODE. II23 Blackburn, J. I also think that the law governing this case is so clearly settled that we ought not to grant a rule. It is important to bear in mind that the question is, not whether the publication is privileged, but whether it is a libel. The word "privilege" is often used loosely, and in a popular sense, when applied to matters which are not, properly speaking, privileged. But, for the present pur- pose, the meaning of the word is that a person stands in such a relation to the facts of the case that he is justified in saying or writ- ing what would be slanderous or libellous in any one else. For in- staiTce, a master giving a character of a servant stands in a privileged relation. In these cases no action lies unless there is proof of ex- press malice. If it could be shown that the editor or publisher of a newspaper stands in a privileged position, it would be necessary to prove actual malice. But no authority has been cited for that proposition ; and I take it to be certain tha^ he has only the general right which belongs to the public to comment upon public matters, for example, the acts of a minister of state ; or, according to modern authorities somewhat extending the doctrine, where a person has done or published anything which may fairly be said to invite com- ment, as in the case of a handbill or advertisement : Paris v. Levy, 2 F. & F. 71. In such cases every one has a right to make fair and proper comment ; and, so long as it is within that limit, it is no libel. The question of libel or no libel, at least since Fox's Act (32 G. 3, C. 60), is for the jury ; and in the present case, as the article pub- lished by the defendant obviously imputed base and sordid motives to the plaintiff, that question depended upon another — whether the article exceeded the limits of a fair and proper comment on the plaintiff's prospectus ; and this last question was therefore rightly left to the jury. Then j\Ir. Bovill asked that a further question should be left to them, viz : whether the writer of the article honestly believed that it was true ; and the jury have found that he did. We have to say whether that prevents an action being maintained. I think not. Bona fide belief in the truth of what is written is no de- fense to an action ; it may mitigate the amount, but it cannot disen- title the plaintiff" to damages. Moreover that honest belief may be an ingredient to be taken into consideration by the jury in deter- mining whether the publication is a libel, that is, whether it exceeds the limits of a fair and proper comment ; but it cannot in itself pre- vent the matter being libellous. Mellor, J. I am of the same opinion. I should be unwilling to limit the right of a writer in a newspaper, or any other individual, to canvass any scheme, even though it be a scheme of public benevo- lence. But giving full latitude to fair comment, so soon as a writer imputes that the person proposing the scheme is doing it from a base and sordid motive, and is putting forth a list of fictitious subscribers, 'n order to delude others to subscribe, it cannot be said to be within the limits of fair criticism. If comment is beyond the limits of fair criticism it becomes a 1 124 NONPAREIL CORK MFG. CO. V. KEASBEY &C. CO, libel. And I agree that the question in this case is, libel or no libel. If the words were used upon a justifiable occasion, no action could be maintained ; for the interest and exigencies of society require that there should be free communication between parties who have a duty, either moral or legal, to discharge toward each other, as in the common case of a master giving the character of a servant, in which defamatory words are privileged unless proved to be false and malicious. But in the present case there was no legal or moral duty on the writer to make these imputations upon the plaintiff. NONPAREIL CORK MANUFACTURING CO v. KEASBEY & MATTISON CO. Circuit Court, E. D. Pennsylvania, 1901. 108 Federal Reporter 721. Action for libel. On demurrer to plaintiff's statement. Dallas, Circuit Judge. ^ It is alleged that the defendants pub- lished a circular letter containing the following : "Cork has been recently exploited iti various cities of the United States as a steam pipe and boiler covering. When it was first presented for our consideration, we expressed the opinion that, it being organic, it would carbonize and burn, as hair felt does ; that under the most favorable conditions it carried with it an ele- ment of danger ; and that it never could become a permanent stand- ard material for the covering of heated surfaces. We refer you herein, without further comment, to localities and people that have had practical experience with cork covering, and, from the nature of the reports we have concerning the same, feel warranted in con- tinuing to believe that our opinion, as above stated, as to cork's value for covering steam pipes and boilers, was correct." As to this matter the innuendo is : "Meaning and intending thereby that the covering so manufac- tured and sold by the plaintiff was inferior in quality and character to other coverings, and especially to the coverings manufactured and sold by the defendants, and that it was unfitted for the purpose for which it was sold, and that the use thereof was dangerous." The action is not strictly an action of libel, but a special action on the case for disparaging the plaintiff's goods ; and, with refer- ence to this view of it, I deem it necessary only to repeat what was said by Lord Denman in Evans v. Harloiv, 5 Q. B. 624 : "A tradesman who offers goods for sale exposes himself to ob- servations of this kind, and it is not by advertising them to be false, scandalous, and malicious and defamatory that the plaintiff can found a charge of libel upon them. To decide so would open a very ^ Only so much of the opinion is given as relates to the disparaging im- putations upon the plaintiffs' wares. CLIFTON" V. LANGE. 1 1 25 wide door to litigation, and might expose every man who said his goods were better than another's to the risk of an action. "- From the whole declaration it plainly appears that what the defendants are charged with is really but the expression of an un- favorable opinion of the goods of its competitor. But such expres- sions are not uncommon among rivals in trade, and their correct- ness in each instance is for determination by those whose custom is sought, and not by the courts. Judgment for defendant. CLIFTON V. LANGE. Supreme Court of Iowa, 1899. lt)8 Iowa, 472. Appeal from district court. Pocahontas county ; W. B. Quar- ton, Judge. Action at law to recover damages caused by the publication by the defendant, in a weekly newspaper, of the following, of and con- cerning the plaintiff: "Modern Justice (?). Should two men hold up a third man on the streets of Laurens in broad daylight, and rob him of $65 to $75, the robbers would be sure to serve a term in the penitentiary, and the authorities might find it difficult to prevent them from being lynched. Yet modern justice, in the disguise of law, committed a crime equally as great a few days ago, and the methods employed and tactics plied were no more dishonorable than highway robbery. The parties who did the holding up were J. S. Clifton, a justice of the peace, and J. W. Convy, a constable, and the party they attempted to rob was Chas. Snider ; and they proba- bly would have succeeded, had not the matter become public, and outsiders came to his rescue in time to appeal to a higher court, where snap judgments are not engineered by the aid of the court, and save his home from being sold on a judgment rendered by two vultures sitting ready to pounce upon and divide the spoils. Did J. S. Clifton do as he would like to be done by if he was in Snider's place? Did he give both sides justice? Was there any honorable act done by the justice from start to finish? If so, what? Could the James gang have done worse, had they presided in Clifton's place? Take down these signs of 'Justice,' and print in large let- ^ In Evans v. Harlow, supra, the defendant's circular stated that "those who have already adopted (the plaintiff's) lubricators, . . . will find that the tallow is wasted instead of being effectually employed." See Christiancy, J., in Weiss v. Whittemorc, 28 Mich. 366 (1873), "both the plaintiff and the defendant were at entire liberty to recommend that for which they were respectively the agents, as superior to the other ; to point out all its ad- vantages, as well as all the defects of the other, so long as they con- fined themselves to their own views, and such proofs as they were able to offer, and a reasonable latitude should, of course, be allowed for each to puff his own." 1 1 26 CLIFTON V. LAXGE, ters, and hang there instead, the more appropriate sign of 'Modern Crucifixion.' Honorable justices and constables are essential and necessary to every community, but when they become hawks and vultures, perched in dark corners waiting for some weakling to fall by the wayside, and pounce upon them and devour them because they are weak, poor and helpless, then, the sooner they are exposed and receive deserved punishment, the better it will be. Now, right here is where the dishonorable act of the court comes in, and where the gross and dishonest prejudice of J. S. Clifton, the justice of the peace, helped in the rotten and infernal steal. He knew that Paige was Snider's attorney ; he knew that, if Snider was able to conduct the case himself, he would not have hired an attorney, and as Paige was the first attorney to appear in the case and had only left the room to get authorities to cite, why did he not wait until Paige got back? Why did he not give the defendant one-tenth of the cour- tesy he had extended to the plaintiff by running around town and apprising him that the case would be contested on the part of the defendant ? Whv did he not do that, we ask ? He shows bv his act that he was a party to the theft and dishonorable act." Verdict and judgment were rendered in favor of the plaintiff for $200. Defendant appeals. GiVEN^ J. In view of the question involved, we regret that the case is submitted without argument for appellee. The publication is conceded to be libelous and actionable per se. By the first division of the answer, we have the single issue whether it was maliciously published, and it was upon this issue that the case was submitted to the jury. The defendant, "for a second and complete defense.... states that every fact charged"' in the publication to have been done by plaintiff "was the truth, and in fact done as therein charged." Such a plea must be as broad as the charge made. This is not so. It merely pleads as true what are stated to have been the acts of the plaintiff, and does not plead the truth of the libelous charges. To plead that part of the charge is true is not sufiicient ; the entire libelous charge must be alleged to be true ; and, if this was the de- fendant's purpose, he should have pleaded it in unmistakable lan- guage. In the fifth division of the answer it is alleged, as a complete defense, that said publication is privileged. The law is well settled that a fair and true publication, without malice, of a prejudicial pro- ceeding, or of anything stated as part thereof, or "a criticism of an official act of a public officer, made without malice, and not contain- ing any attack upon his private character," is privileged. Townsh. Sland. & L., § 208, and note ; McBee v. Fulton, 47 Md. 403 : McAllis- ter v. Press Co., (Alich.) 43 X. W. 431 ; 13 Am. & Eng. Enc. Law, 419. The publication admitted to have been made is not privileged, for the reason that it contains an attack upon the private character of the plaintiff, and it is not, therefore, a privileged publication ; and MC DOXALD r. SUX PRINTING &C. CO. * 112/ there was no error in sustaining the demurrer to the fifth division of the answer.^ McDonald v. the sun printing & publishing co. Supreme Court of New York, 1904. 45 .V. Y. Misc. Rep. 441. Gaynor, J. The alleged defamatory article gives the following facts : The plaintiff was employed in the Binrati of Education of the national government at W'ashington for several years under the .h tle of "S pegjalLst in Education as a Preventative of Pauperism and _Cn me/' He published a personal advertisement in newspapers that a gentleman of high social and university position desired corre- spondence with young educated women of high social and financial position, and that they must give detailed accounts of their lives. He gave no name, but a lock-box in the Post Office at Washington, D. C., as his address. The plaintiff corresponded with the women who answered (which his evidence shows to have been a large num- ber), and got them to \\'Tite all he could concerning themselves. He also made appointments with some of them (he testified forty to fifty) in streets and public places, and in some cases in their homes, or other private houses, and met them and talked with them. He then wTOte a book with the title "Girls Who Answer Personals," out of the materials he had thus collected, and sold it for fifty cents a copy through his lock-box. On the title page he put "Dr." before his name, but he was not a doctor of any kind. The defendant put the book in evidence. It contains many of _ ^^ Accord: Bearce v. Bass, 88 JNIaine 521 (1896), semble, in which a criticism of the bad construction of a building was held fair comment because it attacked only the work and not the personal character of the contractor; Bee Publishing Co. v. Shields, 68 Nebr. 750 (1903), suggestion that a district attorney's failure to prosecute gamblers was due to bribery; ]V afford v. Meeks, 129 Ala. 349 (1900), in which it is intimated that to char- acterize a public officer's official acts, in terms usually reserved for accusa- tions of crime, is not fair comment; compare Speight v. S\me, 21 Vict. L. R. (Law) 672 (1895) ; and see Siveeney v. Baker, 13 W. Va. "l58 (1878), Note 3 to Coloiian v. MacLcnuan, ante. In many of the cases where it is stated, in various forms, that, while the fitness of a candidate or officer for the office as shown by his official or even private conduct may be discussed, neither improper motives nor criminality may be imputed to him. there was an untrue statement of his acts or con- duct, or a general insinuation against or characterization of his con- duct, in form perhaps comment, but without any, or, if any, an incomplete statement of the acts and conduct so characterized. People v. Fuller 238 111. 116 (1909); Russell v. Washington Post, 31 D. C. App. 277 (1908); Dauphiny v. Buhne. 153 Cal. 7i7 (1908) ; and Tanner v. Embree, 9 Cal. App. 481 (1908), in which charges of gross official misconduct were called by the court attacks on the plaintiff's "personal character"; Mattice v. Wilcox 147 N. Y. 624 (1895): Upton v. Hume, 24 Ore. 420 (1893), and see cases cited in Coleman v. MacLennan. ante, — , and notes thereto, and 23 Harv. L. R. 432, n. 2, and 433, n. 1 and 2. . 1 128 ■ MCDONALD Z'. SUN TRIXTING &C. CO. the letters of the women who wrote to the plaintiff. It also gives the particulars of the personal interviews he had with some of them, including in some cases their physical appearance, manner and tem- perament. The rest of the book is made up of general matter and comment pertaining to the sexual instinct and the relation of the sexes. There is no fact in dispute. This brings the case under the head that if the facts be undisputed, and different inferences may , not be drawn from them, it is for the court to direct a verdict. I sent it to the jury on the question whether the inferences of fact drawn and expressed by the defendant, and upon which the charge of defamation depends, were reasonably possible and therefore per- missible. Those inferences are, in substance, that the conduct of the plaintiff' and the book were a "scandal,"' "shameless," and that the plaintiff was a "prurient." Around these words cling all that was claimed to be or deemed defamatory on the trial. The occasion of the defendant's criticism was that plaintiff' was working to get Congress to pass a bill which he had prepared to establish in the Department of Justice a "laboratory for the study of the abnormal classes," with the object of having himself em- ployed by the government to run it, he having been dropped from the Bureau of Education ; all of which is revealed in the article sued upon. The plaintiff claimed in the witness box on cross-examination that he collected the material, and wrote and circulated the book, from pure and worthy motives, solely in the interest of the study and development of the science of criminology,^ for the benefit of the human race. He said that his object was to study women who arc at the border line between chastity and looseness, with a view to the future help and preservation of such women. The plaintiff' was holding his said position in the Bureau of Education when he did all of these things, but he did not do them for the government, or get permission therefor of those over him. or file the material he collected with the bureau in which he was employed, but used it for his own profit in the way already stated. Though the plaintiff testified on cross-examination in Inspect of his motives and object, I did not and do not deem the evidence relevant or competent. On the contrary, the question is not wheth- er he can now in the witness box convince a jury of the purity of his motives and object, but what inferences were and are permissible to the defendant or any one else in discussing his book and his con- duct, and his personality as revealed thereby. It may be that the plaintiff' is even able by his persuasive powers to now convince the defendant that in drawing the inferences from his book which it did unaided by his presence and explanation, it was mistaken, but that would be wholly immaterial. The question is, did his book and con- duct justify such inferences? MCDONALD Z'. SUN PRINTING &C. CO. II29 Any one who publishes a book, or does any pubhc act, chal- enges djscussion and criticism. Every one has the right to indulge in such discussion and criticism freely and fully, and to draw infer- ences and express opinions on the facts in the same w^ay. That his opinions and inferences are far fetched, high strung or severely chaste or moral, or contrary to other inferences or opinions that seem more reasonable, does not matter so long as there be a basis for them. The opinion of the smallest minority often becomes the opinion of a majority or of all. The prevailing opinion of one gen- eration often becomes such an absurdity to ^e next, that the wonder then is how any one ever entertained it, as John Stuart Mill says. It is for this reason that the law gives full latitude in the expression of opinions on things of general concern. So long as such discus- sion and criticism keep within matters of reasonable opinion on the facts, they cannot be defamatory. If, on the contrary, the personal character of the individual be touched by false statements, or by asperations with no facts to rest upon, the writer is on the common ground of defamation. Criticism is no exception in the general law of defamation, though some dicta would lead one to suppose that it is. A critic is no more permitted to make false aspersions or statements of fact which are defamatory than any one else. Criticism is an expression of opinion on facts from w-hich differences of opinion may reason- ably arise, and if it sticks to that, it is not defamatory, no matter though it be severe, hostile, rough, caustic, bitter, sarcastic or satir- ical, for these are the weapons of criticism ;^ and no matter how different the opinion may be to the opinion of others, or of a major- ity, however great, provided it derives its color from the facts. In the present case the plaintiff is charged wath pruriency, scandal and shamelessness. This affects his personal character. If his book and his conduct lay him open to the charge, the defendant did not go outside the realm of criticism, and is not liable. If they do not, then the defendant is liable. It is not always easy to determine whether the question pre- ^ Compare Merivale v. Carson, L. R. 20 Q. B. D. 275 (1887), "Every latitude must be given to opinion and prejudice. Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However ■ wrong the opinion expressed may be in point of truth, or however preju- diced the writer, it may still be within the prescribed limit. The question f which the jury must consider is this — would any fair man. however preju- . « diced he may be, however exaggerated and obstinate his views, have said that which this criticism has said of the work criticized" — Lord Esher, pp. 280-281. "It must be assumed that a man is entitled to entertain any opinion ' he pleases, however wrong, exaggerated or violent it may be. In the case of literary criticism it is not easy to conceive what would be outside of that region of fair criticism, unless the writer went out of his way to make a ■'' personal attack on the author" — Bowen, L. J., pp. 283-284. See Triggs v. Sun Printing and Publishing Co., 179 N. Y. 144 (1904), where the critic was held to have gone out of his way to attack the author's personal char- acteristics. 1 130 MCDONALD V. SUX PRINTING &C. CO. sented, /. c, the question whether the inference drawn and expressed by the defendant is a reasonably possible one, and therefore per- missible, is one of law or one of fact, i. e., a question to be decided by the court, or one to be decided by the jury. Cases could be imagined in which the question would be one of law. If, for in- stance, one should write advocating murder, it would be for the court to rule that the inference that he was a murderous character was permissible. Murder is an unmistakably defined crime, and there can be no doubt about what it is. But what of pruriency ? It is an elastic term. Matter and con- duct which some people deem prurient other good people deem chaste. There is no fixed standard of pruriency. It is largely a matter of education and taste. And the same is true in respect of scandal and shamelessness. Nevertheless, one may do or say or write things that are beyond question scandalous, shameless and prurient, and that would be a case presenting a question of law and not of fact. But I am fully convinced that the present is not such a case. I have looked over the book carefully, and considered the plaintiff's conduct, and I think the question was for the jury, i. e., it was for them to say whether the inferences drawn by the defendants from the facts were reasonably possible and therefore permissible. If the infer- ences be false, /. e., such as the facts will not bear at all, then they are defamatory. It is not enough in a given case that the jury dis- agree with the inferences.^ The question is whether they may be reasonably drawn, as matter of argument, although other and oppo- site and, in the opinion of many or most people, better inferences may also be drawn. The case of Whistler v. Riiskin serves as an illustration. There the greatest English art critic of the last century wrote of one who bids fair to rank as the greatest English artist of the last century : **For j\Ir. Whistler's own sake, no less than for the gallery of the \ ^ u pM4xliaS£i:^_§ir Coutts Lindsay ought not to have admitted works into V the gallery_in which the ill-educated conceit of the artist so nearly approached The^^aspecFBCwiliul- ii»posture. I have seen and heard iftttcirTjf' cocE5i3tI«ftp«4ence_b.ef p r e now, but never expected to hear a coxcomb ask_20Q_gujxieiLS for flinging a pot of paint in the public's , face." The words "wilful imposture" were held by the jury (for it ^was left to the jury) to be a false aspersion or statement of fact involving the personal integrity of the plaintifif, and not an expres- sion of opinion concerning his art or him as an artist. An inference of imposture was held not permissible by the jury. It was not taken to itself as a question of law by the court, although it would seem that the inference to be drawn from the picture and the fact of its v^sale by the plaintiff for a work of his art was closer to being a . question of law than is the question here ; for whether it was a work of art instead of a daub was necessarily a matter of opinion, and the \ -'Accord: McQutre V. Western Morning News, L. R. 1903, 2 K. B. 100 HUNT v. STAR NEWSPAPER CO. II3I artist was entitled to his opinion, and to rate the vaaie of his work on his opinion. The motion to direct a verdict, and also the motion for a new trial, are denied.^ < HUNT V. STAR NEWSPAPER CO., LTD. Court of Appeal, 1908. Law Reports, 1908, 2 iting's Bench Div. 309. Cozens-Hardy, M. R. This is an application for a new trial on the ground of misdirection. The action was for libel, based upon two articles in the Star and the Morning Leader newspapers. The articles complained of related to the plaintiff, who was deputy re- turning officer at the Caxton Hall polling station at the election for the London County Council in March, 1907. I do not think it neces- sary to read the articles in full. The article in the Star is headed "In Westminster. Serious Allegations made by Progressive Candi- dates ;" and the article in the Morning Leader is headed, "Obstruct- ing Progressives. Extraordinary Action by Westminster Polling Official." Each article stated certain alleged facts with reference to what took place in the Caxton Hall and, as the plaintiff asserts, charged the plaintiff with not having acted honestly in the discharge of his statutory duties as deputy returning officer,_and as having been influenced by political bias with intent to prejudice the Pro- gressive candidates. The defendants pleaded, as a separate defense, that in so far as the said words consisted of comment the same were fair and bona fide comment upon a matter of public interest and importance. The learned judge dealt with the plea of fair com- ment as follows : 'Tf a newspaper publishes exactly what took place \\'ith no comment whatever, they would be justified in so doing as a matter of public interest, but if they add to that comment of their own, then the question is whether that comment was bona fide and fair comment, or whether it was comment which tended, as alleged here, to charge the plaintiff with improper conduct." And at the end of the summing up he says this: "If you come to the conclusion that they are libels and are such as would have a tendency to preju- 'See McDonald v. Sun Publishing Co., Ill App. Div. (N. Y._) 467 (1906), two later attacks by the same paper on tlie same plaintiff as m the principal case, the latter of them insinuating that his researches were merely a pretext for gratifying his indecent curiosity and lubricity, and Triggs V. Sun Printing and Publishing Co., 179 N. Y. 144 (1904), in all of which the articles were held to go clearly beyond the limit of fair comment. In the last case it was said that "the critic . . . can not allow himself to run into reckless and unfair attacks merely for the purpose of exercising his power of denunciation ;" compare the statement of Collins, M. R. in Mc- Quire v. Western Morning News, L. R. 1903, 2 K. B. 100, that "Criticism can not be used as a cloak for mere invective." A charge of plagiarism is undoubtedly an attack on the character of an author as author, and was held actionable in Dibdin v. Swan, 1 Esp. 28 (1792), and see McLellan v. Dufton, London Times, May 23 (1906), and Bower, Actionable Defamation, Appendix XII, sec. 6. I 132 HUNT V. STAR XEWSPAPER CO. dice the plaintiff in his position of town clerk of Westminster and of presiding officer and deputy returning officer of the county council elections, then you must give him your verdict. Then the next ques- tion is, whether the defense is made out that the accounts given in these two articles of what happened at the Caxton Hall on this oc- casion were true in substance, and in fact, as far as they related to the details of what took place at the Caxton Hall. Then, as far as comment is concerned, you will consider whether that comment is fair and bona fide comment, or whether it is for the purpose of sug- gesting, as is alleged by the plaintiff, that he was acting in an im- proper way." I regret that no separate questions werci left to the jury. A general verdict was found in favor of the plaintiff with £800 damages. Now it seems to me that the learned judge did not properly direct the jury as to the meaning and effect of the plea of fair comment. The words wdiich I have read seem to indicate that that cannot be fair comment which tends to prejudice or to impute blame to the plaintiff. In my opinion that is not the law. I cannot do better than adopt the language of Kennedy, ]., in Joynt v. Cycle Trade Pnblishing Co., (1904) 2 K. B. 292, "The comment must. . . not misstate facts, because a comment cannot be fair which is built upon facts which are not truly stated, and, further, it must not convey imputations of an evil sort, except so far as the facts, truly stated, warrant the imputation." And in Dakliyl v. Lahoucherc, Lord Atkinson said : "A personal attack may form part of a fair comment upon given facts truly stated if it be w^arranted by those facts — in other words, in my view, if it be a reasonable inference from those facts. Whether the personal attack in any given case can reasonably be inferred from the truly stated facts upon which it purports to be a comment is a matter of law for the determina- tion of the judge before whom the case is tried, but if he should rule that this inference is capable of being reasonably drawn, it is for the jury to determine whether in that particular case it ought to be drawn." In substance it seems to me that the issue of fair com- ment was not left to the jury. It is highly probable that the jury thought that the facts were not truly stated, in which case the ver- dict for the plaintiff would be plainly justified; but it is also possible that they thought that, although the facts were truly stated, they must, as the learned judge told them, find for the plaintiff, if in the view of the jury the articles in question imputed improper conduct to the plaintiff. In my opinion the defendants are entitled to have a new trial in which both the issues raised by them may be pre- sented to a jury with a proper and adequate direction. There must be an order for a new trial, but under the circumstances I think the costs of this appeal, as w^ell as of the first trial, should abide the re- sult of the second trial. Fletcher Moulton, L. J. With the greater part of the argu- ment that was addressed to us by counsel for the appellants in this case I thoroughly disagree. That argument was based mainly upon an application of the language of the judgment in Merivale v. Car- son, 20 Q. B. D. 275, at p. 231, to the case of the imputation or cor- HUNT V. STAR NEWSPAPER CO. II33 rupt or disgraceful motives to an individual, and the contention was that, if in his comment upon facts a writer attributed such motives to an individual, such language was covered by the plea of fair comment unless the views it expressed could not be held by any fair man, however prejudiced he might be and however exaggerated and obstinate his views. In my opinion this is a complete misappre- hension of the law as laid down by that case, and is absolutely op- posed to what is now settled law with regard tb fair comment. The case of Merivale v. Carson, supra, related to a criticism upon a play, and not to a question of libel on personal character, and the language of the judgments in that case shows that both the eminent judges who decided it intended to deal with literary criticism. The law laid down by the decision in that case has, therefore, nothing to do with personal libels such as that imputation of disgraceful mo- tives to an individual. In order to demonstrate this it is only neces- sary to quote what may be said to be the leading passage in the judgment of Lord Esher. He says : "What is the meaning of a 'fair comment'? I think the meaning is this. Is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in ques- tion? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man, would have made such a comment on the work. It is very easy to say what clearly would be beyond the limit. If, for instance, the writer attacked the private character of the author." With this language as applied to literary criticism, I fully agree, but it gives no support to the contention of the counsel for the appellants in the present case, seeing that we have here to deal with imputations of motives which unquestionably amount to attacks on the character of the plaintiff. The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment ; see Andrews v. Chap- man, (1853) 3 C. & K. 286. The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavorable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion pur- ports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insuffi- ciency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses. In this relation I must express my disagree- ment with the view apparently taken by the Court of Queen's Bench in Ireland in the case of Lcfroy v. Burnsidc, 4 L. R. Ir. C. tI34 HUNT V. STAR NEWSPAPER CO. L. 556, where the imputation was that the plaintiffs dishonestly and corruptly supplied to a newspaper certain information. The court treated the qualifications "dishonestly" or ''corruptly" as clearly comment. In my opinion they are not comment, but constitute alle- gations of fact. It would have startled a pleader of the old school if he had been told that, in alleging that the defendant "fraudulently represented," he was indulging in comment. By the use of the word "fraudulently" he was probably making the most important allega- tion of fact in the whole case. Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be com- ment, and not statement of fact, cannot be protected by the plea of fair comment. In the next place, in order to give room for the plea of fair comment, the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails. Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation. This is the language of Kennedy J. in Joynt v. Cycle Trade Publishing Co. It is based on the judgments in Campbell v. Spottiszvoode, 3 B. & S. 769, a case of the highest authority, and is, in my opinion, un- questionably a true statement of the law. The only portion of the statement which requires examination is the phrase "except so far as the facts truly stated warrant the imputation." Speaking for my- self, the words "warrant the imputation" can bear but one meaning, and that meaning is stated so plainly by Lord Atkinson in the opin- ion delivered by him in the case of Dakhyl v. Labonchere. In other words a libellous imputation is not warranted by the facts unless the jury hold that it is a conclusion which ought to be drawn from those facts. Any other interpretation would amount to saying that, where facts were only sufficient to raise a suspicion of a criminal or disgraceful motive, a writer might allege such motive as a fact and protect himself vmder the plea of fair comment. No such latitude is allowed by English law. To allege a criminal intention or a dis- reputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence. I agree that an allegation of fact may be justified by its being an inference from other facts truly stated, but, as Lord Atkinson says in tihe passage just quoted, in order to warrant it the jury must be satis- fied that such inference ought to be drawn from those facts. Applying this law to the facts of the present case, I would say, first, that I have a great doubt whether there is anything in the pub- lication complained of which can fairly be called comment at all, unless it be the headlines of the second article. All the rest appears to me to purport to be statement of fact, and therefore, in my opin- ion, the defendants could only succeed by establishing their plea of justification with respect to it. I have great doubt, therefore, wheth- er the learned judge ought to have allowed the issue of fair comment to go to the jury at all (except, perhaps, as to those headlines.) But the judge permitted it to go to the jury, and, therefore, he was bound to give them a proper direction as to it. In my opinion the I BURT V. ADVERTISER NEWSPAPER CO. 1 135 direction he gave was so expressed as to bear a meaning which might have misled the jury and affected their verdict, and as it was a gen- eral verdict, not distinguishing the issues, but giving a sum by way of damages in respect of both, we have no alternative but to send the case back for a new trial, because it is impossible to say to what ex- tent the verdict may have been influenced by such misdirection. Buckley, L. J. Comment which tends to prejudice may still be fair ; it may convey imputations of bad motive so far as the facts truly stated justify such an imputation. It is for the jury to say whether the facts justify the imputation or not. The fault here is that that question has never properly been left to them. The ques- tion for the jury is whether the comment is in their opinion beyond that which a fair man, however extreme might be his views in the matter, might make honestly and without malice, and which was not without foundation. The defense of fair comment extends to the imputation of motives. Cockburn, C. J. in Wason v. Walter, ( 1868) L. R. 4 Q. B. 73, at p. 93, speaking of the development of the law of libel, says : "The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized."^ Whether the criticism be upon a literary pro- duction or the conduct of a public man, it is for the jury, I think, to find whether the imputation based upon facts truly stated, does or does not, honestly represent the opinion of the person who gives ex- pression to it and was not without foundation. =^ BURT V. ADVERTISER NEWSPAPER CO. Supreme Judicial Court of Massachusetis, 1891. 154 Mass. Rep. 238. Holmes, J. The first question which we shall consider is raised by the presiding judge's refusal to rule that the articles were privi- leged. The requests referred to each article as a whole. _ Each article contained direct and indirect allegations of fact touching the plaintiff, and highly detrimental to him, charging him with being a party to alleged frauds in the New York custom-house. Some or all of these allegations we must take to be false. In our opinion the rulings asked were properly refused. We agree with the defendant, that the subject was of public in- terest, and that in connection with the administration of the custom- 'In R. v. Cobbett. 29 How. St. Tr. 1 (1804), Lord Ellenborough charged the jury, p. 49, that, "If a publication be calculated to alienate the affections of the people, by bringing the government into disesteem. whether the ex- pedient be by ridicule or obloquv." it was a criminal libel. ''Accord: Dunneback v. Tribune Co.. 108 Mich. 75 (1895), inference, from fact that the treasurer's sureties objected to plaintiff's appomtment as deputy, that they did not wish to be responsible for public funds if the plaintiff had any share in handling them, held justifiable, see Hooker J. dis- senting: Howarth v. Barlow. 113 App. Div. (N. Y.) 510 (1906), accusations against a clerk of a village board of intent to defraud; and see Neeb v. Hope til Pa. St. 145 (1885), p. 153. 1 136 BURT V. ADVERTISER NEWSPAPER CO. house the defendant would have a right to make fair comments on the conduct of private persons affecting that administration in the way alleged. But there is an important distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest, and the privilege existing in the case, for instance, of answers to inquiries about the character of a servant. In the latter case a bona fide statement not in excess of the occasion is privileged, although it turns out to be false. In the former, what is privileged, if that is the proper term, is criticism, not statement, and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction,^ if he takes upon himself in his own person to allege facts otherwise libelous, he will not be privileged if those facts are not true. The reason for the distinction lies in the different nature and degree of the exigency and of the damage in the two cases. In these, as in many other instances, the law has to draw a line between conflicting interests, both intrinsically meritorious. When private inquiries arc made about a private person, a servant, for example, it is often im- possible to answer them properly without stating facts, and those who settled the law thought it more important to preserve a reason- able freedom in giving necessary information than to insure people against occasional unintended injustice, confined as it generally is to one or two persons. But what the interests of private citizens in public matters requires is freedom of discussion rather than of state- ment. Moreover, the statements about such matters which come before the courts are generally public statements, where the harm done by a falsehood ir> much greater than in the other case. If one private citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no bet- ter than the writer. Sheckell v. Jackson, 10 Cush. 25, 26.^ ^In Mangena v. Wright, 100 L. T. 960 (1909), Phillimore, J., held that such comment is protected. Fair comment on the statements, though in fact untrue, in a public document or in the accurate report of judicial or legislative proceedings, the publication or reporting of which is itself, by statute or by common law, privileged, whether published by the defendant himself or another, are protected, Mangena v. Wright, supra, aliter where thev are contained in the report of proceedings of a vestry, the publication of which is not privileged, Popham V. Pickburn, 7 H. & N. 891 (1862). But the comment must be fair, see Metcalf v. Times Publishing Co., ante. "'Accord: Joynt v. Cycle Trade Publishing Co., L. R. 1904, 2 K. B. 292; Daz'is V. Shepstone, L. R. 11 A. C. 187 (1886) ; Digby v. Financial News, L. R. 1907, 1 K. B. 502; Walker v. Hodgson, L. R. 1909, 1 K. B. 239; Hunt v. Star Nczvspapcr, post; Hubbard v. Alhrn, 200 Mass. 166 (1908) : Hay v. Rcid, 85 Mich. 296 (1891) : Martin v. Payne, 69 Minn. 482 (1897) ; Parley v. McBride, 74 Nebr. 49 (1905) ; Fry v. Bennett, 5 Sandf. 54 (N. Y. 1851) ; and see Barr v. Moore, 87 Pa. St. 385 (1878), and Neeb v. Hope, 111 Pa. St. 145 (1885). Nor is comment fair which is based on non-existent facts, whether asserted by the defendant or assumed by him to be true. Dighy v. Financial News. Hub- hard V. Alleyn, Lefroy v. Burnside, Fry v. Bennett, 5 Sandf. 54 (N. Y. 1851), and compare cases cited in Note 2 to Carr v. Hood. "To say that you may first libel a man and then comment upon him is EIKHOFF V. GILBERT. II37 EIKHOFF V. GILBERT. Supreme Court of Michigan, 1900. 124 Michigan, 353. Hooker, J. The defendants are memb'brs of an organization called the "Good Government League," in the city of Detroit, which professes to have for its object the election of worthy men to office, and the promotion of good order and honest administration of city affairs. The plaintiff, having attended one session of the legislature in the capacity of representative, was a candidate for re-election. This action was for libel, alleged to have consisted of three publica- tions over the names of the defendants. One, for convenience called the "White Circular," was addressed to the voters, and con- tained in parallel columns the names of several candidates whom the electors were advised to vote for or against. The portion appli- cable to the plaintiff was as follows : VOTE FOR AGAINST Harry C. Barter for Repre- Henry Eikhoff for Repre- sentative, because he represents sentative, because in the last all that is good in his opponent, legislature he championed meas- and does not represent the ob- ures opposed to the moral inter- jectionable. He is the champion ests of the community, of labor and arbitration. The question before us is whether the case should have been submitted to the jury upon one or both counts. The first charge is, in substance, that the plaintiff, in his official capacity of representa- tive, championed measures opposed to the moral interests of the community. The undisputed testimony shows that as representa- tive he introduced, and, to some extent, at least, approved and sup- ported, measures calculated to change the liquor laws of the state by permitting sales on legal holidays, and election days after the close of the polls, and by repealing the act prohibiting screens in saloons. The court charged the jury that: The language of the white circular, unexplained, unequivocally charged the plaintiff with having championed legislation oj^posed to the moral interests of the community. This charge is an attack obviously absurd," Cockburn, C. J., Queen v. Garden, L. R. 1879, 5 Q. B. D. 1, p. 8. "If the defendant makes a misstatement of any of the facts upon which he comments, it at once negatives the possibility of his comment being fair. It is therefore a necessary part of the plea of fair comment to show that there has been no misstatement of facts in the statement of the materials on which the comment was based," Collins, M. R. in Digby v. Finan- cial News, L. R. 1907, 1 K. B. 502. So Duer, J. says in Fr\ v. Bennett. 5 Sandf. 54 (N. Y. 1851), "the truth of the facts upon which"" (the critical animadversions) "were founded, must be established or admitted . . . the defenses of truth and privilege are inseparably connected ;" see also. Palles, C. B. in Lefroy v. Biirnside, supra. As to the distinction between a plea of justification and a plea of fair comment, see Collins, ]\I. R. in Digby v. Financial News, L. R. 1907, 1 K. B. 502. I 138 EIKHOFF V. GILBERT. upon his moral character, and would be likely to bring him into public contempt and disgrace. It is, therefore, libelous per sc. The defense made was : First, that the statement was true ; and, second, that, if it cannot be said to be true, the proven acts were subject to criticism, and the defendants had the right to express their opinion as to their effect — in other words, that the language was privileged. The defendants had a right to discuss the fitness of the plaintiff for the office to which he aspired, and might lawfully communicate to the electors any facts within their knowledge concerning his char- acter or conduct, and express their opinions upon them, and their inferences deduced from them, so long as they stated as facts only the truth, and as opinions and inferences therefrom only honest be- lief. The fault here, if there be one, is that opinions and inferences were not stated as such, but as facts. The defendants sought to justify the statement made, viz., that the plaintiff championed meas- ures opposed to the moral interests of the community, by proving that he supported the two measures stated. To the minds of some, that would be sufficient to establish the truth of the charge. Others would think otherwise. *-' It is manifest, therefore, that we cannot say, as a legal proposition, that the undisputed testimony estab- lishes the truth of the broad charge. Evidently the learned circuit judge took this view. It is evident that the acts proved were suffi- cient to induce in the minds of some the opinion that the plaintiff had supported measures opposed to the moral interests of the com- munity. The judge therefore instructed the jur.y that such persons were privileged to say so, and directed a verdict for defendants. But, admitting that they were privileged to express their opinions concerning certain acts, was this what was done? Did they not go further, and do more ? They did not state what measures were sup- ported, and their opinions of that particular conduct, but said gen- erally and unqualifiedly, as a fact, that the plaintiff had arrayed himself against the moral interests of the community, which, if true, should discredit him with any voter who should believe the statement. It appealed alike to all classes — those who should look upon the legislation proven as not opposed to the moral interests of the community as well as those holding contrary views ; and it afforded no one an opportunity to judge whether the statement was a proper deduction from the fact upon which it was based or not. If one states that a candidate is a thief, without qualification, he communicates a fact pertaining to his fitness ; but it is a slander if untrue, whether it was made in good faith or not, although, had he stated the exact facts, and expressed the opinion that they amounted to stealing, though they did not technically constitute the offense of larceny, the communication might be privileged.^ 'See also. Littlejohn v. Greeley, 13 Abb. Pr. 41 (N. Y. 1861), statement that the plaintiff "was prominent in the corrupt legislation of last winter," see also, Crows Nest Pass Coal Co. v. Bell, 4 Ont. L. R. 660 (1902), and Champagne v. Beauchamt>, 31 Lower Can. J. 144 (1886). A characterization of another's conduct as dishonorable, the facts known to the defendant being only partially stated, was held in Christie v. Robert- O BRIEN V. MARQUIS OF SALISBURY. 1139 FIELD, J., in O'BRIEN r. MARQUIS OF SALISBURY. 54 Justice of the Peace, 215 (1890), />. 216. "Comment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a de- duction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed, and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding cir- cumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact, and then, if untrue, there would be no answer to the action ; but if, although stated as a fact, it is proceeded or accompanied by such other facts, and it can be reasonably based upon them,^ the words may be reasonably regarded as comment, and comment only, and, if honest and fair, excusable ; and whether it is to be regarded as fact or comment it is a question for the jury, to be determined by them upon all the circumstances of the case." son, 10 N. S. W. L. R. 157 (1889), to be "misdescription. Real comment is merely the expression of opinion. Misdescription is matter of fact. To state accurately what a man has done, and then to say that in your opinion such conduct is dishonorable or disgraceful, is comment which may do no harm, as every one can judge for himself whether the opinion expressed is well- founded or not. Misdescription of conduct, on the other hand, leaves the reader no opportunity for judging for himself of the character of the conduct of the condemned, nothing but a false picture being presented for judgment ;" Windeyer, J., p. 161. Where the facts arc stated fully and accurately "the writer mav, bv his opinion, libel himself rather than the subject of his remarks;" Wilde, B., Popham v. Pickbuni, 7 H. & N. 891 (1862) ; Grant, J., Belknap v. Ball, 83 Mich. 583 (1890). p. 589. Any general characterization of the plaintiff's conduct or qualification for office, without giving anj^ grounds therefor, is a statement of fact and not fair comment, Broadbent v. Small, 2 Vict. L; R. 121 (1876) ; see Archer V. Ritchie Sr Co., 18 Rettie 719 (Sc. Ct. of Sess. 1891). p. 727. Many of the cases which hold that the motives of a public officer can not be attacked are cases of this sort; see cases cited in Clifton v. Lange, post, Note 1. ^See Cooper v. Lawson, 8 A. & E. 746 (1838), in which, after stating that the plaintiff had become surety for an election petition and that he was in circunistances making him unfit to become a surety, the defendant asked why this "cockney tailor" took all this trouble and risk of exposure in a matter with which he had nothing to do, and said the only answer was that he was "hired for the occasion." This was held not to be a "mere shadow of previous imputation" but to infer a new fact. In many of the cases in which it is held that the motives of a candidate or public man may not be attacked and that criminal misconduct may not be imputed to him are cases of this sort, where the plaintiff's conduct is ex- plained by the assertion of an act done by him or another or both. Bee Pub- lishing Co. V. Shields, 68 Nebr. 750 (1903), conduct of a district attorney ascribed to his having been bribed; Hamilton v. Eno, 81 N. Y. 116 (1880), allegation that an official writing a report on street paving was employed by one of the paving companies interested. See also. Commercial Publishing Co. v. Smith, 149 Fed. 704 (C. C. A. 6th Circ. 1907), where the plaintiff's guilt was assumed from the mere fact 1 140 TOOGOOD f. SPVRING. SECTION 5. Abuse of Conditional Immunity. (a) Excessive publication. TOOGOOD z: SPYRING. . Court of Exchequer, 1834. 1 Crompton, Meeson & Roscoes, 181. Parke, B. In this case, which was argued before my Brothers BoUand, Alderson, Giirney and myself, a motion was made for a non- suit, or a new trial, on the ground of misdirection. It was an action of slander, for words alleged to be spoken of the plaintiff as a jour- neyman carpenter, on three different occasions. It appeared that the defendant, who was a tenant of the Earl of Devon, required some work to be done on the premises occupied by him under the Earl, ?nd the plaintiff", who was generally employed, by Brinsdon, the Earl's agent, as a journeyman, was sent by him to do the work. He did it, but in a negligent manner ; and, during the progress of the work, got drunk ; and some circumstances occurred which in- duced the plaintiff to believe that he had broken open the cellar door, and so obtained access to his cyder. The defendant a day or two afterwards met the plaintiff in the presence of a person named Taylor, and charged him with having broken open his cellar door with a chisel, and also with having got drunk. The plaintiff denied the charges. The defendant said he would have it cleared up, and went to look for Brinsdon ; he afterwards returned and spoke to Taylor, in the absence of the plaintiff; and, in answer to a question of Taylor's, said he was confident that the plaintiff had broken open the door. On the same day the defendant saw Brinsdon, and com- plained to him that the plaintiff had been negligent in his work, had got drunk, and he thought he had broken open the door, and re- quested him to go with him in order to examine it. Upon the trial it was objected, that these were what are usually termed "privileged communications." The learned Judge thought that the statement to Brinsdon might be so, but not the charge made in the presence of Taylor; and in respect of that charge, and what was afterwards said to Taylor, both of which statements formed the subject of the action, the plaintiff had a verdict. We agree in his opinion, that the communication to Brinsdon was protected, and that the state- ment, upon the second meeting, to Taylor, in the plaintiff's absence, was not ; but we think, upon consideration, that the statement made to the plaintiff, though in the presence of Taylor, falls within the class of the communications ordinarily called privileged ; that is, cases where the occasion of the publication aft'ords a defense in the absence of express malice. In general, an action lies for the mali- cious publication of statements which are false in fact, and injurious of his arrest for murder: and Haynes v. Clinton Printing Co., 169 Mass 512 (1897), where his gi:ilt was insinuated, the facts recited being obviously insufficient grounds for such insinuation. TOOGOOD V. SPYRiNG. II4I to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, un- less it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such com- munications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. Among the many cases which have been reported on this sub- ject, one precisely in point has not, I believe, occurred; but one of the most ordinary and common instances in which the principle has been applied in practice is, that of a former master giving the char- acter of a discharged servant ; and I am not aware that it was ever deemed essential to the protection of such a communication that it should be made to some person interested in the inquiry, alone, and not in the presence of a third person. If made with honesty of pur- pose to a party who has any interest in the inquiry (and that has been very liberally construed (Child v. Affleck, 4 ^lan. & Ryl. 590; 9 B. & C. 403) ), the simple fact that there has been some casual bystander cannot alter the nature of the transaction. The business of life could not be well carried on if such restraints were imposed upon this and similar communications, and if, on every occasion on which they were made, they were not protected unless strictly private. In this class of communications is, no doubt, comprehended the right of a master bona Me to charge his servant for any sup- posed misconduct in his service, and to give him admonition and blame; and we think t hat the simple circumstan ce of the master exercising that riglitTn the presence ot anot her, does by n o means of ^necg^^y take away from it the proFecFJon w-Hich the law w ould _otherwise_ a£fprd. Where, mdeed, an opportunity is sought for mak- ing such a charge bc^fore third persons, wdiich might have been made in private, it would afford strong' evidence of a malicious in- tention, and thus deprive it of that immunity which the law allows to such a statement, when made with honesty of purpose ; but the mere fact of a third person being present does not render the com- munication absolutely unauthorized/though it may be a circum- stance to be left with others, including the style and character of the language used, to the consideration of the jury, who are to deter- mine whether the defendant has acted bona Ude in making the charge, or been influenced by malicious motives. In the present case, the defendant stood in such a relation with respect to the plain- tiff, though not strictly that of master, as to authorize him to im- pute blame to him, provided it was done fairly and honestly, for any supposed misconduct in the course of his employment ; and we think that the fact, that the imputation was made in Taylor's pres- ence, does not, of itself, render the communication unwarranted and S..»42 KRUSE V. RABE. otncious, but at most is a circumstance to be left to the considera- tion of the jury. We agree with the learned Judge, that the state- ment to Taylor, in the plaintifif's absence, was unauthorized and officious, and therefore not protected, although made in the belief of its truth, if it were, in point of fact, false ; but, inasmuch as no damages have been separately given upon this part of the charge alone, to which the fourth count is adapted, we cannot support a general verdict, if the learned Judge was wrong in his opinion as to the statement to the plaintiff in Taylor's presence ; and, as we think that at all events it should have been left to the jury whether the defe^idant acted maliciously or not on that occasion, there must be a ne\\ trial Rule absolute for a new trial. KRUSE V. RABE. Court of Errors and Appeals, 1911. 80 X /. L. 378. Parrcr, J. This was a suit for slander. At the trial there was a verdict directed for the defendant, and this writ of error is based upon an exception to that direction. The evidence w-as sufficient to justify the jury in finding that the plaintiff was a real estate broker doing business in Hoboken, and was employed under a written con- tract by a Airs. Vette to negotiate the sale of certain real estate be- longing to her, in which contract she agreed to pay him for his serv- ices a commission of three per cent. ; that the plaintiff succeeded in making a sale, and at the time the transaction was to be closed, the plaintiff' and Mrs. Vette, accompanied by defendant, as her attorney, attended at the office of the attorney for the purchaser, where the title was closed and Mrs. "V^ette was paid by a check, and she and the plaintiff and defendant w'ent to a neighboring bank, of which defendant w^as the president, to cash the check and pay plaintiff his commission ; that plaintiff had procured from Mrs. Vette a sort of certificate that he had negotiated the sale and had earned his com- mission, and stating its amount, and that he handed this when in the bank to Mrs. Vette, w'ho handed it to defendant, wdio "went inside" (probably inside the partition) for the cash to pay plaintiff, and either on coming out or before going in, looked at the paper, noticed that the amount was three per cent., and addressing plain- tiff, said in a loud tone of voice and in the presence of the bank clerks close by and of several persons transacting business in the bank, "I never heard of any such outrageous commission. I know a hundred real estate people in this county and none of them charge over two and one-half per cent." That plaintiff' said, "Mr. Rabe, will you allow me to explain ?" and he said, "No, it is simply this, you have taken advantage of this woman." There was no allega- tion of special damage in the declaration. Besides a plea of gen- eral issue, there were pleas of justification and privilege. The court directed a verdict for defendant^ without stating what grounds such direction was based on. * The motion for a direction of a verdict for defendant was based upon the grounds — first, that the words were not slanderous per sc ; secondly, that this was a case of a lawyer attempting to protect his chent, and that whatever KRUSE V. RABE. * 1 143 We think this action of the trial court was erroneous. It is claimed for the defendant that the occasion was privileged. There can be no doubt that if Mrs. Vette had asked Mr. Rabe, as her attorney, in his office, what he thought of the amount of plaintiff's charge, and he had expressed himself to her in response to that inquiry, to the same effect as he expressed himself to the plaintiff, with an honest belief in the truth of what he was saying, his language would then have been privileged. King v. Patterson, 20 Vroom 417, 438; Fahr v. Hayes, 21 Id. 275, 278. Butthis is not what happened. The evidence seems to be somewhat in con- flict as to whether Mrs. Vette made any inquiry of Mr. Rabe about the rate or amount of the commission ; but assuming that she did, and that Rabe believed what he was saying, the question still re- mains whether in view of the circumstances under which, and the manner in which plaintiff claims he said it, the jury would not have been entitled to find the presence of express malice. _ De- fendant's counsel point to Fahr v. Hayes, supra, as authority to the contrary; and that decision, though in the Supreme Court and not binding on us, is entitled to great weight. It goes very far in the protection of such communications as privileged and in the ne- gation of express malice, but it is not dispositive of this case. In Fahr v. Hayes the plaintiff was asking for credit and gave Hayes as a reference, this, in the opinion of the Supreme Court, justify- ing a confrontation of plaintiff by defendant for the purpose of convincing the prospective creditor of the danger of trusting the plaintiff. In the case at bar, the plaintiff did not refer Mrs. Vette to Rabe, and had no part in her consulting him. It was true that she was entitled to consult him and he was entitled to advise her with entire freedom so long as he did so honestly. But it cannot be said that a lawyer may shout to his client in a public place, ad- vice that a party with whom the client has been dealing has taken advantage of him, and claim immunity under the plea of priv- ilege. The rule is thus stated in Odgers, Lib. & S. 245 ; 335 : "If the words be spoken in the presence of strangers wholly un- interested in the matter, the communication loses all privilege. The defendant in these cases must be careful that his words reach only those who are concerned to hear them.- Words of admonition or confidential advice should be given privately, not shouted across he said was in the course of a conversation addressed to the client in which the plaintiff took part ; and third, that if the words were slanderous, they were justified. = In Dale v. Harris. 109 Mass. 193 (1872), an instruction that the defend- ant accusing the plaintiff of stealing his property was protected if no other per- sons other than themselves and a police officer to whom the charge was made were present or had taken reasonable care that no such person should be within hearing, was sufficiently favorable to the defendant ; see Morton v. Knipe, 128 App. Div. 94 (N. Y. 1908), to the effect that a privileged "occasion does not protect one who has made the communication on the occasion know- ingly or carelessly in the hearing of those who are not concerned" ; but see 1 144 KRUSE V. RABE. the street,^ or written on postcards,* or published in the newspapers.^ (_ Citing cases.) It is true that the hicidental presence of some third person will not alone take the case out of the privilege, if it was iin- avoidable or happened in the usual course of business affairs.*^ But if the defendant purposely contrives that a stranger should be pres- ent, and who, in natural course of things, would not be present, all privilege is lost.' (Cases.) And whenever a defendant de- liberately adopts a method of communication which gives unneces- sary publicity to statements defamatory of plaintiff, the jury will be apt to infer malice." It is this last particular in which the case at bar is distinguish- able from Fahr v. Hayes. The publicity of the words in that case was fairly attributable to the plaintiff's own act, and was considered by the court to be justified in consequence, and that malice was not inferable therefrom.'* In the case at bar, as already noted, the de- fendant, if plaintiff's evidence is believed, took occasion to im- pugn his business integrity by addressing him and not defendant's client, ill a semi-public place, in a loud voice, and without any in- vitation on his part. We think this brings the case within the last clause of the text just quoted, and that the question of express malice should have been left to the jury. The judgment is ac- cordingly reversed to the end that a venire de novo issue. ** Webber v. Vincent, 9 N. Y. S. 101 (1890), where the duty to communicate the statement only to those interested is stated as absolute. ^Accord: Oddy v. Lord George Paulet, 4 F. & F. 1009 (1865), defendant. a customer at the plaintitif's shop, stood in the street outside the shop and loudly took him to task for his alleged dishonesty. So posting libellous placards or having a defamatory notice cried by a town crier is held to be excessive publication and as such evidence of malice, Cheese v. Scales, 10 M. & W. 488 (1842) ; Woodard v. Dozvsing, 2 Man. & Ry. 74 (1828). * See Note 3 to Edinondson v. Birch & Co. Ltd., post, p. 1149. ^ See Coleman v. MacLennan, a)ite, p. 1070, and cases cited in the note thereto. ° Broiighton v. McGrew, 39 Fed. 672 (1889), presence of an attorney al a stockholders' meeting held not to destroy the shareholder's right to make statements reflecting on an employee's competency ; Fittard v. Oliver, L. R. 1891, 1 Q. B. 474; Gildner v. Bxisse, 3 Ont. L. R. 561 (1902). 'Parsons v. Siirgey, 4 F. & F. 247 (1864) ; Taxlor v. Hawkins, 16 Q. B. 308 (1851). ^ Brow v. Hathaway, 13 Allen 239 (Mass. 1866); Billings v. Fairbanks, 136 Mass. 177 (1883), with which compare Dale v. Harris, 109 Mass. 193 (1872), where the defendant made the statement of his own motion, but see Webber v. Vincent, 9 N. Y. S. 101 (1890), where it was held that though the defendant made the statement in answer to questions put by one interested, the privilege was lost by the presence of third persons. " Unless the circumstances clearly require the statement to be made at the particular time and place, it is a matter for the jury to say whether "the charge was made before more persons than was necessary" — Littledale, J. in Padnwre v. Lawrence, 11 A. & E. 380 (1840) ; Davics v. Snead. L. R. 5 Q- B. 608 (1870) ; but the fact that the defendant's wife was present was held in Jones v. Thomas. 34 W. R. 104 (1885). Excessive publication is said in Den- ver Warehouse Co. v. Hollozvay, 34 Colo. 432 (1905), not to per se destroy the privilege but to be evidence of malice only. EDMONDSON t'. BIRCH & CO. ' 1 145 EDMONDSON v. BIRCH & CO., Ltd. Court of Appeal, 1907. L. R. 1907, 1 King's Bench, 371. Collins, M. R. This is an application for judgment or a new trial in an action tried before Lawrence, J., with a jury. The ac- tion was for libel, and the defense set up was, in substance, priv- ilege. It appears to me that, when the facts are sifted and ascer- tained, the case is really a very clear one. The action was originally based upon the words of the telegram mentioned in the statement of claim, but subsequently the statement of claim was amended by adding a claim in respect of a letter written by the defendants. The letter, however, related to the same subject-matter as the tele- gram, and the same law appears to me to be applicable to both docu- ments. The circumstances under which they were published were as follows : The defendants were a company in London, having business relations with a company in Japan, which acted as their agents and correspondents in that country. The plaintiff had been temporarily engaged by the company in Japan as their manager on trial, and the arrangement between the plaintiff and that com- pany is stated in the statement of claim as follows : "On March 19, 1904, the plaintiff was by verbal agreement engaged by Messrs. Birch, Kirby & Co., Limited, of Kobe, Japan, on trial as their mineral manager and adviser at a monthly salary of 150 yen (£15 English money). At the same time it was further verbally arranged that Messrs. Birch, Kirby & Co., Limited, should immediately com- municate with the defendant company in London to ascertain if they approved the engagement, and, subject to such approval, they agreed that if, after three months' trial, they were satisfied with the con- duct and ability of the plaintiff, they would continue him in their permanent employ at an increased salary to be subsequently agreed upon, in addition to which the plaintiff was to have a share of profits arising from the mineral department of their business." In conse- quence of this arrangement the letter of May 7, which was one of the libels complained of, was written by the defendant company to the company in Japan. The letter, a copy of which was entered in the defendant company's letter-book, was in these terms. (The Mas- ter of the Rolls then read the letter.) This letter was followed by a telegram, sent to Japan in the terms of a code, which, when de- coded, reads thus : "Have no dealings with Edmondson : give no- tice of dismissal." This telegram, with the translation of it, was copied into the defendant company's cable-book, and constituted the second libel complained of by the plaintiff. The telegram appears to have been couched in the terms in which it was, because they were nearest the code terms available for the purpose of conveying the required meaning. The learned judge held that the occasion on which the letter and telegram were published to the company in Japan was privileged, and that there was no evidence of any actual malice to take away the privilege ; but, although that was so, he was of opinion, upon the authority of Pullman v. ///// & Co., (1891) i 11^6 EDMONDSON V. BIRCH & CO. Q. B. 524, that there had been a publication of the statements com- plained of which did not fall within the privilege, because it was made to persons who had no correlative interest in the matter, by way of intermediaries, namely, the clerks in the defendants' own office, who took down the communications to be sent to the com- pany in Japan and wrote them out, and, as regards the telegram, the telegraph clerks. He therefore left the case to the jury, with the result that they gave the plaintiff a verdict for £80 damages. The defendants now apply for judgment or a new trial on the ground that the occasion was privileged, and that privilege covered the publication to which I have just alluded. It seems to me that the learned judge took too high a view of the effect of the authority upon which he acted, namely, Pullman V. Hill & Co., (1891) I Q. B. 524. That decision related to a com- munication made by the defendants, a limited company, to the plain- tiffs, a partnership firm, which involved a serious charge against the plaintiffs. This communication was made by a letter which was dictated by the defendants' managing director to a clerk ; and the court held that, under the circumstances, it was not necessary, or in the ordinary course of business, for the director to have availed himself of the clerk for the purpose of making the communication complained of, and therefore it was not privileged. The question wdiich we have to decide is whether that case, as subsequently ex- plained and qualified in Boxsius v. Goblet Freres, (1894) i Q. B. 842, is an authority which concludes the present case in favor of the plaintiff. On reference to the judgment of Lord Esher, M. R., in the latter case it will be seen how he qualified and distinguished the decision in the earlier case, to which he was himself a party. He said : 'Tn the case of Pullman v. Hill & Co., ( 1891) i Q. B. 524, this court held that, if a merchant dictates to a clerk a libellous state- ment about a customer, which that clerk takes down and gives to another clerk in the office to copy, that is a publication to the cl-erks, and the occasion of such publication is not privileged. We held so on the ground that it does not fall within the ordinary business of a merchant to write such defamatory statements, and that, if he does so, it is not reasonably necessary, as he is doing a thing not in the ordinary course of his business, that he should cause the statement to be copied by a clerk in his office.^ The question here arises in ^ It has been held, following Pullman v. Hill, that a letter written by a business man or by the agent of a company in charge of his business to a plaintiff, demanding the return of property alleged to have, been wrongfully withheld by him and characterizing his conduct as theft, is not a communi- cation rn the ordinary course of business and that the dictation of such letters to a stenographer is not justifiable, Moran v. O'Regan, 38 New Brunswick R. 189 (1907) ; Puterbaugh v. Gold Medal Co., 7 Ont. L. R. 582 (1904), revising the decision of the Divisional Court, 5 Ont. L. R. 680 (1903). It is doubtful whether any proper distinction can be drawn between the privilege attaching to communicate matter necessary for the defense of one's own interest or the interests of one's principals and the privilege to communicate similar matter for the protection of others. In these cases, as in Pullman v. Hill, the letters, in addition to the statements necessary for the assertion of the de- I EDMONDSON V. BIRCH & CO. 1 147 the case of a solicitor instructed by a client to obtain payment of a bill, and to press the person who is charged with payment of the bill to the extent of asserting that he has been trying to evade pay- ment by at least a shabby trick, and possibly by a criminal action. The first point taken is that that is not a matter within the ordinary business of a solicitor. This is an argument which a few days ago we overruled in another case, where it was said that the business of a solicitor was to conduct actions ; but the court pointed out that it was also part of the ordinary business of a solicitor to endeavor to secure the money due to his client by taking steps not necessarily arising in an action." Lord Esher then went on to deal with the very point raised in this case: "Then it is said that the solicitors cannot claim privilege as between themselves and the typewriting clerk who took down the letter and the copying clerk who copied it into the letter-book. Such an argument requires consideration ; but it seems to me to come to this. It is the duty of the solicitor to write and send this letter, and it is his duty to do that in the ordi- nary and reasonable way. The duties of a solicitor are not to one client only, but to all his chents, and he has to take measures to perform them with due diligence, and according to the necessary and reasonable method of conducting business in a solicitor's office. If a solicitor is instructed to write defamatory matter on a privi- leged occasion on behalf of a client, he must do this business as he does other business in the office, in the ordinary way, and that in- volves his having the communication taken down or copied by a clerk in his office, and copied into the letter-book. It is necessary to keep a record of the transaction, one reason being that there may be a check on the bill of costs. Such a case seems to me to be dis- tinguishable from that of a merchant who is writing a libel out of the course of his ordinary business, who, if he has the letter copied by a clerk, does this at his own risk." The result of the two cases to which I have alluded, taken to- gether, appears to me to be that, where there is a duty, whether of perfect or imperfect obligation, as between two persons, which forms the ground of a privileged occasion, the person exercising the privilege is entitled to take all reasonable means of so doing, and those reasonable means may include the introduction of third per- sons, where that is reasonable and in the ordinary course of busi- ness ; and if so, it will not destroy the privilege. In the case of a solicitor, his duty in conducting the business of his client may be fendant's claim against the plaintiff, contained aspersions upon the plaintiff's motives or characterized his conduct as fraudulent or criminal. In none of the American cases, which consider the effect of dictation to a stenographer as a publication, was the communication privileged. In Gam- brill v. Schoolcy, 93 Md. 48 (1901), and Sun Life Assurance Co. v. Bailey, 101 Va. 443 (1903), there was no claim or proof of privilege, while in Ferdon v. Dickens, 1^1 Ala. 181 (1909), the court held that the communication of the letter to the person addressed was not privileged. And see Owen v. Ogilvie Co.; 32 N. Y. 465 (1898), where it was held that the manager who dictated the letter addressed to the plaintiff and the stenographer who took it down were both agents of the employer in writing it, there was no pubhcation to any third party. 1 148 EDMOXDSOX Z\ JUUCli & CO. ■ absolute, whereas in this case it may be said that the duty was only one of imperfect obligation, but the nature of the obligation which gives rise to the privilege cannot^ I think, alter its effect in this re- spect. If the duty is such as to give rise to a privileged occasion, then the fact that it is only one of imperfect obligation cannot effect the mode in which the privilege may reasonably be exercised. In the case of Boxsius v. Goblet Freres, (1894) i Q. B. 842, Davey, L. J. said that the decision at which the court was arriving was jus- tified by the earlier authorities. I think the only one of those earlier authorities to which I need refer is the case of Lawless v. Anglo- Egyptian Cotton Co., L, R. 4 Q. B, 262. In that case the directors of a company had caused a report, which was to be made to a meet- ing of shareholders, and which contained matter defamatory of the plaintiff, to be printed for circulation among all the shareholders, and the question arose whether the communication of that matter to the printer was privileged ; and it was held that it was, because the printing of the report was the ordinary and reasonable mode of doing what the occasion entitled the company to do, namely, com- municate the report to the shareholders. That seems to involve the decision of the very point raised in the present case, namely, that the use of the ordinary and reasonable means of giving effect to the privilege does not destroy it. In the present case there was, in addi- tion to the ordinary business relation between the defendants and the company in Japan, a special relation created by arrangement made by the plaintiff himself with the latter company to the effect that his engagement by them was to be subject to the approval of the defendant company. There was, therefore, an obligation imposed on the defendants in the matter at the instance of the plaintiff him- self, which involved communications on the subject from the de- fendant company to the company in Japan, which communications might necessarily have to be made by telegraph, inasmuch as, under the circumstances, it was obviously essential that the approval or disapproval of the engagement by the defendants should be com- municated as promptly as possible. The only witness with regard to the mode in which the communications with the company in Japan were carried out was the defendant Horner himself, He gave evidence to the effect that the communication by telegram was carried out in the only way available, and, so far as the evidence is concerned, it was all one way, namely, to the effect that, as a matter of business, the course followed in making the communications which had been made was the reasonable and usual course to adopt under the circumstances. With regard to the cross application, the argument for the plain- tiff seemed to be really founded on the fallacy that, because the mat- ter contained in a document complained of is defamatory, that is in it- self evidence of actual malice. It is of course assumed for the purpose of the defence of privilege that the document is to some extent de- famatory. I agree that the language used may in some cases be so defamatory, and so far in excess of the occasion, as to be evidence of actual malice, and to shew that the publication of the defamatory matter was not a use, but an abuse of the privileged occasion. But I EDMONDSON 7'. EIKCH & CO. 1 149 ihe mere fact that language used is somewhat strong, or not alto- gether intemperate, would not, in the absence of any indication that it was not used bona fide, be evidence of malice.- On looking at the whole of the circumstances and the correspondence in this case, I can see no shadow of a reason for the suggestion that the privilege was in the present case abused. For these reasons I think that the application of the defendants to enter judgment must be allowed, and the cross application disallowed. Cozens-Hardy L. J. I am of the same opinion, and I only wish to add this. I think that, if we were to accede to the argument for the plaintiff, we should in effect be destroying the defence of privi- lege in cases of this kind, in which limited companies and large mer- cantile firms are concerned ; for it would be idle in such cases to sup- pose that such documents as those here complained of could, as a matter of business, be written by, and pass through the hands of, one partner or person only. In the ordinary course of business such a document must be copied and finds its way into the copy letter- book or telegram-book of the company or firm. The authorities ap- pear to me to show that the privilege is not lost so long as the oc- casion is used in a reasonable manner and in the ordinary course of business. Fletcher Moulton L. J. I agree. In my opinion the law on the subject, as laid down in the cases, amounts to this: If a busi- ness communication is privileged, as being made on a privileged occasion, the privilege covers all incidents of the transmission and treatment of that communication which are in accordance with the reasonable and usual course of business.^ Judgments for defendants. -Accord: Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495 (1872). "To submit the language of privileged communications to a strict scrutiny and to hold all excess beyond the actual exigency of the occasion to he evidence of malice, would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications" — per Sir Robert Collier, p. 508; Spill v. Maule. L. R. 4 Exch. 232 (1869) ; Sutton v. Pliimridge, 16 L. T. 741 (1867), plaintiff stated to have been "as drunk as a sow"; Gattis v. Kilgo, 128 N. Car. 402 (1901) ; Strode v. Clement, 90 Va. 553 (1894), p. 559. But the language of the communication may be so much in excess of the occasion, so disproportionate to the facts or so much too violent, or may so needlessly ascribe improper motives that it may be evidence of malice, Fryer V. Kinnerslev, 15 C. B. (N. S.) 422 (1863); Gill^in v. Fozvler, 9 Exch. 615 (1854) ; JVri'ght v. Woodgate, 2 Cromp. M. & R. 573 (1835) ; Nichols v. Eaton, 110 Iowa 509 (1900) ; Gassett v. Gilbert, 6 Grav 94 (Mass. 1859) ; Atwill v. Mackintosh, 120 Mass. 177 (1876): Wagner v. Scott, 164 Mo. 289 (1907); Jackson V. Pittsburgh Times, 152 Pa. St. 406 (1893), exaggerated and sen- sational newspaper article ; Mulderig v. Wilkes-Barre Times, 215 Pa. 470 (1906) ; Farley v. Thalhimer, 103 Va. 504 (1905). So it is held in Smith v. Smith, 17) Mich. 499 (1888), that the inclusion of defamatory statements as to facts unnecessary for the protection of the maker's interests is evidence of malice, a letter notifying tradesmen not to give credit to a wife being part from her husband, unnecessarily made defamatory statements as to the causes which had led to their separation. ^Accord: Ashcroft v. Hammond, 197 N. Y. 488 (1910), semhle, at least when the plaintiff has shown his consent to a telegraphic correspondence by himself using that means of communication ; compare Williamson v. Freer, II5O HEBDITCH V. MC ILWAIXE. HEBDITCH V. McILWAINE. Court of Apt'eal, 1894. 1894 Lazv Reports, 2 Queen's Bench Div. 54. Lord Esher, M. R. In this case the plaintiff has brought an action against the defendants for writing and pubHshing a Hbel upon him, the defamatory matter complained of being that he had. when a candidate for the office of guardian of the poor, been guilty of treating. It must be borne in mind that the material part of the cause of action in libel is not the writing, but the publication of the libel. It was proved that the defendants had written and published to the board of guardians matter which the jury found to be libel- lous with regard to the plaintiff, and which was untrue. The de- fendants set up by way of defence that the occasion was privileged. It is for the defendant to prove that the occasion was privileged. If the defendant does so, the burden of shewing actual malice is cast upon the plaintiff, but, unless the defendant does so, the plaintiff is not called upon to prove actual malice. The question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which this question depends, they must be left to the jury, but, when the jury have found the facts, it is for the judge to say whether they constitute a privileged occasion. What are the facts upon which the question, whether the occa- sion was privileged, depends in the present case? There had been an election to the office of guardian of the poor, and the plaintiff had been elected. The defendants were ratepayers, who had a right to vote at the election. After the election they wrote and sent the letter containing the matter complained of to the board of guard- ians. It seems clear that, when that board had received the letter, they could do nothing in the matter. They could not set aside the L. R. 9 C. P. 393 (1874), where after a verdict for the plaintiff, based on the jury's finding that it was not reasonable to send the statements in question by telegram, the court refused to enter a verdict for the defendant. In that case the defendant, who had accused the plaintiff of theft, telegraphed from Leicester to the latter's father in London "Your child will be given in charge of the police unless you reply and come to-dav, she has taken money out of the till." In Tobin v. City Bank, 1 S. C. R. (N. S.) 267 (N. S. W. 1878). it was held excessive publication for a Sydney Bank, in order to save expense, to send a defamatory telegram through their Melbourne agents instead of directly by the Government Telegraph Office at Sydney. The sending of privileged defamatory matter by post card is not a rea- sonable manner of communication, Robinson v. Jones, Ir. 4 C. L. 391 (1879). "Tl]e question, then, is whether a person having occasion to communicate to another defamatory matter is entitled, for the mere purpose of saving one half-penny postage, to make that communication, not by a closed letter, ca- pable of being used by the person through whose hands it is transmitted to the post, by the official post office, and bv the servants of the house at which it is delivered ;"— Pallas, C. B., p. 396; Sadgrove v. Hole. L. R. 1901, 2 K. B. 1, semble, though, the statement on the post card being unintelligible to any one but the addressee, it was held that there was no excessive publication. Contra: Steele v. Edwards, 15 Ohio C. C. 52 (1897), holding that it cannot be assumed that third persons, especially post-office officials, had wrongfully read post cards not addressed to them. HEBDITCH V. MC ILWAINE. II5I election. Such being ^he facts of the case, what was the judge called upon to consider in dealing with the question whether the occasion was privileged? He had first to consider whether the defendants, who published the defamatory matter, had any interest or duty in connection with the subject which they thus brought before the board of guardians. I am not prepared to say that they had not an interest or duty. On the contrary, I am inclined to think that they had an interest in the matter. They were electors, and had an interest in having the office filled by a person properly elected. Then the position of the board of guardians, to whom the defamatory mat- ter was published, had to be considered. They had no interest in the matter, as it seems to me, and, as I have already said, they had no duty or power to take any action upon the communication made to them. Under these circumstances I think it is clear that the occasion was not privileged. It was argued that, although the board of guardians had no power or duty or interest in the matter, nevertheless the occasion was privileged, because the defendants honestly and reasonably be- lieved that the board had such a duty or power or interest, and were asking them for redress in the matter, which they believed they could give. Assuming that the defendants had such a belief, though I confess I cannot see how there could be any reason in such a be- lief, the argument in substance seems to come to this: that the be- lief of the defendants that the occasion was privileged makes it privileged. I cannot accept the proposition so put forward. \ can- not see how the belief of the defendants, who have made a mistake, and have published a libel to persons who have no interest or duty or power in the matter, can affect the question. The belief of the defendants might have a bearing on the question of malice ; if it be assumed that the occasion was privileged, the belief of the defend- ants might be strong to shew that the communication was privileged, as being made without malice, but I do not think it has anything to do with the question whether the occasion was privileged. Reli- ance was placed rather on authority than on principle in support of the contention for the defendants. If that contention had been de- cided to be correct by the Court of Appeal or any Court whose au- thority was binding on us, there would, of course, be no more to be said. But I do not think that the point has been decided in favor of the defendants by any such Court. The only case which really seems to me to be a strong authority in favor of the defendant's contention is the case of Tompson v. Dashwood, ii Q. B. D. 43. There the judges distinguish between the writing and the publication of the libel, and speak of the writing as having been on a privileged occasion. I cannot follow their rea- soning. The cause of action in libel is, as I said at the beginning of my judgment, not the writing but the publication of the libel ; and the question is not whether the writing, but whether the publication is on a privileged occasion. The only way to deal with that case in my opinion is to say that we do not agree with it, and that it was wrongly decided. Therefore, in the present case, when it was proved to the judge that the libel was published by the defendants e 11^2 COLEMAN V. MAC LENNAN. to the board of guardians, who had no interest in the matter nor any duty or power to deal with it, then, without more, he ought to have held that the occasion was not privileged, and there was no further question to try as to privilege. Davey, L. J. I am of the same opinion. I do not think it nec- essary to state the reasons for my opinion at length. I desire, how- ever, to say that I agree with the Master of the Rolls in thinking that the judgment in Tompson v. Daslnvood, ii Q. B. D. 43, can- not be supported. It is not the writing of a libel which is actionable, but the publication of it. The question, whether the occasion on which such publication takes place is privileged, depends, in my opinion, on the question whether there is in fact an interest or duty in the person to whom the libel is published : I cannot think that the mistake of the defendant in addressing the communication to the wrong person, or his belief, however honest, that the person to whom it is published has a duty or interest in the matter, can make iiDy difference with regard to the question whether the occasion is privileged. COLEMAN V. MacLENNAN. Supreme Court of Kansas, 1908. 78 Kans. 711. BuRCH, J. The plaintiff argues that the defense of privilege was destroyed by the fact that the copies of the defendant's news- paper circulated in other states, complains of the instructions given upon the subject, and insists that the instruction oft'ered by him should have been given. The instruction given was correct and follows the rule announced by this court in Redgate v. Roiish, 61 Kans. 480. There a matter of interest to communicants of a church was published in the church papers in Indiana, Ohio, Texas and Nebraska. It was inevitable that they should be read by people of other denominations. The syllabus reads : "Where the publication appears to have been made in good faith and for the members of the denomination alone, the fact that it incidentally may have been brought to the attention of others than members of the church will not take away its privileged character."^ This accords with the gen- eral rule stated in 25 Cyc. Law & Proc. p. 387. See also Hatch v. Lane, 105 Mass. 394; Menters v. Bee Publishing Co., 5 Nebr. (Unof.) 592. In the cases of State v. Haskins, 109 la. 656, Buck- staff y. Hicks, 94 Wis. 34, and Sheftall v. Central R. Co., 123 Ga. 589, language is used from which it might be inferred that the privi- lege will be destroyed if the communication should reach the eyes of others than persons interested.- This would be the end of privi- \ Accord: Shurtlcff \. Stevens, 51 Vt. 501 (1879), similar facts. ■See accord: Jones, Varnum & Co. v. Townscnd, 21 Fla. 431 (1885), scvible, and see Duncomhe v. Daniel, 8 C. & P. 222 (1837). 1 W. W. & H. 101. the procurement of the publication in the public newspapers of an attack on a candidate for Parliament held not privileged, though it is doubtful whether the decision went on the ground of excessive publication to those not concerned as electors or on the ground that the statements attacked the can- didate's private rather than his public character; and Pierce v. Ellis, 6 Ir. C. MALICE. 1 1 53 lege for all newspapers having circulation and influence. Gen- erally the publication must be no wider than will meet the require- ments of the moral or social duty to publish. If it be designedly or unnecessarily or negligently excessive, privilege is lost. But, if a state newspaper published primarily for a state constituency have a small circulation elsewhere, it is not deprived of its privilege in the discussion of matters of state-wide concern because of that fact.^ (b) "Malice.' Parson Prick's Case, cited in Cro. Jac. 91. Coke cited a case, where Parson Prick in a sermon recited a story out of Fox's Martyrology, that one Greenwood, being a perjured person, and a great L. 55 (1856), where the defendant handed, to newspaper reporters a copy of his speech made at a public meeting called to petition Parliament, and com- pare Hunt v. Bennett, 19 N. Y. 173 (1859), where the defendant published in a newspaper an open letter attacking the character of an applicant for ap- pointment by a municipal council to an office in its gift. * See Express Printing Co. v. Copeland, 64 Tex. 354 (1885). In Marks V. Baker, 28 Minn. 162 (1881), it was held that citizens had the right to pub- lish in a local paper an article containing statements defamatory of a candi- date for a local election office. The insertion in a newspaper of an adver- tisement of purely private concern was held by EUenborough, C. J. in Brown V. Croome, 2 Starkie 297 (1817), to be justitiable only if the defendant showed that "such publication was the only eiTectual means of accomplishing his object" of giving information to the persons to whom it was proper for him to convey it, and it was there held that it was not necessary for the defend- ant to do so in order to convene a meeting of the plaintiti's creditors, of whom he was one, and it was doubted in Lay v. Lazason, 4 A. & E. 795 (1836), whether newspaper advertisement was ever justified to protect or further a purely private interest. The later American cases, however, hold that it is for the jury to say whether the advertisement is a reasonable or necessary method of giving notice to those interested or whom the defendant must no- tify to protect his interests. Hatch v. Lane, 105 Mass. 394 (1870), defendant inserted an advertisement warning his customers against paying bills to a discharged employee; Llolliday v. Ontario farmers Mutual Insurance Co., Z3 U. C. Q. B. 558 (1873), scmble ; see also Redgate v. Roush and Shurtlcff v. Stevens, 51 Vt. 501, and the publication of such advertisements by a news- paper is also privileged, Comnionwealth v. Featherston, 9 Phila. 594 (Pa. 1872), advertisement warning the public against negotiating notes alleged to have been fraudulently procured by the plaintiff. In Sniith v. Streatficld, L. R. 1913, 3 K. B. 764, it !s held that the malice of the author of a privileged com- munication destroys the privilege of a newspaper publishing it in good faith, see Thomas v. Bradbury, Agnew & Co., L. R. 1906, 2 K. B. 627. In S he f tall v. Central R. Co., 123 Ga. 589 (1905), it was held that the defendant, though privileged to communicate to all employees, concerned with the validity of tickets, its suspicion that a discharged conductor had appro- priated tickets which he might put in circulation, could not do so by posting placards which it knew or should have kno^vn would be also read by other employees, and see P. IV. & B. R. Co. v. Quigley, 21 How. 202 (U. S. 1858), and as to the right of commercial agencies to circulate information as to the tinancial standing of business men and hrms among all their subscribers, many of whom are not concerned in the particular information furnished, see Taylor v. Church, 8 N. Y. 452 (1853) : Sunderlin v. Bradstrecf, 46 N. Y 188 (1871) ; Commonwealth v. Stacev, 8 Phila. 617 (Pa. 1871) ; King v Pat- terson, 49 N. J. L. 417 (1887) ; Bradstreet Co. v. Gill, 72 Tex. 115 (1888) • Pollasky v. Minchener, 81 Mich. 280 (1890) ; Mitchell v. Bradstreet Co 116 Mo. 226 (1893). 1 154 CASES ON TORTS. persecutor had great plagues inflicted upon him, and was killed by the hand of God; whereas in truth he never was so plagued, and was himself present at that sermon; and he thereupon brought his action upon the case, for call- ing him a perjured person : and the defendant pleaded not guilty. And this matter being disclosed upon evidence, Wray, Chief Justice, delivered the law to the jury, that it being delivered but as a story, and not with any malice or intention to slander any, he was not guilty of the words maliciously; and so was found not guilty. 14 Hen. 6 pi. 14. 20 Hen. 6 pi. 34. — And Popham affirmed it to be good law, when he delivers matter after his occasion as mat- ter of story, and not with an intent to slander any. — Wherefore, for these reasons, it was adjudged for the defendant.^ Bayley, J. in Bromage v. Prosser (1825), 4 B. & C. 247: That malice, in some sense, is the gist of the action, and that therefore the manner and occa- sion of speaking the words is admissible in evidence to show they were not spoken with malice, is said to have been agreed (either by all the judges, or at least by the four who thought the truth might be given in evidence on the general). In Smith v. Richardson, Willes, 24; and it has been laid down in 1 Com. Dig. action upon the case for defamation, G 5, that the declaration must show a malicious intent in the defendant, and there are some other very useful elementary books in which it is said that malice is the gist of the action, but in what sense the words malice or malicious intent are here to be understood, whether in the popular sense, or in the sense the law puts upon those ex- pressions, none of these authorities state. Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle, without knowing whose they are; if I poison a fishery, without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse. And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an in- jury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? But in actions for such slander as is prima facie excusable on account of the cause of speaking or writing it, as in the case of servant's characters, confidential advice, or communications to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff, and in Edmondson v. Stevens, Bull. N. P. 8, Lord Mansfield takes the distinction between these and ordinary cases of slander. Buller, J., repeats in Pasley v. Freeman, 3 T. R. 61, that for words spoken confidentially upon advice asked, no action lies, unless express malice can be proved. So in Hargrave v. Le Breton, 3 Burr. 2425, Lord Mansfield states that no action can be maintained against a master for the character he gives a servant, unless there are extraordinary' circumstances of express malice. But in an ordinary action for libel or for words, though evidence ^ So in Crawford v. Middlctou, 1 Lev. 82 (1674), where the plaintiff was nonsuited on the ground that the defendant, who had said that the plaintiff had been hanged for stealing a horse, had, as it appeared on the evidence, spoken the words in genuine grief and sorrow at the news. MALICE. 1 155 of malice ma}' be given to increase the damages, it never is considered as essential, nor is there any instance of a verdict for a defendant on the ground of want of malice. BuRCH, J. in Coleman v. MacLennan, 78 Kans. 711.* With all due deference to Upton v. Huntc,' the remarks quoted read as if the}' had been written in the midst of the fog of fictions, inferences and presumptions which enshroud the law of libel. Facts and the truth never have been much in favor in that branch of the law. Its early use as a weapon and shield of caste and arbitrary power would have been impaired. Suppose a serious charge to be made : By a fiction it is presumed to be false. By a fiction malice is inferred from the fiction of falsity. By a fiction damages are assumed as a consequence of the fictions of malice and falsity. Publication only is not presumed, and until recent times the offer to show the truth of the charge as having some bearing upon liability was a sacrilegious insult to this beautiful and symmetrical fabric of fiction. Then a defendant was made to suffer additional smart for venturing to obtrude the truth as a defence if, although his proof were abundant, he barely failed, in the opinion of the jury, to make out a preponderance. It is, however, in the field of malice, where the rule stated in the quotation lies, that truth and fact are most super- fluous. In the first place it is said that malice is the gist of the action for libel. This is pure fiction. It is not true. The plaintiff makes a complete case when he shows the publication of the matter from which damage may be inferred. The actual fact may be that no malice exists or could be proved. Frequently libels are published with the best of motives, or perhaps mistakenly or inadvertently but with an utter absence of malice. The plain- tiff recovers just the same. Therefore "the gist of the action" must be taken out of the case. This is done by another fiction. It is said that of course malice does not mean the one thing known to fact or experience to which the term may apply, but it is just a legal expression to denote want of legal ex- cuse. In this state a statutory definition of libel making malice an essential ingredient as at the common law compels this court to say that the intentional publication of libelous matter implies malice, whatever the motive may be. (TJie State v. Clyne, 53 Kans. 8, 35 Pac. 789.) So, a fiction was invented to meet an unnecessary fiction \vhich became troublesome, and the courts go on gravely ascending the hill for the purpose of descending, meanwhile filling the books with scholastic disquisitions, verbal subtleties and refined distinc- tions about malice in law, malice in fact, express malice, implied malice, etc., etc. Now, what is the fact? Instead of malice being the gist of the action it may come into a libel case and be of importance in two events only: to affect damages, and to overcome a defense of privilege. If the occasion be abso- lutely privileged, there can be no recovery. If it be conditionally privileged, the plaintiff must prove malice— actual evilmindedness— or fail. When it For the facts of the case and so much of the opinion as deals with the existence of a privilege to communicate to electors information as to candi- dates for elective office, see ante, p. 1070. ^ In 24 Ore. 420, the remarks quoted are "The only safe evidence of a •nan's intentions are his acts, and if he accuses another of a crime he must conclusively be presumed to have intended to injure him." I 156 LANCASTER V. HAMBURGER. comes to this proof there is no presumption, absolute or otherwise, attaching to a charge of crime. The proof is made from an interpretation of the writing, its mahgnity or intemperance, by showing recklessness in making the charge, pernicious activity in circulating or repeating it, its falsit}-, the situation and relations of the parties, the facts and circumstances surround- ing the publication, and by other evidence appropriate to a charge of bad motives, as in other cases." LANCASTER v. HAMBURGER. Supreme Court of Ohio. 1904. 70 Ohio St. 156. Error to the Superior Court of Cincinnati. Lancaster brought suit against Hamburger, the stibstance of the allegations of his petition being, that he had, for a long time, been in the emplo}^ of the Cincinnati Street Railway Co. in the canacity of a conductor: that the defendant, who had conceived a violent dislike to him, and who had repeatedly threatened to pro- cure his discharge from said employment, did, without excuse, cause, or justification, and actuated solely by a maliciotis desire to injure plaintiff, falsely and maliciously say to the superintendent of said company that plaintiff, while on duty as conductor, had been guilty of misconduct and of violation of the rules of the company, in consequence of which charge plaintiff was, on that day, discharged from said employment, to his damage in the stim of ten thousand dollars. The defendant, answering, denied the allegations of malice, and averred that while he and others were traveling as passengers on the car of said company which was in charge of plaintiff as con- ductor, the plaintiff' was guilty of rude and ungentlemanly conduct toward them, which defendant reported to the superintendent of the company, and that the suoerintendent. after investigating the subject, discharged the plaintiff from the company's service. The plaintiff excepted to tlie charge of the court, the material portion of which is the following instruction given at the renuc^t of the defendant: "It was the duty of the plaintiff not to conform to any fanciful degree of conduct, nor to observe the degree of con- duct which, perhaps, we would like to observe at all times as ideal, but he was obliged to observe such degree of deportment, decorum, noliteness and courtesy as is common among ordinary men in their dealings with one another : and if he failed to observe such a stand- ard, then he wotild be guilty of rudeness and the defendant in the case would have a right to make complaint. The jury returned a verdict for the defendant and. the plain- tiff's motion for a new trial having been overruled, judgment fol- lowed the verdict. The judgment was affirmed by the superior court at general term. Sttauck, J. (After commenting tipon the cases of Allen v. Flood, 1898, A. C, I, and Ouinn v. Leathern, 1901, A. C, 495.) Xeither of these cases, nor any of the others cited by counsel fo; the plaintiff, can have the effect to disturb the rule generally recognized and well established in this state, that it is immaterial what motive LANCASTER V. HAMBURGER. 1 157 one is prompted in the exercise of a clear legal right or the per- formance of a duty. Fracicr v. Brozcii, 12 Ohio St. 294; Letts v. Kcsslcr, 54 Ohio St. y^, ; Kclley v. The Ohio Oil Co., 57 Ohio St. i2j.^ Certainly the motive which prompts one to the commission of a wrongful act may be very material, for it may determine whether the injured party may recover exemplary, or only compensatory damages. The record does not admit a doubt that the defendant exercised a legal right, if, indeed, he did not perform a duty in making complaint to the superintendent of the company of the plaintiff's misconduct. The evidence tended to show, and the in- struction required the jury to find, that the plaintiff had been guilty of the misconduct of which complaint \\as made. The defendant and his wife were patrons of the street railway company, a common carrier of passengers, and entitled, in common with the public gen- erally, to civil treatment while aboard its cars, and to the benefit of the rules designed for the safety and comfort of passengers. The plaintiff* was the representative of the company who came in con- tact with its patrons, and tlirough whoikit discharged some of the most important duties it owed the public. Since it would not be l)racticable for the company to institute and maintain such super- vision of the conduct of all its conductors as would secure the full ])erformance of all their duties toward passengers, the patrons of the road should be encouraged to report their misconduct fairly and justly: nor should a patron of the company be required, by the consciousness of ill wnll toward the offender, to abstain from mak- ing a truthful report of such misconduct. Seeing that such miscon- duct naturally arouses resentment in all who observe it, it would result, from the contrary rule, that a conductor's immunity from complaint w^ould be in proportion to the offensiveness of his mis- conduct. Judgment affirmed." ^ See Fowler v. Jenkins, 24 Pa. 308 (1855), where the defendant removed a fence wrongfully erected by himself and the plaintiff on a public highway. So the motive which inspires a man to take sucli action as the law permits to protect his person or property from wrongful interference or intrusion, is immaterial. Brothers V. Morris, 49 Vt. 460 (1877) ; Kiif v. Youmaus 86 n' Y. 324 (1881), semble: Oakes v. Wood, 2 M. & W. 791 {1837), the defendants, occupiers of land, expelled a trespasser. "If the defendant had a justifiable cause for turning the party out. the motive was wholly immaterial; even though he did it in pursuance of an old grudge, it makes no difference, as long as he did no more than was necessary to turn her out." — Parke B Humplirey v. Douglass, 11 Vt. 22 (1839), defendant turned off his farm a horse wrongfully intruding thereon; Sntitli v. .lohnson, 76 Pa. St. 191 (1874), landowner removed an encroaching fence, compare Jenkins v. Fowler 24 Pa' St. 308 (1855) ; Clinton v. Myers, 46 X. Y. 511 (1871), riparian owner' opened gates in a dam, which obstructed the natural flow of the stream. So a land- owner may, without regard to his motive, do any act necessary to prevent another acquiring an easement over it, Mohan v. Brown, 13 Wend 261 (N Y 1835), semble: Phelps v. Nou'len, 72 N. Y. 39 (1878). "In an action of Slander or Libel if the truth of the defamatory state- ments be specially pleaded and "the jury are satisfied that the words are true in substance and fact, they must find for the defendant, though they feel sure that he spoke the words spitefully and maliciously"— Odgers, Libel and Slander. 4th ed., 1913. As to the law of Quebec, see Trudel v. Viau Mont- real L. R.. 5 Q. B. 502 (1889) ; Jeannotte v. Gaiithier, :Montreal L R 1«97 6 Q. B. 520. 1 158 FAIIR V. HAYES. BRADLEY v. HEATH. Supreme Judicial Court of Massachusetts, 1831. 12 Pick. 163. Shaw, C. J. Where words imputing misconduct to another, are spoken by one having a duty to perform, and the words are spoken in good faith, and in the behef that it comes within the dis- charge of that duty, or where they are spoken in good faith, to those who have an interest in the communication and a right to know and act upon the facts stated, no presumption of mahce arises from the speaking of the words, and therefore no action can be maintained in such cases, without proof of express mahce. If the occasion is used merely as a means of enabling the party uttering the slander to indulge his malice, and not in good faith to perform a duty or make a communication useful and beneficial to others, the occasion will furnish no excuse. Bromage v. Prosser, 4 Barn. & Cressw. 247 ; Starkic on Slander, 200. We think the case must be governed by this rule. The charge in the first two counts was, that the plaintiff had put two votes into the ballot box. It appears that the defendant was one of the select- men of the town, and that the words were spoken in an open town- meeting during an election, at which the defendant was acting in his capacity as a public officer. It appears to us that this falls under both branches of the rule stated. It is therefore to be deemed a privileged communication. Such being the occasion of speaking the words, as it appeared on the proof of the plaintiff's case, any evidence which tended to prove that the defendant was acting in good faith, in the discharge of his duty, was competent to repel the charge of express malice, or colorable pretence, ^^'ith this view it was competent to show that the manner of the plaintiff's voting at the time the words were ut- tered, was such as to excite suspicion and induce a belief, that the plaintiff put in more votes than one. It was in effect proof of prob- able cause, which is allowable, when the occasion of sj^eaking the words affords prima facie evidence of an excuse for speaking them. Remington v. Congdon, 2 Pick. 310. And we think that this in no degree impugns the rule, that in ordinary actions of slander, where the occasion furnishes no prima facie excuse, the truth of the words spoken cannot be given in evidence under the general issue. ^ FAHR V. HAYES. Supreme Court of New Jersey, 1888. 50 N. 7. L. 275. DixON, J. So much being established on behalf of the defend- ant, it then became incumbent on the plaintiff to show that the de- ^ So comment otherwise fair loses its immunity if shown to be inspired by actual malice, Thomas v. Bradbury, Agnew & Co., L. R. 1906. 2 K. B. 627; Tawney v. Simonson, IVhitcoiub & Hurley Co., 109 Minn. 341 (1909). OVER V. SCHIFFLING. 1 1 59 f amatory words were uttered out of what is called express malice. If he produced any evidence from which express malice could le- gally be inferred, then it was proper to submit the question to the jury; if he did not, a verdict for the defendant should have been directed. By express malice in this connection is meant some motive, ac- tuating the defendant, different from that which prima facie ren- dered the communication privileged, and being a motive contrary to good morals.^ The motive which in the present case the law prima facie imputes to the defendant, in regarding his conduct as innocent, is a desire to give Thoma (who had made inquiries of the defendant as to the credit of the plaintiff, a former customer of the defendant's) true information, in order to prevent his crediting the plaintiff, wdiom the defendant thought not worthy of credit, and hence the question here is w^hether the evidence tended to establish any other motive contrary to good morals. The language used by the defendant fairly discloses another motive than the imputed one, not indeed inconsistent, but rather conjoined with it, viz., indignation towards the plaintiff for his .supposed crime. This motive, however, is not contrary to good morals, and therefore cannot be ranked as malicious per^ se, and so long as it does not impel its possessor into an illegal act it cannot subject him to the condemnation of the law. At the time now un- der review it did not betray the defendant into any expression be- yond what was pertinent to the subject of Thoma's inquiry, and was honestly believed by the defendant and therefore was legalized by the privileged occasion and motive.^ OVER V. SCHIFFLING. Supreme Court of Indiana, 1885. 102 hid. 191. Elliot, J. The complaint of the appellee alleges that the ap- pellant maliciously published a libel; that the libellous matter was contained in a letter written by the latter to a corporation called the Encaustic Tile Company, by whom the appellee was then employed. The letter, omitting the date, address, signature and formal part, is as follows : "Mr, Schiffling owes me on work done on your dies, etc., $33. ^ It is not necessary that the communication be inspired by personal ill- v/ill or animosity toward the plaintiff, Gatiis v. Kilgo, 128 N. Car. 402 (1901). p. 407, where it was held that the trial judge had properly refused the de- fendant's request for an instruction, that "malice in fact means personal ill- will and a desire to injure the plaintiff," saying "that if the publication was not in good faith for the reason claimed, but from a wrongful, indirect and ulterior motive and was false, the same was malicious"; Rlnmhardt v. Rohr, 70 Md 328 (1889) : Hellsteru v. Katcer, 103 Wis. 391 (1899) ; but see Bacon V. Mich. Cent. R. Co., 66 Mich. 166 (1887). 'In Cranfill v. Haydcn, 97 Tex. 544 (1904), it is held the desire to injure the plaintiff need not be the sole or even the dominant motive. The de- fendant is protected only when the desire to perform his duty is his sole motive for making the communication. Il60 CLARK V. MOLYNEUX. If you would consent to retain such amount out of any money due him from you, let me know by return mail. If you will not consent to do so, I shall have to file a mechanic's lien on the goods. He got them of me by lying ; first, he said he would bring an order from you, then he would pay cash for them before he took them away. He then watched his chances and took them when the foreman was not in, and now refuses payment." It is also alleged that the appellee was dismissed from the serv- ice of the corporation to whom the letter was addressed, and he demanded special and general damages. The letter was not a privileged communication. The informa- tion it professes to contain was volunteered, and the purpose for which it was conveyed to the appellee's employer was solely for the benefit of the writer, and was not intended to benefit the em- ployer by giving him, in good faith and for a just purpose, infor- mation necessary for his protection against a knavish servant.^ CLARK V. MOLYNEUX. Court of Appeal, 1877. Law Reports 1877-78, 3 Q. B. Div. 237. The action was for slander and libel. The plaintiff, a clergyman of the Church of England, had been formerly in the army and after taking his degree at Cambridge was ordained and became curate at Assington to the Reverend H. L. Maud. In 1876, the defendant, the Reverend Canon Molyneux, the Rector of Sudbury near Assington, in calling on a Mr. Bevan with whom he had been intimate for many years, was informed by him that the plaintiff was going to preach at Newton Church in the neighborhood and that he was sure that if Mr. Charles Smith, the rector, knew what sort of a person the plaintiff was he would never permit him to preach. Mr. Bevan asked the defendant as an old friend of Mr. Smith's to let him know what the plaintiff's char- ^ Accord: Hollenbeck v. Ristine, 114 Iowa 358 (1901), similar facts; Beals V. Thompson, 149 Mass. 405 (1889), similar statements made to plain- tiff's husband in an effort to induce him to pay a debt contracted by her be- fore her marriage; but see Fairjjian v. Ives, 5 B. & Aid. 642 (1822), where a letter to the plaintiff's commanding officer complaining of his refusal to pay a debt to the defendant and asking such officer to enforce payment, was held privileged. So it was held that a communication by the defendant, a rival trader, of statements derogatory to the plaintiff's goods "from motives of per- sonal gain to be secured through injury to a rival in business" was not privi- leged, Brozvn v. Vannaman, 85 Wis. 451 (1893) ; and see Hubbard v. Rtitledge, 57 Miss. 7 (1879). In Hooper v. Truscott, 2 Bing. N. C. 457 (1836), a charge of felony made to the plaintiff's relatives to induce them to pay hush money was held not to be privileged; see also, Smith v. Hodgekins, Cro. Car. 273 (1633), and in Jack- son V. Hoppcrton, 16 C. B. (N. S.) 829 (1864), the fact that the defendant did not make his charge against the plaintiff' till she threatened to leave his service, and told her that he would say nothing about it if she returned and would give her a reference if she confessed, was held suff.cient evidence of malice to support a verdict for the plaintiff. I CLARK V. MOLYXEUX. II61 acter was. The defendant placing implicit reliance upon Mr. Bevan and thinking it was his duty to accjuaint ]vlr. Charles Smith of the matter, went to his house and finding him ill in bed communicated his information to Mr. Smith's son, also a clergyman, who was there. The defendant afterwards consulted his rural dean as to whether he should speak to the plaintiff's rector Mr. Maud, the dean advised him to do so. As Mr. Maud was abroad the defendant spoke to his solicitor on the subject and on Mr. Maud's return he received a letter from him asking for information and wrote an answer detailing the facts as stated by Mr. Bevan. The defendant also consulted his curate who had been with him for many years and whom he invariably consulted about all church matters. The communications to the curate, to Mr. Smith's son and to the dean were the slanders complained of, and the letter to Mr. Maud was the libel complained of. The defendant relied solely upon the privi- lege of the occasion and bona fides of his statements. The action was tried before Baron Huddleston and a special jury. The learned judge ruled that all the occasions were privileged and the case went to the jury on the question of express malice. The jury found a verdict for the plaintifif for £200 damages. The defendant moved for a new trial in the Queen's Bench Division on the ground that the verdict was against the weight of the evidence and of the misdirection of the court complaining of the general tenor of the summing i:p and particularly the following passage therein : "You, Mr. Molyneux, may defend yourself by the fact that these occasions were privileged, but to do so ;yOU must satisfy a jury that what you did you did bona fide and in the honest belief that you were making statements which were true. * * * What you have to consider is this : assuming that these occasions were privileged, do you think that the defendant made these statements and wrote this letter bona fide and in the honest belief that they were true, not merely that he believed them himself, but honestly believed them — which means that he had good ground for believing them — to be true? I mean to say that if he pertinaciously and ob- stinately, perhaps, persua ded_himself_ o f a matte r for which per^ suasion he had no reasonable ground, and with respect to which per- | suasion you twelve genHemeo would say he was perfectly unjus- tified * "' * then your verdict will be for the pl aintiff." J, The court ref use(rfTie~ruTe^ and the defendant appealed. Bramwell, L. J. Before I proceed further in discussing the language of the summing-up, I wish to remark that a person may honestly make on a particular occasion a defamatory statement without believing it to be true ; because the statement may be of such a character that on the occasion it may be proper to com- municate it to a particular person who ought to be informed of it. Can it be said that the person making the statement is liable to an action for slander? In the present case the judge asked the jury whether the defendant did what is complained of in the honest be- lief that what he wrote and said with reference to the plaintiiT was true. At a later period of the summing-up the judge explains what Il62 CLARK V. MOLYNEUX. he means by honest behef ; and the effect of his language is, that the jury must have been led to think that "honest belief" means, not the actual belief in the defendant's mind, but belief founded upon reasonable grounds. Apart, therefore, from the question upon whom the burden of proof lay, I think there was a misdirec- tion as to the meaning of the term "honest belief," and that the verdict against the defendant cannot stand. Brett, L. J.^ I am of opinion that there was a misdirection by the learned judge to the jury ; that the verdict was against the weight of the evidence ; and that there was no evidence of malice which ought to have been left to the jury. With regard to the misdirection, we do not differ from the Queen's Bench Division as to the rule of law which governs this case, but we think that the direction of the learned judge was cal- culated to mislead the jury as to what was the right question for their decision. The direction to the jury was founded on the as- sumption that the occasions were privileged, and that which must be taken to be a libel would be excused if the defendant had used the privilege fairly and honestly. Before I address myself to the summing-up, I think it advisable to lay down what I consider would be a true exposition of the law in such matters. When there has been a writing or a speaking of defamatory matter, and the judge has held — and it is for him to decide the question — that al- though the matter is defamatory the occasion on which it is either written or spoken is privileged, it is necessary to consider how, al- though the occasion is privileged, yet the defendant is not permitted to take advantage of the privilege. If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion for some indirect and wrong motive. (One, but by no means the only, indi- rect motive which can be alleged, is the gratification of some anger or malice of his own.) If he uses the occasion to gratify his anger or malice, he uses the occasion not for the reason which makes the occasion privileged, but for an indirect and wrong motive.^ If the indirect and wrong motive suggested to take the defamatory matter out of the privilege is malice, then there are certain tests of malice. Malice does not mean malice in law, a term in pleading, but actual malice, that which is properly called malice. If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thenceforth that he was malicious, that he did do a wrong thing for some wrong motive. So if it be ^ Those portions of the opinion of Brett, L. J. which are enclosed in brackets are taken from the report of the case in 47 L. J., C. L. 238. ' The fact that the defendant was angry when he made the statements is sufficient evidence of malice to support a verdict, Robinson v. Van Auken, 190 Mass. 161 (1906), or that he had expressed a desire to injure the plaintiff, HoUenbeck v. Ristine, 105 Iowa 488 (1898), or that he had made other de- famatory statements or repeated the same charges on prior or subsequent oc- casions, Tarpley v. Blabey, 2 Bing. N. C. 437 (1836) ; Seaman v. Netherclift, L. R. 1 C. P. D. 540 (1876) ; Evening Journal v. McDermott, 44 N. J. L. 430 (1882), unless such occasions were themselves privileged, Fahr v. Hayes, SO ^ CLARK 1'. MOLYNEUX. I163 proved that out of anger, or for some other wrong motive, the de- fendant has stated as true that yy-hich he does not kn ow to be true," or he has stated it whether it is~true oiMiot^recklessIj^^ reason of his anger or other motive, the jury niay infer tliathe used the oc- casion, not for the reason which justiik^TtTturt for the gratification of his anger or other indirect motive. "iTthink: I have laid down the correct rule on which to ground the direction to the jury, and I think the learned judge did not follow that rule, but he so expressed himself that the jury would be misled into following other rules. I think the jury were misled into believing that the burden of proof, that the defendant was not actuated by malice in the statements he had made, lay upon the defendant rather than on the plaintifif. I apprehend the moment the judge rules that the occasion is privileged, the burden of showing that the defendant did not act in respect of the reason of the privilege, but for some other and indirect reason, is thrown upon the plaintiff.-* I also think that the learned judge was mistaken in the definition of malice he gave to the jury, and the jury might have been misled by his leaving to diem to apply that definition to the question of what was malice in fact. I am N. J. L. 275 (1888), p. 281, or that the relation between the parties was strained, Thomas v. Bradbury, Agnezv & Co., L. R. 1906, 2 K. B. 627, Dickson V. Earl of Wilton, 1 F. & F. 419 (1859), or that they had quarreled, Rogers v. Clifton, 3 B. & P. 587 (1803), or that the plaintiff had given the defendant cause to desire revenge. Comfort v. Young, 100 Iowa 627 (1897), where the plaintiff had caused the defendant to be prosecuted for operating a creamery on Sunday or any other fact from which the existence of ill-will on the de- fendant's part can be legitimately inferred, Kelly v. Partington, 4 B, & Ad. 700 (1833) ; Hemmings v. Gasson, E. B. & E. 346 (1858) ; McGaiv v. Hamil- ton, 184 Pa. St. 108 (1898). As to eft'ect of the fact that the information is volunteered as evidence of malice, see Pattison v. Jones, ante, p. 1096. ^Accord: Briggs V. Garrett, 111 Pa. St. 404 (1886), "a lie is never privi- leged," "it is mistakes, not lies, that are protected under the doctrine of privi- lege"— Paxson. J., p. 414; Gassett v. Gilbert, 6 Gray 94 (Mass. 1859) ; State v. Schmitt, 49 N. J. L. 579 (1887), and see Holmes v. Clisby, 121 Ga. 241 (1904), p. 246. *If the court finds that the occasion is privileged the burden of proving malice rests on the plaintiff, Bearce v. Bass, 88 Maine 521 (1896) ; Hagan v. Hendry, 18 Md. 177 (1862) ; Simmons v. Holster, 13 Minn. 249 (1868) ; King V. Patterson 49 N. J. L. 417 (1887) ; Barry v. McCollom, 81 Conn. 293 (1908) ; McDavitt v. Bo\er, 169 111. 475 (1897) : Jenoure v. Dehnegc, L. R. 1891. A. C. 7Z', Bacon v. Michigan Cent. R. Co., 66 Mich. 166 (1887) ; Hemmens v. Nelson, 138 N. Y. 517 (1893) ; Gray v. Pentland, 4 Serg. & R. 420 (Pa. 1819) ; Brock- ennan v. Keyser, 8 Legal Int. 238 (Pa. 1851) ; Missouri Pac. R. Co. v. Rich- mond, 73 Tex. 568 (1889) ; Strode v. Clement. 90 Va. 553 (1894) ; Chambers v. Leiser, 43 Wash. 285 (1906); Locke v. Bradstreet Co., 22 Fed. 771 (1885). Contra: Wakefield v. Smithwick, 49 N. Car. 327 (1857) ; and see Alwater v. > Morning News Co., 67 Conn. 504 (1896) ; and this requires the plaintiff, if he questions the defendant's belief in the truth of his statements, to prove that the defendant had no honest belief, Jenoure v. Dclmege, L. R. 1891, A. C. 73. In Conroy v. Pittsburgh Times, 139 Pa. St. 334 (1891), it is held that where the alleged libel or slander charges an indictable offense, there is a presumption of innocence thereof, throwing on the defendant the burden of proving that the charge was made in good faith and on probable cause, see contra, McDavitt V. Bover, 169 111. 475 (1897), and such accusations can only be justified by proof of such probable cause for believing them. Shelly v. . ainpvian, 1 Pa. Sup. Ct. 115 (1896), and such inquiry as would justify in- I 164 CLARK V. MOLYNEUX. further of opinion that the direction to the jury — that assuming that the occasions were privileged if they thought that the defend- ant wrote the letter, and made the statements bona fide, and in the honest belief that they were true, not merely that he believed them himself, but honestly believed them, which means that he had good grounds for believing them to be true, — left the jury to sup- pose that, although the defendant did believe them in fact, yet that did not protect him unless his belief was reasonable : whereas the only question was whether the defendant did, in fact, believe what he said, and not whether a reasonable man would have believed it. The question of wilful blindness, or of an obstinate adherence to an opinion, may be tests by which a jury may be led to consider whether the defendant did or did not really believe the statements he made;" whereas the learned judge, by the way in which he di- rected the jury, left them to understand, as I think, that although the defendant did believe the statements, yet if his belief was founded on a wrong reasoning that he was not within the protection of the privilege. (Questions of pig-headedness and obstinacy may be tests as to whether a man really did honestly believe or not, but Baron Huddleston left them as if they were of the essence of the definition of malice.) In that respect, with great deference I think, the learned judge's direction to the jury was erroneous.® stituting a prosecuticn, 'Neeh v. Hope, 111 Pa. St. 145 (1886), semble, Ingram V. Reed, 6 Pa. Sup. Ct. 550 (1897) ; Collins v. Morning News, 6 Pa. Sup. Ct. 330 (1898), and see Coates v. Wallace, 4 Pa. Sup. Ct. 253 (1897), holding that one publishing statements aspersing the character of a candidate for office must show the circumstances which led him to beUeve his charges to be true. ^ The facts within the defendant's knowledge are always admissible to prove or disprove the absence of honest belief, Fountain v. Boodle, 3 A. & E. (N. S.) 5 (1842); Gassett v. Gilbert, 6 Gray 94 (Mass. 1858); Bradley v. Heath, 12 Pick. 163 (Mass.); Atzvill v. Mackintosh, 120 Mass. 177 (1876); Wagner v. Scott, 164 Mo. 289 (1901). especially where the charge is against a public officer. Fairman v. Ives, 5 B. & Aid. 642 (1822) ; Robinson v. Max, 2 Smith 3 (1804). See also Sunley v. Met. Life Ins. Co., 132 Iowa 123 (1906), in which it is assumed that the fact that the plaintiff had properly accounted with the defendant's agent was equivalent to knowledge on the part of such agent of the true state of that account. ^ The defendant's belief may be founded on hearsay, Aberdein v. Mac- leay, 9 Times L. R. 539 (1893) ; Briggs v. Garrett, 111 Pa. St. 404 (1886) ; Maitland v. Bramwcll, 2 F. & F. 623 (1861), and this though the defendant's only ground of her belief is her implicit confidence in her informant, Hes- keth V. Brindle, 4 Times L. R. 199 (1888), a daughter writing under her own name at her father's dictation, though it is better to state the source of one's information, as by producing or quoting the letter which conveys the in- formation, Robshazv v. Smith, 28 L. T. 423 (1878) ; Briggs v. Garrett, 111 Pa. St. 404 ( 1886) ; Elliott v. Garrett, L. R. 1902, 1 K. B. 870, in which it seems to be suggested that it may be the defendant's duty to investigate the truth of the matter stated to him by third persons. But a defendant who signs a letter without taking care to ascertain its contents is not protected by his belief that it contained only statements which he was entitled to communicate and which he believed true, tlolmes v. Clisby, 121 Ga. 241 (1904), and in Met. Life Ins. Co. v. Sunley, 132 Iowa 123 (1906), it was held that the knowledge of the defendant's agent was its knowledge and that a statement made by its home office in good faith m reliance on an agent's report was ma- licious in fact if he knew facts which made it false. The mere fact that the de- fendant admits that he cannot prove the truth of his statements does not TOOTH AKER V. CON ANT. ^165 Assuming that the right question had been left to the jury, is there any evidence to support the finding of mahce? Now, the occasion being privileged, the burden of proof to shou^ that the defendant was not within the protection of the privilege being on the plaintiff, and it being an admitted fact that the defendant did not know the plaintiff, had never even seen him, and that he had no relations with him whatever, and no motive can be suggested why the defendant should have a vindictive feeling against the plain- tiff, 1 think that the discrepancies which were relied upon, and the want of care in instituting inquiries, are too slight to justify a judge in asking the jury Avhether the defendant w^as actuated by indirect motives in making the statements. He certainly did not make them from a want of belief in them, nor was he influenced by anger in making them, not caring wdiether they were true or falseJ TOOTHAKER v. CONANT. Supreme Judicial Court of Maine, 1898. 91 Maine 438. Peters, C. J. The exceptions, in this action of slander, ever so brief, are as follows : "The defendant claimed the words used were privileged, and requested the presiding justice to instruct the jury that the question for them to decide was not whether the language used was true, nor whether the defendant had reasonable ground to believe it to be true, but whether he honestly believed it to be true. This the justice refused to do and instructed the jury that he must have reasonable and probable grounds for his belief or his belief would be no defense. The verdict was for the plaintiff. To which refusal the defendant excepts." There is nothing to inform us what the alleged slanderous words were, nor what the circumstances were under which the words were spoken. While the phrase "honest belief" may be found in legal opinions which undertake to define privileged communications, the phrase without addition or qualification is not adequate and sufficient as a definition of the law of justification for what would otherwise be regarded as slanderous words. A man may inflict an injury upon another without intending any injury, and still be liable for his unjustifiable act. Malice in the popular sense need not appear in order to sustain an action for slander. Even acci- destroy his privilege. Billings v. Fairbanks, 139 Mass. 66 (1885). As to whether mere honest suspicion is enough compare the above case, where the defend- ant accused the plaintiff of theft in the presence of a third person, with Smedley v. Soiile, 125 Mich. 192 (1900), where the accusation was against a public official. 'Accord: Barry v. McCollinn, 81 Conn. 293 (1908); Bays v. Hunt, 60 Iowa 251 (1882) ; Hemmens v. Nelson, 138 N. Y. 517 (1893) ; Haft v. Bank. 19 App. Div. 423 (N. Y. 1897); Chambers v. Leiser, 43 Wash. 285 (1906). In some jurisdictions, while the precise question has not arisen, it is said without qualification that the statement must be made "in good faith". Bacon V. Michigan Cent. R. Co., 66 Mich. 166 (1887) ; Gattis v. Kilgo, 128 N. Car. 402 (1901). Il56 TOOTllAKER Z'. COXANT. dental injuries are actionable unless the person causing the in- jury be free from all fault. Carelessness which causes an injury is generally a sufficient foundation for an action. But a person may through carelessness or negligence commit a wrongful act, and honestly think or believe he is doing no wrong. And the de- fendant here, in order to clear himself from the imputation of care- lessness, should show not only that he was acting in an honest be- lief that the story communicated by him was true, but that there were reasonable grounds to induce such belief. Otherwise, an in- jury might be wrongfully inflicted upon an innocent person and he have no remedy or redress for it. Bearce v. Bass, 88 Maine, 543, is cited by the defense where the learned justice adopted in his opinion the phrase "honest belief," but he added thereto the words, "such belief being founded on reasonable and probable grounds." Exceptions overruled} ^Accord: Hehner v. Gt. Northern R. Co.. 78 Minn. 289 (1899) : Carpen- ter V. Bailey, 53 N. H. 590 (1873) ; Briggs v. Garrett, 111 Pa. St. 404 (1886) ; Mulderig v. Wilkcsbarre Times, 215 Pa. St. 470 (1906); Ranson v. West. 125 Ky. 457, semble. In Carpenter v. Bailey, Briggs v. Garrett and Mulderig V. Times, the defamation published was of a pubhc official or candidate for office, see note 3 to Coleman v. MacLennan, ante, p. 1073, and see Odgers, Slander and Libel, 4th ed., p. 342, citing Fairnian v. Iz'es, 5 B. & Aid. 642 (1822), and Robinson v. May, 2 Smith 3 (Eng. K. B. 1804), and see Smedley V. Soule, 125 Mich. 192 (1900). So it was held in Locke v. Bradstreet Co.. 22 Fed. 771 (C. C East. Dist. of Minn. 1885), and Douglas v. Daisley. 114 Fed. 628 (C. C. A. 1st Circ. 1902), that reports by commercial agencies to their subscribers are only privileged if care is taken to secure and publish reliable information. In McNally v. Burleigh, 91 Maine 22 (1897), it is said that there must be belief "based upon reasonable and probable grounds after a reasonably careful inquiry"; and compare Neeb v. Hope, 111 Pa. St. 145 (1886), with Briggs v. Garrett, 111 Pa. St. 404 (1886) and Evening Post Co. v. Richard' son, 113 Ky. 641 (1902). CHAPTER IV. Acts Necessary to Secure One's Economic Advancement by Acts Necessarily or Intentionally Harmful to Others. SECTION 1. Nature of the Harm Done — Interference With Business or Employment. (a) By inducing third persons to break their contracts with the plaintiff. Form of action given in La Court De Baron, (Circa 1300). The Court Baron (Seldon Soc. Vol. IV) 40. Sir steward, William (Vintner) of Woodstock, who is here, complaineth of (Robert) Baker, who is there, that wrongfully he supplanted him of a ton of wine of a merchant of Southampton, Bernard Taneys by name, which (the plaintiff) bought of him (Bernard) for Z6 s. and gave (earnest) and found pledges to duly pay the said sum on a certain day without any delay; this done, came the said Robert and in despite of (William), who is here, spake so much ill and villany of him to the merchant and drove his own bargain so that the merchant increased the price of the ton to 40 s. ; and the said William hired a cart with four horses for a half-mark to carry the ton from Southampton to his house at Woodstock; and when he came to Southampton he found that owing to what Robert had said the merchant was now of another mind, that he would not let him (have the wine) and told him right out that he heard tell so much evil of him that he would give him no credit; and so (William) returned from the port with the cart he had hired as empty as when he took it thither, and none the less had to pay for its hire on the day fixed for payment; so that wrongfully and without reason did he (Robert) speak evil of and procure evil for him (William) to his damage of 40 s. and shame of 100 s. If confess etc. Tort and force and all that to tort belongeth, defendeth (Robert), who is here, against William of Woodstock, who is there, and his damages of 40 s.. and shame of 100 s. and every penny of it, both against him and against his suit and all that he surmiseth against him; and well he showeth thee that never did he supplant him of the said ton or raise the price against him by 4 s. or any penny as he surmiseth; and of this he is ready to acquit himself in all such wise as this court shall award that acquit himself he ought. Fair friend Robert (saith the steward), this court awardeth that thou be at a law six-handed at the next (court) etc. 1 167 V Il68 LUMLKV V. GVE. LUMLEY V. GYE. Court of Queen's Bench, 1853. 2 Ellis & Blackburn's Reports, 216. Ihe first count of the declaration stated that the plaintiff was lessee and manager of the Queen's Theatre for performing operas for gain to him ; and that he had contracted and agreed with Jo- hanna Wagner to perform in the theatre for a certain time, with a condition, amongst others, that she should not sing nor use her talents elsewhere during the term without plaintiff's consent in writ- ing. y''Yet defendant, knowing the premises, and maliciously intend- ing to injure plaintiff as lessee and manager of the theatre, whilst the agreement with Wagner was in force, and he fore the expiration of the term, enticed and procured Wagner to refuse to perform ; by ■'V means of which enticement and procurement of defendant, Wagner wrongly refused to perform, and did not perform during the term. Count 2. For enticing and procuring Johanna Wagner to con- tinue to refuse to perform during the term, after the order of Vice Chancellor Parker, affirmed by Lord St. Leonard (see Lumley v. Wagner, i DeG. McN. & G. 604), restraining her from performing at a theatre of defendant's. Count 3. That Johanna Wagner had been and was hired by plaintiff to sing and perform at his theatre for a certain time, as the drarnatic artiste of plaintiff, for reward to her, and had become and was such dramatic artiste of plaintiff' at his theatre. Yet defendant, well knowing, &c., maliciously enticed and procured her, then being such dramatic artiste, to depart from the said employment. In each count special damage was alleged. Demurrer. Joinder.^ Erle, J. (The question raised upon this demurrer is, Whether an action will lie by the proprietor of a theatre against a person who maliciously procures an entire abandonment of a contract to perform exclusively at, that theatre for a certain time ; whe;i;^by damage was sustained? And it seems to tpe that it will.J The au- thorities are numerous 'and uniform, that^an action will lie by a master against a person who procures that a servant should unlaw- fully leave his service.-^ (The principle involved in these cases com- prises the present ; for, there, the right of action in the master arises from the wrongful act of the defendant in procuring that the person hired should break his contract, by putting an end to the rdation of employer and employed ; and the present case is the same^ If it is objected that this class of actions for procuring a breach ot contract of hiring rests upon no principle, and ought not to be extended be- yond the cases heretofore decided, and that, as those have related to contracts respecting trade, manufactures, or household service, and not to performance at a theatre, therefore they are no authority for an action in respect of a contract for such performance ; the answer appears to me to be, that the class of cases referred to rests upon the ' The opinion of Crompton, J., is much abridged and that of Wightman, J., is omitted. ^ LUMLKV r. GYE. 1 169 principle that the procurement of the violation of the right is a cause of action, and that, when this principle is applied to a violation of a right arising upon a contract of hiring, the nature of the service con- tracted for is immaterial. ^t is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong, as in violations of a right to prop- erty, whether real or personal, or to personal security : he who pro- cures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of. 1 Where the right to a performance of a contract has been violated "by a breach thereof, the remedy is upon the contract against the contracting party ; and, if he is made to indemnify for such breach, no further recourse is allowed ; and, in case of the procurement of a breach of contract the action is for a wrong and cannot be joined with the action on the contract, and as the act itself is not likely to be of frequent occurrence, nor easy of proof, therefore the action for this wrong, in respect of other contracts than those of hiring, are not numerous ; but still they seem to me sufficient to show that the principle has been recognized. {Qii- 'Pf'lns- more v. Greenhank, Willes, 577, it was decided that the procuring of a breach of the contract of a wife is a cause of action. The only distinction in principle between this case and other cases of contract is, that the wife is not liable to be sued: but the judgment rests on no such grounds ; the procuring a violation of the plaintiff's right under the marriage contract is held to be an actionable wrong. In Green v. Button, 2 C. M. & R. 707, it was decided that the procuring a breach of a contract of sale of goods by a false claim of lien is an actionable wrong. Shepherd v. Wakeman, i Sid. 79, is to the same effect, where the defendant procured a breach of a contract of marriage by asserting that a woman was already married. In Ashley v. Harrison, 1 Peake's N. P. C. 194, S. C. i Esp. N. P. C. 48, and in Taylor v. Neri, i Esp. N. P. C. 386, it w^as properly decided that the action did not lie, because the battery, in the first case, and the libel, in the second case, upon the contracting parties were not shown to be wnth intent to cause those persons to break their con- tracts, and so the defendants by their wrongful acts did not procure the breaches of contract which were complained of. If they had so acted for the purpose of procuring those breaches, it seems to me they would have been liable to the plaintiff. To these decisions, founded on the principle now relied upon, the cases for procuring breaches of contracts of hiring should be added; at least Lord Mansfield's judgment in Bird v. Randall, 3 Burr. 1345, is to that effect. This principle is supported by good reason. He who ma- liciously procures a damage to another by violation of his right ought to be made to indemnify ; and that whether he procures an actionable wrong or a breach of contract. He who procures the non-delivery of goods according to contract may inflict an injury, the same as he w^ho procures the abstraction of goods after deliv- ery; and both ought on the same ground to be made responsible. The remedy on the contract may be inadequate, as where the meas- X 1 170 LUMLEY V. GYE. ure of damages is restricted ; or in the case of non-payment of a debt where the damage may be bankruptcy to the creditor who is disappointed, but the measure of damages against the debtor is interest only ; or, in the case of the non-dehvery of the goods, the disappointment may lead to a heavy forfeiture under a contract to complete a work within a time, but the measure of damages against the vendor of the goods for non-delivery may be only the difference between the contract price and the market value of the goods in question at the time of the breach. In such cases, he who procures the damage maliciously might justly be made responsible beyond the liability of the contractor. r With respect to the objection that the contracting party had not begun the performance of the contract, I do not think it a tenable ground of defence. The procurement of the breach of the contract may be equally injurious, whether the service has begun or not, and in my judgment ought to be equally actionable, as the relation of employer and employed is constituted by the contract alone, and no act of service is necessary thereto. The result is that there ought to be, in my opinion, judgment for the plaintiff.^ Coleridge, J. In order to maintain this action, one of two propositions must be maintained : either that an action will lie against any one by whose persuasions one party to a contract is in- duced to break it to the damage of the other party, or that the ac- tion, for seducing a servant from the master or persuading one who has contracted for service from entering into the employ, is of so wMde application as to embrace the case of one in the position and profession of Johanna Wagner. After much consideration and in- quiry I am of opinion that neither of these propositions is true and they are both of them so important, and, if established by judicial decision, wnll lead to consequences so general, that, though I regret the necessity, I must not abstain from entering into remarks of some length in support of my view of the law. It may simplify what I have to say, if I first state what are the conclusions which I seek to establish. They are these : that in re- spect of breach of contract the general rule of our law is to confine its remedies by action to the contracting parties, and to damages directly and proximately consequential on the act of him who is sued ; that, as between master and servant, there is an admitted exception ; that this exception dates from the Statute of Laborers, 23 Edw. 3, and both on principle and according to authority is lim- ited by it. ,/If I am right in these positions, the conclusion will be for the defendant, because enough appears on this record to show, ' The learned judge there holds that it is clear law that one who "wrong- fully and maliciously, or. which is the same thing, with notice" interrupts the relation of master and servant by procuring the servant to leave the master's service or by employing him after he has left commits a legal wrong against the master, and that the relation of master and servant exists as soon as there is a binding contract of hiring and service and it is unnecessary that the servant has actually entered upon the service. LUMLEV l\ GVE. II7I as to the first, that he, and, as to the second, that Johanna Wagner, is not within the hmits so drawn. First, then, that the remedy for breach of contract is by the general rule of our law confined to the contracting parties. I need not argue that, if there be any remedy by action against a stranger, it must be by action on the case. Now, to found this, there must be both injury in the strict sense of the word (that is a wrong done), and loss resulting from that injury: the injury or wrong done must be the act of the defendant ; and the loss must be a direct and natu- ral, not a remote and indirect, consequence of the defendant's act. Unless there be a loss thus directly and proximately connected with the act, the mere intention, or even the endeavor, to produce it will not found the action. The existence of the intention, that is the malice, will in some cases be an essential ingredient in order to con- stitute the wrongfulness or injurious nature of the act; btit it will neither supply the want of the act itself, or its hurtful consequence : however complete the injuria, and whether with malice or without, if the act be after all sine damno no action on the case will lie. If a contract has been made between A and B that the latter should go supercargo for the former on a voyage to China, and C, however maliciously, persuades B to break his contract, but in vain, no one, I suppose, would contend that any action lay against C. On the other hand, suppose a contract of the same kind made between the same parties to go to Sierra Leone, and C urgently and bona fide advises B to abandon his contract, which on consideration B does, whereby loss results to A ; I think no one will be found bold enough to maintain that no action would lie against C.^ In the first case no loss has resulted ; the malice has been ineffectual ; in the second, though a loss has resulted from the act, the act was not C's, but en- tirely and exclusively B's own.* If so, let malice be added, and let C have persuaded, not bona fide but mala fide and maliciously, still, all other circumstances remaining the same, the same reason ap- plies ; for it is malitia sine damno, if the hurtful act is entirely and exclusively B's, which last circumstance cannot be aflfected by the presence or absence of malice in C. Thus far I do not apprehend much difference of opinion ; there would be such a manifest absurd- ity in attempting to trace up the act of a free agent breaking a con- tract to all the advisers who may have influenced his mind, more or less honestly, more or less powerfully, and to make them responsible civilly for the consequences of what after all is his own act, and for the whole of the hurtful consequences of which the law makes him directly and fully responsible, that I believe it will never be con- tended for seriously. But it will be said that this declaration charges = In Bowen v. Hall, L. R. 6 Q. B. D. 333 (1881), Brett, L. J. says, p. 338, "Merely to persuade a person to break his contract, may not be unlawful in fact or law as in the second case put by Coleridge, J. But if the persuasion be used for the indirect purpose of injuring the plaintiff or benefitting the de- fendant at the expense of the plaintiff, it is a malicious act which is in law and fact a wrong act, and therefore a wrongful act, and therefore an action- able act if injury ensues from it." * See Brett, L. J., in Bowen v. Hall, supra, Note 3, at pp. 338-339. 1 172 LUMLEY V. GYE. more than is stated in the case last supposed, because it alleges, not merely a persuasion or enticement, but a procuring. In IVinstnorc V. Greenbank, Willes, 577, the same word was used in the first count of the declaration, which alone is material to the present case ; and the Chief Justice who relied on it, and distinguished it from entic- ing, defined it to mean "persuaded with effect ;" and he held that the husband might sue a stranger for persuading with effect his wife to do a wrongful act directly hurtful to himself. Persuading with effect, or effectually or successfully persuading, may no doubt sometimes be actionable — as in trespass — even where it is used to- wards a free agent ; the maxims, qui facit per alium facit per se and respondeat superior, are unquestionable ; but, where they apply, the wrongful act done is properly charged to be the act of him who has procured it to be done. He is sued as a principal trespasser, and the damage, if proved, flows directly and immediately from his act, though it was the hand of another, and he a free agent, that was employed. But when you apply the term of effectual persuasion to the breach of a contract it has obviously a different meaning; the persuader has not broken and could not break the contract, for he had never entered into any ; he cannot be sued upon the contract ; and yet it is the breach of contract only that is the cause of dam- age. Neither can it be said in breaking the contract the contractor is the agent of him who procures him to do so ; it is still his own act ; he is the principal in so doing, and is the only principal. This an- swer may seem technical ; but it really goes to the root of the mat- ter. It shows that the procurer has not done the hurtful act ; what he has done is too remote from the damage to make him answerable for it.° Now we find a plentiful supply both of text and de- cision in the case of seduction of servants : and what inference does this lead to, contrasted with the silence of the books and the ab- sence of decisions on the case of breach of ordinary contracts ? Let this, too, be considered : that, if by the common law it was action- able effectually to persuade another to break his contract to the damage of the contractor, it would se^ra on principle to be equally ' "The case itself of Winsmore v. Greenbank, Willes, 577, seems to me to have little or no bearing on the present: a wife is not, as regards her hus- band, a free agent or separate person; if to be considered so for the present purpose, she is rather in the character of a servant, with this important pecu- liarity, that, if she be induced to withdraw from his society and cohabit with another or do him any wrong, no action is maintainable by him against her. In the case of criminal conversation, trespass lies against the adulterer as for an assault upon her, however she may in fact have been a willing party to all the defendant had done. No doubt, therefore, effectual persuasion to the wife to withdraw and conceal herself from her husband is in the eye of the law an actual withdrawing and concealing her; and so, in other counts of the declaration, was it charged in this very case of Winsmore v. Greenbank. A case explainable and explained on the same 'principle is that of ravishment of a ward. The writ for this lay against one who procured a man's ward to depart from him; and, where this was urged in a case hereafter to be cited (Mich. 11 H. 4, fol. 23 A. pi. 46.) Judge Hankford (William Hankford, Jus- tice of the Common Pleas in 1368, afterward in 1414 (1 H. 5), Chief Justice of England) gives the answer: the reason is, he says, because the ward is a chattel, and vests in him who has the right." GYE. ^^7Z so to uphold him, after the breach, in continuing it.' The true; ground on which this action was maintainable, if at all, was the Statute of Laborers," to which no reference was made. But I men- tion this case now as showing how far courts of justice may be led if they allow themselves, in the pursuit of perfectly complete reme- dies for all wrongful acts, to transgress the bounds which our law, in a wise consciousness as I conceive of its limited powers, has im- posed on itself, of redressing only the proximate and direct conse- quences of wrongful acts. To draw a line between advice, persua- sion, enticement and procurement is practically impossible in a court of justice ; who shall say how much of a free agent's resolution flows from the interference of other minds, or the independent reso- lution of his own ? This is a matter for the casuist rather than the jurist; still less is it for the juryman. Again, why draw the line between bad and good faith? If advice given mala fide, and loss sustained, entitles me to damages, why, though the advice be given honestly, but under wrong information, with a loss sustained, am I not entitled to them? According to all legal analogies, the bona fides of him who, by a conscious wilful act, directly injures me, will not relieve him from the obligation to compensate me in damages for my loss. Again, where several persons happen to persuade to the same effect, and in the result the party persuaded acts upon the advice, how is it to be determined against whom the action may be brought, whether they are to be sued jointly or severally, in what proportion damages are to be recovered ? Again, if, instead of lim- iting our recourse to the agent, actual or constructive, we will go back to the person who immediately persuades or procures him one step, why are we to stop there ? The first mover, and the malicious mover too, may be removed several steps backward from the party actually induced to break the contract : why are we not to trace him out? Morally he may be the most guilty. I adopt the arguments of Lord Abinger and my brother Alderson in the case of IVinter- ""Now upon this the two conflicting cases of Adams v. Bafeald, 1 Leon, (part 1) 240, and Blake v. Lanyon, 6 T. R. 221, are worth considering. In the first, two Judges against one decided that an action does not lie for re- taining the servant of another, unless the defendant has first procured the servant to leave his master; in the second, this was overruled; and, although it was taken as a fact that the defendant had hired the servant in ignorance and, as soon as he knew that he had left his former master with work unfin- ished, requested him to return, which we must understand to have been a real, earnest request, and only continued him after his refusal, which we must take to have been his independent refusal, it was held that the action lay : and this reason is given : "The very act of giving him employment is affording him the means of keeping out of his former service." Would the Judges who laid this down have held it actionable to give a stray servant food or clothing or lodging out of charity? Yet these would have been equally means of keeping him out of his former service. ' "Item, if any reaper, mower, or other workman or servant, of what estate or condition that he be, retained in any man's service, do depart from the said service without reasonable cause or license, before the term agreed, be shall have pain of imprisonment. And that none under the same pain pre- sume to receive or to retain any such in his service." — Statute of Laborers, 22> Edw. Ill, c. 11 (1349). 11/4 SWAIX t'. JOHNSON. bottom V. upright. lo M. & W. 109 ; if we go the first step, we can show no good reason for not going fifty.* Judgment for plaintiff.** SWAIN V. JOHNSON. Supreme Court of North Carolina, 1909. 151 A''. Car. 93. Brown, J. The plaintiff contends that he contracted with the defendant Noble to purchase all the pine and juniper timber on cer- tain lands belonging to the Cox heirs, said Noble being their attor- ney in fact, with power to sell the land ; that the defendants West *The rest of the opinion of Coleridge, J., holding after an exhaustive and able review of the early cases, that the law in relation to the seduction of servants is an exception, the origin of which was known, and that the ex- ception did not reach the case of a theatrical performer, is omitted. In it he reviews the early cases both at common law and under the Statute of La- borers, pointing out that the first allowed recovery in trespass only for the forcible taking of a servant, while the Statute of Laborers only applied to menial household servants, agricultural laborers and artificers, to which the action on the case thereon was confined. See, also, Macomber, J., in John- ston Harvester Companv v. Meinhardt, 60 How. Pr. 168 (N. Y. 1880). ^Accord: Bowcn v. Hall, L. R. 1881, 6 Q. B. D. 2,2,Z, the defendants in- duced one Pearson, a brickmaker who possessed a secret process of making glazed brick and who had contracted to supply his whole product to the plain- tiff, to break his contract and supply such bricks to them; National Phono- graph Co. V. Edison Co., L. R. 1908, 1 Ch. 335, holding that this rule applies to contracts of whatsoever nature; but see Joyce, J., contra, treating as ab- surd the idea that an action would lie against a successful rival who induced the plaintiff's promised bride to marry him instead; Walker v. Cronin, 107 Mass. 555 (1871); Moran v. Dunphv, 177 Mass. 485 (1901); Beekman v. Marsters, 195 Mass. 205 (1907) ; Bitterman v. L. & N. O. R. Co., 207 U. S. 205 (1907), defendant bought for resale non-transferable return railway tickets, Tubular Rivet Co. v. Exeter Boot Co., 159 Fed. 824 (1908) ; Motley, Green Co. v. Detroit Steel & Spring Co., 161 Fed. 389 (1908); Tennessee Coal, Iron & Ry. Co. v. Kcllv, 163 Ala. 348 (1909), semble; Ravcroft v. Tayn- tor, 68 Vt. 219 (1896), semble; Employing Prints' Club v. Blosser Co., 122 Ga. 509 (1905), semble; Transportation Co. v. Standard Oil Co., 50 W. Va. 611 (1902), semble; Thatker Coal Co. v. Burke. 59 W. Va. 253 (1906); Knickerbocker Ice Co. v. Gardiner Dairv Co.. 107 Md. 556 (1908); Joyce V. Great Northern R. Co., 100 Minn. 225 (1907). semble; Chipley v. At- kinson, 23 Fla. 206 (1887) ; Martens v. Reillv, 109 Wis. 464 (1901) ; Flaccus V. Smith. 199 Pa. St. 128 (1901) ; Doremus v. Hennessy, 176 111. 608 (1898) ; Huskie V. Griffin, 75 N. H. 345 (1909). In many cases, while the law is stated broadly as in -the principal case, the breach of the contract was procured by means in themselevs unlawful, as, fraud, false statements, Van Horn v. Van HorM, 52 N. J. L. 284 (1890), bribery. Angle V. Chicago R. Co., 151 U. S. 1 (1894). boycotting or other intimidation, Club v. Blosser, supra, Doremus v. Hennessy, 176 111. 608 (1898), or by a combination illegal by statute, Joyce v. Great Northern R. Co., supra. In Tennessee Coal & Iron Co. v. Kelly, Chipley v. Atkinson, Raycroft v. Tayntor, Moran v. Diinphy, supra, it is held that the unjustifiable procure- ment of the termination of a contract terminable at will, is as wrongful as procuring the breach of a contract irrevocably binding the party breaking it. But no action lies for procuring the breach of a contract void as against pub- lic policy, Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373 (1911). SWAIN V. JOIIXSOX. • 1 175 and Johnson conspired together and induced Noble to violate his contract with plaintiff by purchasing the lands from Noble for a corporation, the West Lumber Company, in which West and John- son are interested. Wlierefore, for such alleged tort, the plaintiff claims substantial damage. The principle of law upon which plaintiff found his right of action is thus stated in Comyn's Digest, Action on Case A : "In all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in dam- ages. The intentional causing such loss to another, without justi- j? fiable cause, and with the malicious purpose to inflict it, is of itself ^ a wrong/^ Tills principle has been applied in some jurisdictions to the vio- lation of contracts for personal servic^ and was so applied in this State in Haskins v. Royster, 70 N. C, 601, although by a divided court. ^(^It has been applied to the malicious enticing away of a work- man ; to the loss of a contract of marriage by means of a false and malicious letter ; to maliciously enticing and inducing a wife to re- main away from her husband, and to maliciously inducing an opera singer to abandon her contract ; but we find no case in any courtj where it has ever been applied to breaches of contracts to convey title to property^' It is true that in Jones v. Stanley, 'j6 N. C, 356, it was applied where the president of a railroad company maliciously prevented his company from performing a contract of carriage of freight, and in that case. Judge Rodman says ''the same reasons cover every case where one person maliciously persuades another to break any contract with a third person."; This is but a dictum. and in commenting on it the Supreme Court of Kentucky, in a well- considered opinion in Chambers v. Baldzvm, ii L, R. A., 547, says: "We have seen no other case where the doctrine is stated so broadly." tThis Kentucky authority, with the voluminous notes of the annotator and the numerous cases cited, support fully mie text of Judge Cooley, that "an action cannot, in general, be mamtained for inducing a third person to break his contract with the plaintiff' ; the consequences, after all, being only a broken contract, for which the party to the contract may have his remedy by suing upon it." j Cooley on Torts, 497. (JTo this rule there are but two generally rec- ognized exceptions — one where servants and apprentices are in- duced from malicious motives to leave their master before the term of service expires, and the other arises where a person has been procured, against his zvill or contrary to his purpose, by coercion or deception of another, to break his contract. Green v. Button, 2 Cromp. M. & R., 707 ; Ashley v. Dixon, 48 N. Y., 430. .This is based upon the idea that a person has no right to be protected against competition, but he has a right to be free from malicious and wanton interference in his private affairs. \ If disturbance or loss comes as the result of competition or the exercise of like rights by others, it is damnum absque injuria. Walker v. Cronin, 107 Mass., 564. It is only where the contract would have been fufilled but for 11/6 KEEBLE Z'. IIICKERrXGILL. the false and fraudulent representations of a third person that an action will lie against such third person. \ Benton v. Pratt, 2 Wend., 385, citing Paslcy v. Freeman, 3 T. R. 51. The case of Ashley v. Dixon, supra, is in every respect similar to the one under consideration. In that case the New York court holds: "If A has agreed to sell property to B, C may at any time before the title has passed induce A to sell it to him instead ; and if not guilty of fraud or misrepresentation, he does not incur liability, and this is so, although C may have contracted to purchase the prop- erty of B. B cannot maintain an action upon the latter contract, as he cannot perform and can only look to A for a breach of the former." This doctrine is supported by abundant authority. Cooley on Torts, supra; Otis v. Raymond, 3 Conn., 413 ; Young v. Covell, 8 Johns. (N. Y.) 25 ; Johnson v. Hitchcock, 15 J. R. 185 : Gallager v. Brunell, 6 Cow., 347; Hutchins v. Hutchins, 7 Hill, 104. Tested by these generally accepted principles, the plaintiff has entirely failed, for he does not allege, and there is not a shred of evidence to prove, that Noble was ready and willing to perform his alleged contract with plaintiff, but that he was prevented, against liis will, from so doing by the false and fraudulent representations of West and Johnson, or either of them. The judgment is affirmed.^ ^ (b) By force, threats or other means tortious in themselves. l/KEEBLE v. HICKERINGILL. Court of King's Bench, 1809. 11 East's Reports, 574. Action upon the case. Plaintiff declares that he was, 8th No- vember in the second year of the queen, lawfully possessed of a close of land called iMinott's IMeadow, et de quod omvivario, vo cat. '^Accord: Boyson v. T] wrn^9S, Cz\. 578(1893^ defendant induced a hotel keeper to require^e plaintifiTaricniis wife to vacate rooms engaged by them ; Jackson v. Morgan, 49 Ind. App. 376 (1911), defendant induced the plaintiff's partner to exclude him and admit the defendant; Chambers & Marshall v. Baldwin, 91 Ky. 121 (1891), a man, who had contracted to sell his tobacco to the plaintiff, induced to sell and deliver it to the defendant; Boiirlicr Bros. v. _JlJacaiiley, 91 Ky. 135 (1891), facts very similar to Lumley v. Gye, the de- fendant inducing a popular actress to break her contract with the plaintiff' _33}6. appear at his own theatre; McCann v. U'olif, 28 Mo. App. 447 (1888) ; Glencoe Land Co. v. Hudson Bros. Co., 138 Mo. 439 (1897); Ashley v. Dixon, 48 X. Y. 430 (1872), defendant by offering a higher price induced one, who had contracted to sell land to the plaintiff, to convey it to himself; Roscnau v. Empire Circuit Co., 131 App. Div. 429 (1909 N. Y.) ; Sweenev V. Smith, 167 Fed. 385 (Circ. Ct. East Dist. of Pa. 1909), defendants pur- chased bonds from a committee of bondholders, which had already to their knowledge contracted to sell them to the plaintiff; aliter, where the con- tract broken is unenforcible as not being in writing as required by the statute of frauds, and where the breach is procured by fraud, Rice v. Man- ley, 66 N. Y. 82 (1876) ; Heywood v. Tillson, 75 :Maine 225 (1883), semble; but see Perkins v. Pendleton. 90 Maine 166 (1897), and see Kline v. Eii- banks, 109 La. 241 (1902), and Wolf & Sons v. New Orleans Tailor Made i II r- KEEBLE V. HICKERINGILL. II77 a decoy pond, to which divers wildfowl used to resort and come ; and the plaintiff had at his own costs and charges prepared and pro- cured divers decoy- ducks, net s, machines, and other engines for the decoying and taking of the wildfowl, and enjoyed the benefit in taking them ; the defendant, knowing which, and intending to dam- nify the plaintiff in his vivary, and to fright and drive azvay the zi'ildfozi'l used to resort thither, and dZprm^Hum^f his profit, did, on the 8th of November, resort to the head of the said pond and vivary, and did dischar^e_six_guns l aden with gunpow der, and with the noise and stink of thegunpowder did drive awa}n;he wildfowl then being in the pond: and on the nth and 12th days of November the defendant, tvith design to damnify the plaintiff, and fright azvay the zuildfowl, did place himself with a gun near the vivary, and there did discharge the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wild- fowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the olaintiff and £20 dam- ages. Holt, C. J. I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, 1st, this using or making a decoy is lawful. 2dly, This employment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy-ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law ; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and de- stroy wildfowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit, this is his trade ; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. Why otherwise are scandalous words spoken of a man in his profession actionable, when without his profession they are not so ? Though they do not effect any dam- age, yet are they mischievous in themselves ; and therefore in there own nature productive of damage ; and therefore an action lies against him. Such are all words that are spoken of a man to dis- parage him in his trade, that may bring damage to him ; though they do not charge him with any crime that may make him ob- noxious to punishment ; to say a merchant is broken, or that he is failing, or is not able to pay his debts, i Roll. 60. i ; all the cases there put. How much more, when the defendant doth an actual and real damage to another when he is in the very act of receiving Pants Co., 113 La. 388 (1904), where the defendant engaged a salesman who had left the plaintiff's employment in breach of a contract with him. The defendant, when notified of this fact, offered to release the salesman from their contract, who refused to accept such release and said he would never return to the plaintiff's service. It was held that no action lay against the defendant for refusing to discharge the salesman. 1 178 KEEBLE Z'. inCKERINGILL. profit by his employment. Now, there are two sorts of acts for do- ing damage to a man's employment, for which an action lies ; the one is in respect of a man's privilege ; the other is in respect of his property. In that of a man's franchise or privilege whereby he hath a fair, market, or ferry, if another shall use the like liberty, though out of his limits, he shall be liable to an action ; though by grant from the king. But therein is the difference to be taken be- tween a liberty in which the public hath a benefit, and that wherein the public is not concerned. 22 H. 6. 14. 15. The other is where a ^vinjppt or maliciQus_.acJ: is done to a man's occupation, profession, or way ofgetting^a livelihood ; there an action lies in all cases. But if a fTTan^doth him damage by using the same employment ; as if ^Ir. Hickeringill had set up another decoy on his own ground near the plaintiff's, and that had spoiled the custom of the plaintiff, no action would lie because he had as much liberty to make and use a decoy as the plaintiff.^ This is like the case of ii H. 4. 47. One school- master sets up a new school to the damage of an ancient school,, and thereby the scholars are allured from the old school to come to his new. (The action there was held not to lie.)- But suppose Mr. Hickeringill should lie in the way with his guns, and fright the boys from going to school, and their parents could not let them go thither ; sure that schoolmaster might have an action for the loss of his scholars. 29 E. 3. 18.^ A man hath a market, to which he hath toll for horses sold : a man is bringing his horse to market to sell : a stranger hinders and obstructs him from going thither to the market : an action lies because it imports damage. Action upon the case lies against one that shall by threats fright away his tenants at will. 9 H. 7. 8. 21 H. 6. 31. 9 H. 7. 7. 14 Ed. 4. 7. Vide Rastal. 662. 2 Cro. 423. Trespass was brought for beating his servant, whereby he was hindered from taking his toll ; the obstruction is a damage, though not the loss of his service.* ^ So a man may attract game, even from his neighbor's lands, by plac- ing corn and other food on his land, Ibottson v. Peat, 3 H. & C. 644 (1865). = See Holmes. J., in Vegelahn v. Guntner, 167 Mass. 92 (1896). "It has been the law for centuries that a man may set up a business, in a coun- try town too small to support more than one, although he expects and in- tends to ruin some one already there and succeeds in his intent." "The reason is that the doctrine of free competition is worth more to society than it costs, and that on this ground the infliction of the damage is priv- ileged." ^Accord: Tarlefon v. McGawIey, 1 Peake 270 (1793), a declaration sustained which alleged that the defendant, a merchant trading with the natives of Cameroon, had fired a cannon at a canoe in which the natives were coming to the vessel of the plaintiff, a rival trader, for the purpose of trading, killing one of them and deterring them from trading with the plaintiff; so in Standard Oil Co. v. Doyle, 118 Ky. 662 (1904), threats, to put the plaintiff's customers out of business if they continued to deal with him, held actionable. * Accord: Carrington V. Taylor, 11 East 571 (1809); Ibottson v. Peat, 3 H. & C. 644 (1865). compare Lanprev v. Danz, 86 Minn. 317 (1902). and IVhitfaker v. Stangvick, 100 Minn. 386 (1907), and see Prince de Wag- ram V. Marais, Cour de Paris, (1871), Dalloz 73, 2, 185, defendant jealous of the success of the plaintiff's efforts to attract game by planting cer- tain crops, instructed his servants to make so much noise as to frighten JERSEY CITY PRINTING CO. Z'. CASSIDY. II79 GARRET V. TAYLOR. Court of King's Bench, 1620. Croke James Reports, 567. Action on the Case. Whereas, he was a free mason, and used to sell stones, and to make stone-buildings, and was possessed of a lease for divers years to come of a stone-pit in Hedington, in the county of Oxford, and digged divers stones there, as well to sell as to build withal ; that the defendant, to discredit and to deprive him of the commodity of the said mine, imposed so many and so great threats upon his workmen, and all comers disturbed, threatening to mayhem and vex them with suits if they bought any stones ; whereupon they all desisted from buying, and the other from working, etc. After judgment by nihil dicit for the plaintiff, and damages found by inquisition to fifteen pounds, it was moved in arrest of judgment, that this action lay not ; for nothing is alleged but only words, and no act nor insult ; and causeless suits on fear are no cause of action. Sed non allocatur: for the threatening to mayhem, and suits, whereby they durst not work or buy, is a great damage to the plain- tiff, and his losing the benefit of his quarries a good cause of action ; and although it be not shown how he was possessed for years, by what title, &c., yet that being but a conveyance to this action, was held to be well enough. And adjudged for the plaintiff.^ (c) By interference with the freedom of opportunity to contract or to obtain labor or employment. (The right to "the freedom of the market.") THE JERSEY CITY PRINTING CO. v. CASSIDY. Court of Chancery, New Jersey, 1902. 63 A''. 7. Equity, 759r On motion, on order to show cause, for an injunction to re- strain defendants, former employees of the complainant, and now on strike, from nnla wfnl infprfprpnrp with the rnmp 1nin^nt'<; biminpss, away the game and spoil the sport of the plaintiff and his shooting partv, Ames, 18 Harvard L. R. p. 416. "■Accord: Standard Oil Co. v. Doyle, 118 Ky. 662 (1Q04\ defendants conspired to harass and annoy the plaintiff's employes while selling and de- livering his wares; Pratt Food Co. v. Bird, 148 Mich. 631 (1907), injunction issued against a food commissioner of the state restraining him from threatening customers of the plaintiff with prosecutions, which it was not within his powers to institute, if they used its product as prepared by it; see also Emack v. Kane, 34 Fed. 46 (1888), injunction issued restraining il8o JERSEY CITY PRINTING CO. V. CASSIDY. the employment of workmen, (S:c. Heard on bill, answer and affida- vits. Upon tiling the bill an order was made restraining the defend- ants "from in anj^ manner knowingly and intentionally causing or attempting to cause by threats, offers of money, payment of money, offering to pay or the payment of transportation expenses, inducements or persuasions to any employee of the complainant under contract to render service to it to break such contract by quitting such service ; from any and all personal molesta- tion of persons willing to be employed by complainant with intent to coerce such persons to refrain from entering such employment; from addressing persons willing to be employed by complainant against their will and thereby causing them personal annoyance u'ith a view to persuade them to refrain from such employment; from loitering or picketing in the streets near the premises of complainant, Nos. 68 and 70 York street, and No. 2)1 Mont- gomery street, Jersey City, with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by com- plainant and with a view to cause persons so employed to quit their em- ployment, or persons willing to be employed by complainant to refrain from such employment; from entering the premises of complainant, Xos. 68 and 70 York street, Jersey City, against its will with intent to interfere with its business ; from violence, threats of violence, insults, indecent talk, abusive epithets, practiced upon any persons without their consent with intent to coerce them to refrain from entering the employment of complainant, or to leave its emploj^ment." Stevenson, V. C. '.The order does not interfere with the right of the workmen to cease his employment for any reasons that lie deems sufficient.' It does not undertake to say that workmen may not refuse to be employed if certain other classes of workmen are retained in employment. 1 It leaves the workman absolutely free to abstain from work — for good reasons, for bad reasons, for no rea- sons. His absolute freedom to work, or not to work, is not in any w-ay impaired. The restraining order is based upon the theory that the right of the workman to cease his employment, to refuse to be employed, and to do that in conjunction with his fellow-workmen, is just as absolute as is the right of the employer to refuse further to employ one rnan, or ten men, or twenty men, who have thereto- fore been in his employment. From an examination of the cases and a very careful consideration of the subject I am unable to dis- cover any right in the courts, as the law now stands, to interfere with this absoltite freedom on the part of the employer to employ whom he will, and to cease to employ whom he will ; and the corres- ponding freedom on the part of the workman, for any reason or defendants from issuing circulars threatening to bring suits for infringe- ment against persons dealing in the plaintiff's patented article the charges of infringement not being made in good faith but with intent to injure the plaintiff's business, and St. Johusburv. etc., R. Co. v. Hunt, 55 Vt. 570 (1882). See also, Van Horn v. Van Horn, 52 N. J. L. 284 (1890), and Sparks V. McCreary, 156 Ala. 382 (1908). JERSEY CITY PRINTING CO. V. CASSIDY. I181 no reason, to say that he will not longer be employed ; and the fur- ther right of the workmen, of their own free will, to combine and meet as one party, as a unit, the employer, who, on_the other side of the transaction, appears as a unit before them. [Any discussion of the motives, purposes or intentions of the employer in exercising his absolute right to employ or not to employ as he sees fit, or of the free combination of employees in exercising the corresponding ab- solute right to be employed or not as they see fit, seems to me to be in the air, \ Thus, thTre is a wide field in which employees may combine and exercise the arbitrary right of "dictating" to their common em- ployer "how he shall conduct his business." The exact correlative of this right of the employee exists, in an equal degree, in the em- ployer. He may arbitrarily "dictate" to five thousand men in his employ in regard to matters in respect of which their conduct ought, according to correct social and ethical principles, to be left entirely free. But if the "dictation" is backed up solely by the announce- ment that, if it is not submitted to, the dictating party will refrain from employing, or refrain from being employed, as the case may be, no legal or equitable right belonging to the party dictated to, which I am able to discern, is thereby invaded. r^Some of the expressions which I have used, and which are com- monly used, in relation to this subject seem to me to be misleading."^ Union workmen who inform their employer that they will strike if he refuses to discharge all non-union workmen in his employ are acting within their absolute right, and, in fact, are merely dictating the terms upon which they will be employed. All such terms neces- sarily relate both to "how the employer shall conduct his business" and how the employees shall conduct their business. The principles which I have endeavored to state are all recog- nized in the restraining order in this case, and are so plainly recog- nized that the intelligent and industrious counsel for the defendants is unable to point out any respect wdierein the terms of the order should be modified. The things which the restraining order inter- dicts are things which, for the purposes of this argument, it is prac- ticajlj conceded the defendants have no right to do. In this situation of the case it would seem to be unnecessary to further consider the legal propriety of the restraining order, much less to take it up clause by clause. I have, however, pointed out what conduct on the part of the defendants is excluded from the operation of this order, and I think that it is fair to all the parties to this suit who are concerned in the maintenance of the restraining order to explain, at least in a general way, what conduct is included within its prohibition. This can be most conveniently done by mak- ing plain the most important principles embodied in the order — principles which practically have been developed by the courts of this country and England during the last five or ten years. That the interest of an employer, or an employee, in a contract for services is property is conceded. Where defendants, in combina- tion or individually, undertake to interfere with and disrupt existing Il82 JERSEY CITY PRINTING CO. V. CASSIDY. contract relations between the employer and the employee, it is plain that a property right is directly invaded. The effect is the same whether the means employed to cause the workman to break his con- tract, and thus injure the employer, are violence or threats of vio- lence against the employee or mere molestation, annoyance or per- suasions. In all these cases, whatever the means may be, they con- stitute the cause of the breaking of a contract, and consequently they constitute the natural and proximate cause of damage. The intentional doing of anything by a third party which is the natural and proximate cause of the disruption of a contract relation, to the injury of one of the contracting parties, is now very generally recog- nized as actionable, in the absence of a sufficient justification, and the question, in every case, seems to turn upon justification alone. [ Where the tangible property of an employer is seized or di- rectly injured by violence, with intent to interfere with the carrying on of his business, the case, also, is free from embarrassment. In the case of Frank v. Herold, i8 Dick. Ch. Rep. 443, Vice Chancellor Pitney amply discussed the whole subject of the unlaw- fulness of molestation and annoyance of employees, with intent and with the effect to induce them to abandon their employment, to the injury of their employer's business. But the difficult case presents itself when the workmen in com- bination undertake to interfere with the freedom of action on the part of other workmen, whonaturally would seek employment where ^thev (the work men in combination) desire and intend that no man shall be employ ed excepting upon their terms. M The difffculty is in perceiving how molestation and annoyance, not of the employees. of a complainant, but of persons who are merely looking for work and may become employees of the com- plainant, ca n be erected into a legal or equitable grievance on the paTt_ofjhe_"co_in pTaiHa nt. But the difficulty is still further increased where the possible employees make no complaint to any court for protection, and the conduct of the molesting party does not afford a basis which the ancient common law recognized as sufficient to support an action of tort on their behalf, such as for an assault and battery or a slander. Abusive language is not necessarily actionable at the common law. ' If to call a man a "scab" in the street, or to follow him back and forth from his home to his place of employ- ment, was formerly not actionable on behalf of the victim of this petty annoyance, the problem is to understand how one who is merely the v'f'<^inVgj;ins^jbJ^^^IJi?ycr--^'^*^ rpmplain, either at law or in equity, there being no actual contract for service, but only a potential one, interfered with. It is easier, I think, to obtain a correct idea of the legal and equitable right which underlies many of the injunctions which have been granted in these strike cases restraining combinations of work- men from interfering with the natural supply of labor to an em- ployer, by means of molestation and personal annoyance, if we ex- clude from consideration the conduct of the defendants as a cause of action on behalf of the immediate victims of their molestation — i. e , I JERSEY CITY PRINTING CO. V. CASSIDY, T183 of the workman or workmen whom the combination are seeking to deter from entering into the employment which is offered to them, and which they, if let alone, would wish to accept. I say this, al- though I firmly believe that the molested workman, seeking employ- ment and unreasonably interfered with in this effort by a combina- tion, has an action for damages at common law, and, where the molestation is repeated and persistent, has the same right to an in- junction, in equity, which, under the same circumstances, is ac- corded to his conteroplated employer. The underlying right^n this particular case under considera- tion, which seems to be coming into general recognition as the sub- ject of protection by courts of equity, through the instrumentality of an injunction, appears to, be the right to enjoy a_ certain_.free and nat ural cg nditionof ^the labormarket, whicli, in a rec ent case in the house jo f lords, was r eferred to, in the language of Lord EUenbor- ough, ^TaJ^probable e3cpectancy.'' This underlying right has other- wise beenbroad!y~delined or described as the right which every man has to earn his living, or to pursue his trade or business, without un- due interference, and might otherwise be described as the right which every man has, whether employer or employee, of absolute freedom to employ or to be employed. The peculiar element of this, perhaps newly recognized right, is that it is an interest which one man has in the freedom of another. In the case before this court the Jersey City Printing Company claims the right, not only to be free in em- ploying labor, but also the right that labor shall be free to be em- ployed by it, the Jersey City Printing Company. A large part of what is most valuable in modern life seems to depend more or less directly upon "probable expectancies." When they fail, civilization, as at present organized, may go down. As social and industrial life develops and grows more complex these "probable expectancies" are bound to increase. It would seem to be inevitable that courts of law, as our system of jurisprudence is evolved to meet the growing wants of an increasingly complex social order, will discover, define and protect from undue interference more of these "probable expectancies." in undertaking to ascertain and define the rights and remedies of employers and employees, in respect of their "probable expec- tancies" in relation to the labor market, it is well not to lose sight altogether of any other analogous rights and remedies which are based upon similiar "probable expectancies." ^ It will probably be found in the end, I think, that the natural expectancy of employers in relation to the labor market and the natural expectancy of mer- chants in respect to the merchandise market, must be recognized to the same extent by courts of law and courts of equity and protected by substantially the same rules. It is freedom in the market, freedom in the purchase and salX of all things, including both goods and labor, that our modern law) is endeavoring to insure to every dealer on either side of the marked The valuable thing to merchant and to customer, to employer and j to employee, manifestly is freedom on both sides of the market. / 1 184 JERSEY CITY PRINTING CO. V. CASSIDY. ■ The merchant, with his fortune invested in goods and with perfect freedom to sell, might be ruined if his customers were deprived of their freedom to buy ; the purchaser, a householder, seeking supplies for his family, with money in his pocket and free to buy, might find his liberty of no value and might suffer from lack of food and cloth- ing if the shopmen who deal in these articles were so terrorized by a powerful combination as to be coerced into refusing to sell either food or clothing to him. It is, however, the right of the employer and employee to a free labor market that is the particular thing under consideration in this case.^ I A man establishes a large factory where working people reside, taking the risk of his being able to conduct his industry and offer these working people employment which they will be willing to ac- cept. He takes the risk of destructive competition and a large num- ber of other risks, out of which, at any time, may come his financial ruin and the suspension of his manufacturing works. But our law, in its recent development, undertakes to insure him, not only that he may employ whom he pleases, but that all who wish to be em ployed by him may enter into and remain in such employment freely, without threats of harm, without unreasonable molestation and annoyance from the words, actions or other conduct of any other persons acting in combination. What is the measure or test by which the conduct of a combination or persons must be judged in order to determine whether or not it is an unlawful interference with freedom of employment in the labor market, and as such, in- jurious to an employer of labor in respect of his "probable expec- tancies," has not as yet been clearly defined. Perhaps no better definition could be suggested than that which may be framed by con- veniently using that important legal fictitious person who has taken such a large part in the development of our law during the last fifty years — the reasonably prudent, reasonably courageous and not un- reasonably sensitive man. Precisely this same standard is employed throughout the law of nuisance, in determining what degree of an- noyance on the part of one's neighbor one must submit to, and what degree of such annoyance is excessive and the subject of an action for damages or a suit for an injunction. A man may not be liable to an action for slander for calling a workman a "scab" in the street, but if half a hundred men combine to have this workmen denounced as a "scab" in the street, or fol- lowed in the streets to and from his home, so as to attract public attention to him and place him in an annoyingly conspicuous posi- tion, such conduct, the result of such combination, is held to be an invasion of the "probable expectancy" of his employer or con- templated employer, an invasion of this employer's right to have labor How freely to him. Without any regard to the rights and remedies which the molested workman may have, the injunction goes at the suit of the employer to protect his "probable expectancy" — to secure freedom in the labor market to employ and to be em- JERSEY CITY PRIXTIN'O CO. V. CASSIDY. 1 1S5 ployed, upon which the continuance of his entire industry may de- pend. I think it is safe to say that all through this development of strike law, during the last decade, no principle becomes established which does not operate equally upon both employer and employee. The rights of both classes are absolutely equal in respect of all these "probable expectancies." An operator upon printing machines has the right to offer his labor freely to any of the printing shops in Jer- sey City. These shops may all combine to refuse to employ him on account of his race, or membership in a labor union, or for any other reason, or for no reason, precisely as twenty employees in one print- ing shop may combine and arbitrarily refuse to be further employed unless the business is conducted in accordance with their views. But in the case of the operative seeking employment, he has a right to have the action of the masters of the printing shops, in reference to employing him, left absolutely free. If, after obtaining, or seeking to obtain, employment in a shop, the master of that shop should be subjected to annoyances and molestation, instigated b}^ the proprie- tors of other printing shops, who combine to compel, by such moles- tation and annoyance, this one master printer, against his will and wish, to exclude the operative from employment, this operative, in my judgment, would have a right to an action at law for damages, and would have a right to an injunction if his case presented the other ordinary conditions upon which injunctions issue'.'' But the common-law courts have not had time to speak distinctly'on this subject as yet, and it is necessary to be cautious in dealing with a subject in which both courts of law and courts of equity as yet are feeling their way. I think that the leading principle enforced in the restraining order in this case is not inconsistent with any authorities which con- trol this court. The principle is that a combination of employers,! or a combination of employees, the object of which is to interfere with the freedom of the employer to employ, or of the employee to be employed (in either of which cases there is an interference with the enjoyment of "probable expectancy," which the law recog- nizes as something in the nature of property), by means of such molestation or personal annoyance as would be liable to coerce the person upon whom it was inflicted, assuming that he is reasonably' courageous and not unreasonably sensitive, to refrain from employ- ing or being employed, is illegal and founds an action for damages on the part of any person knowingly injured in respect of his "prob- able expectancy" by such interference, and also, when the other necessary conditions exist, affords the basis of an injunction from a court of equity. The doctrine which supports that portion of the restraining order in this case which undertakes to interdict the defendants from molesting applicants for employment as an invasion of a right of the complainant, is applicable to a situation presenting either an em- ployer or an employee as complainant, and containing the following elements : Il86 JERSEY CITY PRINTING CO. V. CASSIDY. First. Some person or persons desiring to exercise the right of employing labor, or the right of being employed to labor. Second. A combination of persons to interfere with that right, by molestation or annoyance, of the employers who would employ, or of the employees who would be employed, in the absence of such molestation. How far the element of combination of a number of persons will finally be found necessary, in order to make out the invasion of a legal or equitable right in this class of cases, need not be discussed. We are dealing with cases where powerful combinations of large numbers, in fact, exist. Third. Such a degree of molestation as might constrain a per- son having reasonable fortitude, and not being unreasonably sensi- tive, to abandon his intention to employ or to be employed, in order to escape such molestation. Fourth. As the result of the foregoing conditions, an actual pecuniary loss to the complaining party, by the interference with his enjoyment of his "probable expectancies" in respect of the labor market. I do not think that the constraining force brought to bear upon the employer or employee which the law can interdict can ever in- clude the power of public opinion or even of class opinion. Every man, whether an employer or an employee, constitutes a part of a great industrial system, and his conduct is open to the criticism of the members of his own class. While, therefore, a combination of union men have no right to cry "scab" in the streets to non-union employees, or to follow them in the street in a body to and from their homes, or do many other things In combination, which, if done ^once by a single individual, would not found an action of tort, such :ombinations, I think, have left a fairly wide field of effort towards the creation and application of public opinion as a constraining force ipon conduct of any kind which they wish to discourage.^ ^ While later cases tend to recognize a right to the probability of bene- fit from the purely voluntarily, though probable, favorable actions of others, in no way legally bound to so act, and regard as legally wrongful any tortious interference by fraud, misrepresentation, force or threats with such person's activities, many of the older cases held that no such right existed and required that the plaintiff show a legal right to the present enjoyment of tha* of which the defendant's action had deprived him. Com- pare Hutchins v. Htitch'iiis, 7 Hill 104 (N. Y. 1845) with Lewis v. Corbin, 195 Mass. 520 (1907), both cases where the defendant by false statements about the plaintiff induced a third person to alter his will to the plain- tiff's disadvantage, and Rice v. Manley, 66 N. Y. 82 (1876), where the defendant induced a third person to break a contract with the plaintiff, the contract being legally unenforceable, not being in writing as required by the statute of fraud. The same tendency may be noted in such cases as Urtc v. N'ew York Central and Hudson River R. R. Co. and Austin v. Barrows, ante, holding it to be insufficient for the plaintiff to show as proof of loss resulting from the defendant's wrong, that it prevented him obtain- ing a benefit, which to a high degree of probability would have accrued to him. GOLDFIELD CONSOL. MINES CO. V. GOLDFIELD MIXERs' UNION. II87 SECTION 2 The Actor's Economic Advancement as a Justification. 1. For the use of force, threats or other tortious means. CCJLDFIELD CONSOLIDATED MINES CO. v. GOLDFIELD MINERS UNION NO. 220. Circuit Court, D. Nevada, 1908. 159 Fed. Rep. 500. Farrington, D. J. There is no law, nor is it within the power of this or any other court, to make an order by which Goldfield Consolidated Mines Companycan__be_com2en£d^ re-enTp]oxJJlXJSil2er_vdiQ_quit,'or any member of the Western Fe3^ eratK)n of Miners ; neither can any member of that organization be compelled against his will to work for the company. The nonunion men have tbp^?miej-ip; ht to work or not work, t o ^^je.e. upon the^ terms of empToyment^ or to quit work, as union men, no more, no less. They have a perfect right to take the vacated jobs if they can agree with the company upon terms, and the respondents have no legal right to dictate what those terms shall be. They have the right to seek employment, to come and go from their work,^ or to go where they please on the public thorough fare,^ without fear or molestation, threats, violence, or insult of any kind. They have a right to come and go without being picketed, or compelled to listen to argument or persuasion, whether it be peaceful or irritating. The pickets have no legal right to insist that any nonunion man shall listen to their solicitations if he is unwilling to do so, it matters not how peaceful and friendly such solicitations may be.^ Union Pac. R. Co. v. Riicf (C. C.) 120 Fed. 114. And it necessarily follows that any attempt to intimidate a man in order to compel him to re- ^In Murdoch v. Walker, et al., 152 Pa. St. 595 (1893), strikers were enjoined from following workmen employed in their stead, and from gath- ering around their boarding places. ^"It makes no difference that the picketing is done 10 or 1,000 feet awav" from the employer's premises, Beck v. Teamsters' Protective Union, 118 Mich. 497 (1898) ; American Steel & Wire Co. v. Wire Drawers' Union, 90 Fed. 608 (1898); Ideal Mfg. Co. v. Ludwig, 149 Jvlich. 133 (1907). ^ In Jonas Glass Co. \. Glass Bottle Blowers Assn., 77 N. J. Eq. 219 (1910), following the decree in Jersey City Printing Co. v. Cassidy, ante, the members of the association were restrained from "addressing persons willing to be employed by complainant, against their will, and so causing them annoyance with a view to persuade them to refrain from such em- ployment." "It is urged," says Pitney, V. C. in Frank & Dugan V. Herold, 63 N. J. Eq. 443 (1902), p. 449, "that one person has a right to persuade another to work or not to work that may be if the other person is willing to listen and be persuaded ; but no person has the right to impose on an- other his arguments or persuasions against the will of that other person to listen. . . . No person has a right, strictly speaking, to accost an- Il88 GOLDFIELD COXSOL. MINES CO. V. GOLDFIELD MINERS* UNION. frain from exercising a legal right is unlawful, and this is true no matter whether the attempt is made by one man or many, or by a corporation or a labor union. Hence, if the pickets, or members of the respondent union, who gather at or near complainant's premises at the time of the morning and afternoon change of shifts, assail nonunion men with threats, ridicule, and insult, or follow them to or from their work with vile language and abusive epithets in order to compel them to quit work, or refrain from offering their labor to the complainant, they are guilty of unlawful conduct. The affidavits on the part of the complainant, as well as other evidence in the case, convince the court that the company's premises are almost constantly picketed, day and night, by members of the jMiners' Union ; that there are altogether too many pickets, especially at the railroad crossing used by the workmen in going to and from the mines and mill to the company's boarding house. The unneces- sary massing of so many men at this point is, in itself, an act of intimidation, which is further aggravated by insults, threats, and ridicule. It is not necessary that a man should be knocked down to be intimidated. The most reprehensible intimidation may exist not only without violence, but without words, or even the lifting of a finger. Whether conduct is intimidating or not depends upon the circumstances of each case. What would fill a timid man with fear might only provoke the mirth of a strong man ; and a simple request, when backed up by a display of physical force, may overawe the most determined man, even though there is neither threat nor vio- lence. The vast majority of wage-earners are peaceful, law-abiding men, who instinctively avoid trouble and the giving of offense. Such men would cease working, or refuse to work, if compelled to run the gauntlet of a picketing system such as the evidence shows is in force at and near complainant's premises in Goldfield. Notwith- standing the denials of the respondents, the affidavits of so many witnesses, guards, and employees who testify to what they have actually seen and heard, who have repeatedly passed by or made their way through squads of pickets at the crossing, and who were often the victim of ridicule, insult, and threat, leave no doubt in the mind of the court that the pickets were, in the main, members of the Goldfield Miners' Union; that they so assembled with a common p^lippose, and that purpose was to coerce and intimidate nonunion men who wished to work for, or who are already in the employ of ihe company. This conviction is strengthened by the fact that the complainant has 50 guards and deputy sheriffs in its employ for the protection of its employees. It is unreasonable to suppose that com- plainant would go to an expense of $250 per day for this purpose if guards were not needed. Otis Steel Co. v. Local Union No. 218 (C. C.) no Fed. 6q8. The fact that men have quit and refused to work, and the further fact that it is the custom to send and have the men go in a body between the mines and the company's boarding other, or speak to him, without the express or implied consent of that other person." GOLDFIELD CONSOL. MINES CO. V. GOLDFIELD MINERS' UNION. II89 house, and that guards are stationed on the way, show that there is something in the appearance, conduct, language, or numbers of the pickets which inspires fear among the employees of the com- pany. It is significant that all these precautions are taken while a body of federal troops is stationed only a few hundred yards away. It also appears that the company cannot, by reason of the fear which exists, obtain a sufficient number of men to operate its mines. Peacej^ ul picketing, in the ory, j snot only possible, but permissible. and, asTong as it 'is contined strictly and in good faith to gaining information, and to peaceful persuasion and argument, it is not for- bidden by law. Unfortunately, peaceful picketing is a very rare occurrence. This follows from the very nature of things.'' Men who want to work for an employer who is eager to employ them must be persuaded not to work — persuaded not to exercise their legal rights. In such case peaceable solicitation is of but little_ effect, and when it becomes persuasion by intimidation, it is univer- sally condemned, and has been declared unlawful in every jurisdic- tion where the question has been raised. ; These views will find abundant support, not only in the cases which have been already cited, but in the following authorities: In re Doolittle (C. C.) 2^^ Fed. 545; Mackall v. Ratchford, (C. C.) 82 Fed. 41; American Steel and Wire Co. v. Wire Dratvcrs', etc., Unions (C. C.) 90 Fed. 608, 614; Southern R. Co. v. Machinists' Union (C. C.) iii Fed. 54; Union Pac. R. Co. v. Ruef (C. C.) 120 Fed. 124; Knudsen v. Benn (C. C.) 123 Fed. 636; Atchison T. & S. F. Ry. Co. v. Gee (C. C.) 139 Fed. 582, 584; Pope Motor Car Co. v. Keegan (C. C.) 150 Fed. 148; Allis-Chahners Co. v. Iron M aiders' Union (C. C.) 150 Fed. 155, 179; Beck v. Ry. Teamsters' Protective Union, 118 Mich. 497, yy N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421 ; Vegclahn V. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443; Jensen v. Cooks' and Waiters' Union, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; Fletcher Co. v. International Ass'n of Machinists (N. J. Ch.) 55 Atl. 1077; O'Neil v. Behanna, 182 Pa. 236, 37 Atl. 843, 38 L. R. A. 382, 61 Am. St. Rep. 702; Winslozv Bros. Co. v. Building Trades Council, 31 Chicago Legal News, 337, cited in note to Jensen v. Cooks' and Waiters' Union, 4 L. R. A. (N. S.) 306. *"To picket the plaintiff's premises in order to intercept their team- sters or persons going there to trade is unlawful. It itself is an act of intimidation," Beck v. Teamsters' Union, supra, p. 520 — here the picketing was by groups of from five to twenty-five. So the collection of large crowds is held in itself intimidating in Fope Motor Co. v. Keegan, 150 Fed. 148 (1906), and AUis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 155 (1906), per Sanborn, J., p. 181; and see United States v. Kane, 23 Fed. 748 (1885), per Brewer, J. Where a crowd of strikers is collected around a non-union employe, it is idle for one joining the crowd to say that his purpose is peaceable solicitation. "Neither the time nor the circumstances were such as to make an appeal possible," Ideal Mfg. Co. v. Lndwig, 149 Mich. 133 (1907). In Vegelahn v. Guntner, 167 Mass. 92 (1896). strikers were enjoined from maintaining a picket of two men, while in Jonas Glass Co. v. Associa- tion, 77 N. J. Eq. 219 (1910), the injunction approved restrained the asso- ') 1 190 IRON MOULDERS UNION V. ALLIS-CIIALMERS CO. In Mackall v. Ratchford (C. C.) 82 Fed. 41, the defendants had joined a body of over 200 striking miners in marching with music and banners by one of the mines belonging to the complain- ant.^ The men marched and countermarched along the public high- way for three days, early in the morning and again late at night when the men were coming off shift, and on each occasion the men taking part in the procession stopped on each side of the road where the miners must cross in going to and from the mine. The avowed object of the strikers was to induce the miners to join the strike. There were no threats and no loud, boisterous, or taunting language. The court found that the purpose was to intimidate the men, and thereby induce them to abandon their work, and secure their co- operation in closing the mines. It was held that the conduct of the defendants was intimidating and unlawful, and they were punished for violating the preliminary injunction. IRON MOULDERS' UXIOX v. ALLIS-CHALMERS CO. Circuit Court of Appeals, Seventh Circuit, 1908. 166 Fed. Rep. 45. Appeal from the Circuit Court of the United States for the eastern district of Wisconsin ; the appeal is from a decree in a strike injunction suit, the fifth clause of which enjoined the defendants, four Wisconsin local unions of the National Organization of Iron jMoulders and some sixty individual members thereof "From con- gregating upon or about the company's premises or the sidewalk, streets, alleys or approaches adjoining or adjacent to or leading to said premises, and from picketing the said complainant's places of business or the homes or boarding houses or residences of the said complainant's employes." Baker, D. J. With respect to picketing as well as persuasion, we think the decree went beyond the line. The right to persuade new men to quit or decline employment is of little worth unless the strikers may ascertain who are the men that their late employer has persuaded or is attemptng to persuade to accept employm^fit: Under the name of persuasion, duress may be used ; "KitiF^TT'duress, not persuasion, that should be restrained and punished. In the_guise^of picketing, strikers may obstruct and annoy the newjaien«_and by in^- suit and menacing attitude intimidate them as effectttally as by physical assault. But from the evidence it can, ajways be deter- mined whether the efforts of the pickets are limited— to g'^tTtrrg into communication with the new men for the purpose_oUf5Vesenting arguments and appeals to their free judgments. Prohibitions of ciation "from loitering or picketing- on the streets near the premises of the complainant with the intent to procure the personal molestation and an- noyance of employees and persons willing to be employed." "See also Sherry v. Perkins, 147 .Mass. 212 (1888). and Springhead Spinning Co. v. Riley, L. R. 6 Eq. Cas. 551 (1868), strikers restrained from displaying intimidating banners and placards. I KARGES FURNITURE CO. V. AMALGAMATED, ETC., UNION. II9I persuasion and picketing, as such, should not be included,iiLlllfi^ decree. Karges Furniture Co. v. Amalgamated Wood Workers' Union, 165 Ind. 421, 75 N. E. 877, 2 L. R.' A. (N. S.) ySS; Everctt- Waddey Co. v. Typographical Union, 105 Va. i88, 53 S. E. 273, 5 L. R. A. (N. S.) 792.^ KARGES FURNITURE CO z'. AMALGAMATED. ETC., UNION. Supreme Court of Indiana, 1905. 165 Ind. 421. "A resides in a populous, a residential part of the city. B has established a saloon in the same square. Keeping a saloon there is a lawful business. Many of the neighbors patronize the saloon, and the business prospers. A disapproves of the business in that place, and withholds his patronage. He has the absolute right to withhold it. The other neighbors have the absolute right to bestow theirs. B has no absolute right to the patronage of either, and without patron- age will fail in business. Here it is plain that A has the absolute right to stand on the street corner and note all his neighbors who enter and leave the saloon, hail them on the street, or visit them_ at their respective homes, and by argument and persuasion (they being willing to listen) 1 endeavor to induce them to cease their patronage. A's object is to make B's business unprofitable and losing, and thus compel him to move away, and improve the peace and attractiveness of A's neighborhood. Now, if A converts all of his neighbors to his course of conduct by argument, reason, entreaty and other fair and proper means, and thereby effects the suppression of the saloon . and financial ruin of B, it is damnum absque injuria. A has done nothing but what the law protects him in doing.^ *"A union may appoint pickets or a committee to visit the vicinity of factories for the purpose of taking notes of the persons employed and to secure, if it can be done by lawful means, their names and places of resi- dence for the purpose of peaceable visitation."— Hadley, J. in Karges Fur- niture Co. v. Woodworkers' Union, 165 Ind. 421 (1905), p. 431; Searle Mfg. Co V Terry 106 N. Y. S. 438 (1905). See also Angellotti and Sloss, JJ.. m Pierce v Stablemen's Union, 156 Cal. 70 (1909); and see McPherson, J. m Union Pacific R. Co. v. Rucf, 120 Fed. 102 (1902), p. 114, and Rogers v. Evarts, 17 N. Y. S. 264 (1891). . ^ , „ ,j ^, xr t ^See the 3rd clause of the decree affirmed m Frank v. Herold, t6 J\. J. Eq 443 (1902). ' ^Compare Sherman, V. C in Booth v. Burgess, 72 N. J. Eq. 181 (1906). So long as the conduct of the defendants, whether an association or an individual, docs not go beyond merely giving to its members or other persons having like business interests, information of conduct on the plaintiff's part which it or he regards as injurious to such interests, or is coupled with appeals to the common interests of such persons or advise them to cease dealing with the plaintiff, there is no liability, Ulery v. Chi- cago Live Stock Ex.. 54 111. App. 233 (1894); Shinola Co. v. House of Krieg, 133 N. Y. S. 1015 (1912) ; contra, Olive & Sternenbcrg v. Van Patten, 7 Tex. Civ. App. 630 (1894) ; and compare Huskie v. Griffin, post, or where union workmen appeal to the class feeling of non-union workmen to join a strike. Vann. J. in National Protective Association of Steam Fitters v. Cumming, 170 N. Y. 315 (1902), western case, or where employers furnish I 192 GLAMORGAN COAL CO. V. SOUTH WALES >[IXERs' FEDERATION. 2. For inducing the breach of contracts. GLAMORGAN COAL CO. v. SOUTH WALES MINERS' FED- ERATION. In the Court of Appeal, 1903. L. R. 1903, 2 A'. B. Div. 545. The Glamorgan Coal Company, Limited, and seventy-three Other plaintiffs, owners of collieries in South Wales, brought this action against the Soiith-Walps- iMine-r^LEedgration, its trustees and officers, and several members of its executive council, claiming dam- ages for wrongfully and maliciously procuring and inducing work- men in the collieries to break their contracts of service with the ^pTamtiffST^and alternatively for wrongfully and maliciously conspir- ^lngTo ~^o s o. The wages were paid upon a sliding scale agreement rising and falling with the price of coal. In November, 1900, the council of the federation, fearing that the action of merchants and middlemen would reduce the price of coal and consequently the rate of wages, resolved to order a "stop-day" on November 9, and informed the workmen. This order wa s obeyed by over 100,000 meiV-who took a holiday and therebybroke their contracts of serv- ice. At a conference held on November 12, between delegates of the men and the council, a resolution was passed authorizing the council to declare a general holiday at any time they might think it necessary for the protection of wages and of the industry geriCrally. TnOttober and November, 1901, the council (as Bigham J. found) . ordered four stop-days for t he same reason as before, and the men took a holiday on each of those days in breach of their contracts. Bigham J. found that the action of the federation was dictated by 3ii_honest desire to forward the interest of the workmen and was iiotmlhy sense prompted by a wish to injure the masters, between ~v^'hont~and the men there was no quarrel or ill-will ; that having been requested by the men by the resolution of November 12, 1900, to advise and direct them as to when to stop work, the federation and its officers did to the best of their ability, advise and direct the men honestly and withmit malic e of any k ind__against the plaintiffs, and therefore had lawful justification or "exaise Tof what they did. -Vaughan Williams, L. J. In the present case the prima facie aj^tionabjejwrong is the interference with the contractual rights of the |iLaintiffSf and the question is whether there is sucj[i_sufficient to others in the same trade the names of strikers, JJ'abash R. Co. v. Young, 162 Ind. 102 (1903); Bradley v. Piersou. 148 Pa. St. 502 (1892); Rhodes v. Granby Cotton Mills, 87 S. Car. 18 (1910), and see Baker v. Metropolitan Life Ins. Co., 64 S. W. 913 (Ky. 1901), and Trimble v. Prudential Life Ins. Co., 64 S. W. 915 (Ky. 1901), holding that the prior agreement, not to em- ploy or to discharge persons of the plaintiff's class, being void as against public policy and so not obligatory upon them, his discharge in obedience thereto was his employer's voluntary act. See also. Rogers v. Evarts. 17 X. Y. S. 264 (1891), holding that a newspaper could not be restrained from appeal- ing to the public to support a strike. GLAMORGAN COAL CO. V. SOUTH WALES MINERS' Fl^DERATION. 1 193 justification for the defendants' interference as to exclude an action for procuring a breach of contract or for conspiracy. To say that the means employed by the defendants were illegal, because of the breach of contract, seems to me to be arguing in a circle ; and I dis- sent from the contention of the appellants, that just cause for inter- ference is excluded in cases where the advice actually given is to break a contract, and in consequence the contract is broken. It seems to me in the result that the only question in this case is whether the interference of the defendants was justified, and not whether the men individually could justify the breaches of contract, which of course they could not. I doubt very much whether an action would have lain against the aggregation of individual men for pro- curing the several breaches of contract, because I think there is a good deal to be said for the proposition that the community of in- terest of all these men following the same occupation in the South Wales coal fields entitled them to confer and act in concert, without rendering themselves liable to actions for, procuring breaches of contract by one another or for conspiracy. But the case is very much complicated by the existence of the federation, which, ac- cording to the decision in the Taff Vale Case, (1901) A. C. 426, is a thing which can own property, which can employ servants, and which can inflict injury, to which the Legislature has impliedly given the power to sue, and on which the Legislature has imposed the liability to be sued for injuries purposely done by its authority and procurement. I do not think that such a body is entitled to rely upon a defence based on its absolute identity with the aggregate of individual members who happen to constitute the imion. If such absolute identity existed it would follow that the union would be responsible for the aggregate damages resulting from the aggregate breaches of contract, and no action for procuring breaches of con- tract, or for conspiracy, would be necessary. * * * The federation and the members of their council, who are defendants, seek to base this justification on the suggestion that their relation to the men raises a duty on their part to advise the men, or, at all events, nega- tives their being mere meddlers. It was argued before us that the defendants were not mere advisers, but that they were actors who did the very thing complained of, in that they issued the notices or- dering the stop-days, and compelled reluctant men to break their contracts by staying away from work without giving proper notices tjo their employers, and that the view of the federation was that men who refused to stay away would be guilty of disloyalty to the federation ; but this argument does not convince me that the federa- tion were not acting as advisers, nor does the fact that the federa- tion actually issued the notices deprive the defendants of their character of advisers. It is not suggested in this case that the men stayed away from work under threats, intimidation, or physical com- pulsion. I think, therefore, the judgment of Bigham, J. must be affirmed for the reasons given by him. RoMER, L. J. The law applicable to this case is, I think, well settled. I need only refer to two passages in which the law is shortly 1 194 GLAMORGAN COAL CO. V. SOUTH WALES MIXERS FEDERATION. and comprehensively stated. In Qninn v. Leathen, (1901) A. C. 495, at p. 510, Lord Macnaghten said: "A violation of legal right committed knowingly, is a cause of action, and it is a violation of legal right to interfere with contractual relations recognized by law if there be no sufficient justification for the interference."^ And in the Mogul Steamship Co. v. McGregor, Gow & Co., 23 Q. B. D. 598, at p. 614, Bowen, L, J. included in what is forbidden "the inten- tional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it." But al- though, in my judgment, there is no doubt as to the law, yet I fully recognize that considerable difficulties may arise in applying it to the circumstances of any particular case. When a person has knowingly procured another to break his contract, it may be diffi- cult under the circumstances to say whether or not there was "suffi- cient justification or just cause" for his act. I think it would be extremely difficult, even if it were possible, to give a complete and satisfactory definition of what is "sufficient justification," and most attempts to do so would probably be mischievous. I certainly shall not make the attempt. In my opinion, a defendant sued for know- ingly procuring such a breach, is not justified of necessity merely by his showing that he had no personal animus against the employer, or that it was to the advantage or interest of both the defendant and the workman that the contract should be broken. I take the follow- ing simple case to illustrate my view. If A. wants to get a specially good workman, who is under contract with B., as A. knows, and A. gets the workman to break his contract to B.'s injury by giving him higher wages, it would not, in my opinion, afford A. a defence to an action against him by B. that he could establish he had no personal animus against B., and that it was both to the interest of himself and of the workman that the contract with B. should be broken. I think that the principle involved in this simple case, taken by me by way of illustration, really governs the present case. For it is to be remembered that what A. has to justify is his action, not as between him and the workman, but as regards the employer B. And, if I proceed to apply the law I have stated to the circumstances of 'the present case, what do I find? On the findings of fact it is to my mind clear that the defendants, the federation, procured the men to break their contracts with the plaintiff's — so that I need not consider how the question would have stood if what the federation had done had been merely to advise the men, or if the men, after taking ad- vice, had arranged between themselves to break their contracts, and the federation had merely notified the men's intentions to the plain- tiffs. The federation did more than advise. They acted, and by their agents actually procured the men to leave their work and break their contracts. In short, it was the federation who caused the in- jury to the plaintiffs. Now the justification urged is that it was ^ If there be no lawful justification, it is not necessary that the defend- ant's conduce should be actuated by ill will or hatred of the plaintiff or by a desire to injure him, Holder v. Cannon Mfg. Co., 135 N. Car. 392 (1904) ; Tubular Rivet & Stud Co. v. Exeter Boot Co., 159 Fed. 824 (1908>. GLAMORGAX COAL CO. V. SOUTH WALES MINERS* FEDERATION. II95 thought, and I will assume for this purpose rightly thought, to be in the interest of the men that they should leave their work in order to keep up the price of coal on which the amount of wages of the men depended. As to this, I can only say that to my mind the ground alleged affords no justification for the conduct of the federa- tion towards the employers ; for, as I have already pointed out, the absence on the part of the federation of any malicious intention to injure the employers in itself aft'ords no sufficient justification. But it was said that the federation had a duty towards the men which justified them in doing what they did. For myself I cannot see that they had any duty which in any way compelled them to act, or justi- fied them in acting, as they did towards the plaintiffs. And the fact that the men and the federation, as being interested in or acting for the benefit of the men, were both interested in keeping up prices, and so in breaking the contracts, affords in itself no sufficient justi- fication for the action of the federation as against the plaintiff's, as I have already pointed out. I think, therefore, that the appeal must succeed. Lord Macnaghten. It was argued — and that was the only ar- gument — that although the thing d ^ne was p rim a facie an action - able wrong, itwas justifi able under^ thearcumstahces. i hat there may be a justification for that which in itsett ts an actionable wrong, I do not for a moment doubt. But what is the alleged justification in the present case ? It was said that the council — the executive of the federation — had a duty cast upon them to protect the interests of the members of the union, and that they could not be made legally responsible for the consequences of their action if they acted hon- estly in good faith and without any sinister or indirect motive. The case was argued with equal candour and ability. But it seems to me that the argument may be disposed of by two simple questions. How was the duty created? What, in fact, was the alleged duty? The alleged duty was created by the members of the union them- selves, who elected or appointed the officials of the union to guide and direct their action ; and then it was contended that the body to whom the members of the union have thus committed their individ- ual freedom of action are not responsible for what they do if they act according to their honest judgment in furtherance of what they consider to be the interest of their constituents. It seems to me that if that plea were admitted there would be an end of all respon- sibility. It would be idle to sue the workmen, the individual wrong- doers, even if it were practicable to do so. Their counsellors and protectors, the real authors of the mischief, would be safe from legal proceedings. The only other question is. What is the alleged duty set up by the federation? I do not think that it can be better de- scribed than it was by Mr. Lush. It comes to this — it is the duty on all proper occasions, of which the federation or their officials are to be the sole judges, to counsel and procure a breach of duty. I agree with Romer and Stirling, L. J. J., and I think the appeal must be dismissed. The appellants' counsel did not deny that, in his view of the 1 196 GLAMORGAN COAL CO. V. SOUTH WALES MIXERS' FEDERATION. case, the defendants' conduct required justification, and it was con- tended (i) that all which the officials did was to advise' the men, and (2) that the officials owed a duty to the men to advise and assist them as they did. As regards advice, it is not necessary to consider when, if ever, mere advice to do an unlawful act is actionable when the advice is not libellous or slanderous. Nor is it necessary to consider those cases in which a person, whose rights will be violated if a contract is performed, is justified in endeavoring to procuire a breach of such contract. Nor is it necessary to consider what a parent or guardian may do to protect his child or ward. That there are cases in which it is not actionable to exhort a person to break a contract may be admitted; and it is very difficult to draw a sharp line separating all such cases from all others.^ But the so-called advice here was much more than counsel ; it was accompanied by orders to stop, which could not be disobeyed with impunity. A refusal to stop work as or- dered would have been regarded as disloyal to the federation. This is plain from the speeches given in evidence on the trial ; and in my opinion it is a very important element in the case which cannot be ignored. As regards duty, the question immediately arises — duty to do what? The defendants have to justify a particular line of conduct, which was wrongful, i. e., aiding and abetting the men in doing what both the men and the officials knew was legally wrong. The consti- tution of the union may have rendered it the duty of the officials to advise the men what could be legally done to protect their own in- terests ; but a legal duty to do what is illegal and known so to be is a contradiction in terms. A similar argument was urged without success in the case of Friendly Society of Stonemasons already re- ferred to. Then your Lordships were invited to say that there was a moral or social duty on the part of the officials to do what they did, and that, as they acted bona fide in the interest of the men and without any ill-will to the employers, there conduct was justifiable; and your Lordships were asked to treat this case as if it were like a case of libel or slander on a privileged occasion. My Lords, this contention was not based on authority, and its only merits are its novelty and ingenuity. The analogy is, in my opinion, misleading, and to give effect to this contention would be to legislate and introduce an en- tirelv new law, and not to expound the law as it is at present. It would be to render many acts lawful which, as the law stands, are clearlv unlawful. My Lords, I have purposely abstained from using the word "malice." Bearing in mind that malice may or may not be used to ^'In Legris v. Marcotte, 129 111. App. 67 (1906), it was held that no action lav against the mother of a pupil of a convent school for inducing the mother superior to dismiss the phnntiff, a pupil therein, in breach of her contract with the plaintiff's mother, by statements untrue but honestly be- lieved bv the defendant that the plaintiff's father suffered from a loathsome, contagious disease which the defendant feared that the plaintiff might com- municate to the other pupils. KEMP V. DIVISION NO. 24I. II97 denote ill-will, and that in legal language presumptive or implied malice is distinguishable from express malice, it conduces to clear- ness in discussing such cases as these to drop the word "malice" al- together^ and to substitute for it the meaning which is really in- tended to be conveyed by it. Its use may be necessary in drawing in- dictments ; but when all that is meant by malice is an intention to commit an unlawful act without reference to spite or ill-feeling, it is better to drop the word malice and so avoid all misunderstanding. This appeal ought to be dismissed with costs.^ 3. For the use of economic power as a means of compulsion. (a) Conflicting interests of employer and employed. (1 ) The right to strike. KEMP V. DIVISION NO. 241. Supreme Court of Illinois, 1912. 255 ///. 213. Mr. Justice Cooke. The question presented for our determi- _. nation is, whether a court of equity is authorized, upon application f^^^;;^ by the non-union employees, to restrain the union and its officers from calling a strike of the union employees in accordance with the vote previously taken by the union employees as members of the union, where the purpose of the proposed strike is to compel the ^Accord: Branch v. Roth, 10 Out. L. R. 284 (1904) ; Cotter v. Osborne, 18 Manitoba L. R. 471 (1909). Even though a strike is justifiable as being to better the work conditions of the strikers, the inducing of either an employee to break his contract of employment or a customer to break his contract with the employer is an ille- gal means of carrying it on, Jersey City Printing Co. v. Cassidy, post; Jonas Glass Co. V. Glass Blowers' Assn., 77 N. J. Eq. 219 (1910) ; Flacciis v. Smith, 199 Pa. St. 128 (1901), and see Thomas v. Cincinnati, N. O. & T. P. R. Co., 62 Fed. 803 (1894), and a strike to compel the discharge of an employee working under a binding contract of employment is unlawful no matter how great the advantage which would accrue to the strikers from his discharge, Read v. Friendly Society, etc., L. R. 1902, 2 K. B. 732. Nor will trade competition justify the procurement of breaches of con- tract with a trade rival, Dor emus v. Hennessy, 176 111. 608 (1898) ; Beekman V. Marsters, 195 Mass. 205 (1907), defendant persuaded a hotel company, which had by contract given the sole agency for booking accommodations therein to the plaintiff, that it had been unwise in so doing and induced it to give him the same rights as the plaintiff. It was said that "no casehas been cited which holds that the right to compete justifies a defendant in intention- ally inducing a third person to take away from the plaintiff his contractual rights." See also. Tubular Rivet & Stud Co. v. Exeter Boot Co., 159 Fed. 824 I 198 KEMP 1: DIVISION KO. 24I. employer to discharge the non-union employees who are engaged in the same class of work.^ In order to decide this question in the affirmative it would be necessary to hold that had the threatened act been completed, ap- pellees would have been entitled to maintain an action for damages against the union and its officers for accomplishing their discharge from the service of the Railways Company, and that such action at law would not afford an adequate remedy because of the financial inability of appellants to respond in adequate damages for the in- juries which appellees would suffer by reason of their discharge. The inadequacy of the remedy at law sufficiently appears from the bill, and it will only be necessary to determine whether the appellees would have been entitled to maintain the action for damages had their discharge been accomplished by appellants. That the appellees would sustain damages if discharged by the Railways Company, and that such discharge and consequent damages would be occasioned by the acts of the appellants, acting for and on behair of the union employees, clearly appears from the bill. The mere fact that one person sustains damage by reason of some act of another is not, however, sufficient to render the latter liable to an action by the former for such damage, but it must further appear that the act which occasioned the damage was a wrongful act and not performed in the exercise of a legal right, otherwise it is dainntifn absque injuria. Every employee has a right to protection in his employment from the wrongful and malicious interference of another resulting in damage to the employee, but if such interference is but the con- sequence of the exercise of some legal right by another it is not wrongful, and cannot, therefore, be made the basis for an action to recover the consequent damages. It is the right of every workman, for any reason which may seem sufficient to him, or for no reason, to quit the service of another, unless bound by contract. This right cannot be abridged or taken away by any act of the legislature, nor is it subject to any control of the courts, it being guaranteed to every person under the jurisdiction of our government by the thir- teenth amendment to the Federal constitution, which declares that involuntary servitude, except as a punishment for crime, shall not exist within the United States or any place subject to their jurisdic- tion. Incident to this constitutional right is the right of every work- man to refuse to work with any co-employee who is, for any rea- (C. C. A. 1st Circ. 1908), where the plaintiff, having had a dispute with the defendant, who had previously sold him machinery, over a twenty-five cent freight charge, the defendant notified another manufacturer, with whom it had an agreement for mutual protection from insolvent customers and who had sold machinery to the plaintiff, that the latter owed it an unpaid bill, whereupon the latter refused to deHver the machinery. ^ It appears from the plaintiff's bill that the plaintiffs, who had been members of the union, having become dissatisfied with the manner in which its funds had been expended had resigned therefrom. The vote of the Union declared, that its members would "cease to work with men who after receiv- ing benefits through our organization refuse to continue members." KEMP v. DIVISION NO. 24I. II99 son, objectionable to him, provided his refusal does not violate his contract with his employer ; and there is no more foundation for the contention that the employee commits an actionable wrong by in- forming the employer, before he leaves the service, that he will not work with the objectionable co-employee, and thereby occasioning his discharge, than there would be for the contention that the em- ployee would commit an actionable wrong by quitting the service and afterward stating to the employer his reason therefore, if, as a result thereof, the employer should choose to discharge the objectionable co-employee. In either case the employee is exercising a legal right, and although it results in damage to the objectionable co-employee, the latter has no cause of action against the former for causing his discharge. In the case at bar, had the union employees, as individ- uals and without any pre-arranged concert of action, each informed the Railways Company that they would no longer work with the ap- pellees because appellees were not members of the union, and had ap- pellees, in consequence thereof, been discharged because the Rail- ways Company chose to retain the services of the union employees, appellees would have had no cause of action against the union em- ployees for thus causing their discharge. Does the fact that the union, its officers and committees, acted as an intermediary between the union employees and the Railways Company, and under the cir- cumstances and for the purposes disclosed by the bill, render unlaw- ful the action by it, or them, which would have been lawful if per- formed by the union employees individually? Labor unions have long since been recognized by the courts of this country as a legitimate part of the industrial system of this nation. The purpose of organizing labor unions is to enable those em- ployees who become mem.bers to negotiate matters arising between them and their employers through the intermediation of officers and committees of the union and to accomplish their ends through con- certed action. If duly authorized by the employees to adjust any controversy arising between them and their employer, the union, its officers and committees are merely acting as agents of the employees in the matter. I The demand that appellees be discharged, and the threat that unless the Railways Company complied with the demand the members of the union would call a strike of the employees of the Railways Company, in effect meant no more than the mere statement that the union employees of the Railways Company would no longer work with the non-union employees, and if the Railways Company chose to retain in its employ the non-union men the union employees would quit the service of the Railways Company. No contract rights being involved, the union employees had a right to quit the service of the Railways Company, either singly or in a body, for any reason they chose or for no reason at all. If the only purpose of the union employees was to quit the service and permanently sever their connections with their employer, appellees would in nowise be damaged and could have no grounds for in- junctive relief. The bill discloses, however, that this was not the I20O KEMP V. DIVISION NO. 24I. only purpose of the members of the union. They did not propose absolutely to sever their connection with their employer, but by means of a strike to withdraw temporarily their services, and then, by such means as might be proper and permissible, seek to induce their employer to accede to their demands and reinstate them in the service under the conditions they sought to impose. By thus com- bining it becomes necessary to inquire whether the purpose of the combination was a lawful one. \ While it cannot be successfully contended that every strike is lawful, it is generally conceded by our courts that workmen may quit in a body, or strike, in order to maintain wages, secure ad- vancement in wages, procure shorter hours of employment or attain any other legitimate object. No threats are made and no violence is threatened. The mem- bers of the union have simply said to their employer that they will not longer work with men who are not members of their organiza- tion, and that they will withdraw from their employment and use such proper means as they may to secure employment under the desired conditions. It is insisted that a strike is lawful only in a case of direct com- petition, and as it cannot be said that the union employees are in any sense competing with appellees, their acts cannot be justified. It is true, as has been stated, that the proposed strike was not to be called for the direct purpose of securing better wages or shorter hours or to prevent a reduction of wages, any one of which would have been a proper object. The motive was more remote than that, but it was kindred to it. The purpose was to strengthen and pre- serve the organization itself. Without organization the workmen would be utterly unable to make a successful effort to maintain or increase their wages or to enforce such demands as have been held to be proper. The following view expressed by Mr. Chief Justice Holmes in his dissenting opinion in Plant v. Woods, 176 Mass. 492, in discussing facts similar to those here involved, is in our opinion a correct statement of the law and is applicable here : "That pur- pose was not directly concerned with wages. It was one degree more remote. The immediate object and motive was to strengthen the defendant's society as a preliminary means to enable it to make a better fight on questions of wages or other matters of clashing interests. I differ from my brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contest of labor effectual, and that societies of laborers lawfully may employ in their preparation the means which they might use in the final contest." If it is proper for workmen to organize themselves into such combinations as labor unions, it must necessarily follow that it is proper for them to adopt any proper means to preserve that organi- zation. If the securing of the closed shop is deemed by the mem- bers of a labor union of the utmost importance and necessary for the preservation of their organization, through which, alone, they hevi KEMP v. DIVISION NO. 24I. I20I been enabled to secure better wages and better working condi- tions, and if to secure that is the primary object of the threat to strike, even though in the successful prosecution of the object of the combination injury may result incidentally to non-union men through the loss of their positions, that object does not become un- lawful. It is apparent that in this case the sole purpose was to insure employment by the Railways Company of union men, only. The appellees had the right to retain their membership in the union or not, as they saw fit. On the other hand, if the members of the union honestly believed that it was to their best interests to be en- gaged in the same employment with union men only, and that it was a detriment and a menace to their organization to associate in the same employment with non-members, it was their right to inform the common employer that th©.y would withdraw from its service and strike unless members of the union, only, were employed, even though an acquiescence in their demands would incidentally result in the loss of employment on the part of the non-union men. It was only incumbent upon them to act in a peaceful and lawful man- ner in carrying out their plans. - The cases of Doremus v. Hennessy, iy6 111. 608, and Wilson v. Hey, 2T,2 id. 389, also relied upon by appellees, and the case of Purington v. Hinchliif, 219 id, 159, were all boycott cases.^ The primary object of a boycott being to inflict injury upon ""In Gillespie v. People, 188 111. 176, a statute making it a misdemeanor for an employer to prevent an employee, by threats, from joining a labor organization, or to discharge an employee because of membership in a labor organization, was held to be unconstitutional, and the right of an employer to discharge his employee solely because he would not resign from his union was upheld. That employes might suffer by remaining members of their unions, or that they might through necessity be compelled to disband the or- ganizations they had built up and maintained for their own proper benefit, could not affect the right of the employer. He has the right to manage his business as he sees fit. It would seem that labor organizations should be ac- corded the same right to manage their affairs and to determine what is best for their own interests. To deny them the right to determine whether their best interests required that they should be associated in their work only with members of their organization would imperil their very existence. If they have the right to make such a requirement, then when their employer pro- cures non-union labor they have the right to strike to enforce that rcciuire- ment, as that is the only peaceable method available to compel an adjustment of their controversies and to preserve the integrity of their organizations. From the facts as disclosed by the bill it can only be said that the members of the union, upon deliberation, concluded that their own welfare and busi- ness interests required that they cease working with those who were not members of their organization. This being their primary object, they have the right to quit the employment and go upon a strike and to use all proper means to secure their reinstatement upon the conditions desired." ^The case of Barnes v. Typographical Union, 232 111. 424 (1908), is dis- cussed and stated to be a case similar to O'Brien v. Peot^lc, 216 111. 354 (1905), and Franklin Union v. People, 220 111. 355 (1906), in that the injunction vio- lated in the two latter and asked in the former, was against picketing and other unlawful acts and so the statements condemning peaceful strikes fnr a "closed shop" were dicta., but the dissenting opinion of Scott and Fnrmer. JJ., seems to indicate that they at least beh'eved that the injunction affirmed was sufficiently broad to cover peaceable persuasion. 1202 KEMP V. DIVISION NO. 24I. another, has universally been held to be illegal. Here the primary object of the combination is to further the interests of the organiza- tion and improve and better the condition of its members. What- ever injury may follow to others is merely incidental'.'" The judgment of the Appellate Court is reversed and the de- cree of the circuit court is affirmed. Judgment reversed. Mr. Justice Carter, specially concurring: The intentional infliction of damage is a tort out of which an action may arise unless there is just cause for inflicting the damage. The difficulty, especially in labor disputes, arises in applying them, in order to decide whether there was just cause for inflicting the damage. It is difficult to conceive of a strike without damage to the par- ties involved in the dispute. The employees intend to deprive the employers of their labor and prevent them from getting others to take their places. They intentionally inflict harm as a means of compelling the employers to yield to their demands. The American and English authorities now all agree that employees have the same right as employers to combine for the legitimate advancement of their interests ; that for the purpose of advancing the legitimate in- terests of the members of a labor union, and not for the purpose of oppressing or injuring others, they may strike or threaten to strike. This may be done to secure a raise in wages, shorter hours, better sanitary conditions, or any other lawful purpose the primary object of which is to benefit themselves. And this principle is enforced even though, as a natural incident thereto, damage is inflicted upon the employef.]" On these questions of the management and control, as well as the rfghts, of great combinations of capital and labor, the rights of the public "as a distinct entity" must be considered. (Bige- low on Centralization and the Law, 7; 20 Harvard Law Rev. 436.) Individual liberty must be subject to such restraint as the public in- terests may require, and when the two conflict the former must yield. Adair v. United States, 13 Ann. Cas. 764, and note; 208 U. S. 161. In this case there is no question of violence, intimidation, un- lawful coercion, threats or other unlawful methods, unless it can be said that a threat to strike if non-union men are not discharged is intimidation, as that term is used in this class of cases. The courts of Massachusetts have held that a strike for purposes similar to those shown in the allegations in the bill in this case was not lawful ; that the officers and members of a labor union would be held in an action of tort for inducing an employer to discharge a workman because he did not belong to the union, (Plant v. Woods, supra; Berry v. Donovan, 188 Mass. 353) ; and that such a strike could be enjoined. (Folsom v, Lewis, 94 N. E. Rep. (Mass.) 316.)* In other jurisdictions in this country the same general rule has been *See also, Aberthaw Construction Co. v. Cameron, 194 Mass. 208 (1907). KEMP v. DIVISION XO. 24I. I2O3 laid down as followed in ^Massachusetts. (See Erdman V. Mitchell, 207 Pa. St. 79; Purz'is v. United Brotherhood, 214 Pa. St. 348; Lucke V. Clothing Cutters, yy Md. 396; Brennan v. United Hatters, supra; Perkins v. Pendleton, 90 jNIe. 166; Everett-lVaddey Co. v. Richmond Typographical Union, 105 \^a. 188; Beck v. Teamsters' Protective Union, 118 Alich. 497; i Eddy on Combinations, sec. 517-)' Other courts have upheld the contention of appellants on the question under consideration. In National Protective Ass'n v. Cum- ming, 170 N. Y. 315, it was held that a labor union might refuse to permit its members to work with fellow-servants who were mem- bers of a rival organization, and might notify the employers to that effect and that a strike would be ordered unless such fellow-servants were discharged ; that even though the employers objected to the discharge, neither they nor the organization of which they were members would have a right of action against the labor union or its members. In Gray v. Building Trades Council, 91 IMinn. 171, the court stated that the authorities very generally held that the mem- bers of a labor union may, singly or in a body, quit the services of their employer, and for the purpose of strengthening their associa- tion may persuade and induce others in the same occupation to join their union, and as a means to that end may refuse to allow their members to work in places where non-union labor is employed. In Jersey City Printing Co. V. Cassidy, 63 N. J. Eq. 759, the court said (p. 762) : "Union workmen who inform their employer that they will strike if he refuses to discharge all non-union workmen in his employ are acting within their absolute right, and, in fact, are merely dictating the terms upon which they will be employed."** The reasoning in this case was approved in Booth Bros. \. Burgess, 72 N. J. Eq. 181. To the same effect is Allis-Chalmers Co. v. Iron Moulders' Union, 150 Fed. Rep. 155, (18 Am. & Eng. Ency. of Law, — 2d ed. — 84; see, also. Clothing Co. v. Watson, 168 Mo. 133; Cooke on Combinations, sec. 60; State v. Van Pelt, 136 N. C. 633 ; Parkinson v. Building Trades Council, 154 Cal. 581 ; 18 Law Quar- terly Rev. I.) ^"Some of these cases do not strictly bear on the question here under discussion. In Erdman v. Mitchell, supra, the injunction issued was sus- tained on the ground, among others, that it was sought by the defendants to prevent the complainant from securing employment "with any other employer whatsoever." In Lucke v. Clothing Cutters, supra, certain non-union em- ployees sought admission to the union and were refused without any appar- ent reason. That case and Beck v. Teamsters' Union, supra, also involved violence. In Plant v. Woods, supra, there was a contest between two rival labor unions of the same craft ; at the time that the threat was made to strike if certain persons were not discharged it was intimated also that the employer, if he refused, "might expect trouble in his business." The opinion held that this last statement meant more than that the strikers would cease to work." See also accord with the cases cited, Martsll v. Victorian Miners' Associa- tion, 29 Vict. L. R. 475 (1903), and Barnes & Co. v. Berry, 156 Fed. 72 (1907). ' But see Ruddy v. United Association of Journeymen & Plumbers, 75 Atl. 742 (S. C of N. J. Chancery, 1910). I204 KEMP V. DIVISION NO. 24I. As heretofore stated that highest court of ]\Iassachusetts has upheld the contention of appellees. That court has also made rul- ings on kindred questions which tend quite strongly to uphold the conclusion reached in National Protective Ass'n v. Cumniing, supra. In Pickett V. Walsh, supra, it was held that a strike by the members of a bricklayers' and stonemasons' union in refusing to lay bricks or stone in the construction of a certain building unless also em- ployed to do the pointing of the mortar and unless other persons not bricklayers or stonemasons were discharged, did not entitle the lat- ter persons, when discharged by the contractor, to maintain a suit in equity to enjoin the acts of the members of the union,'^'. To hold that a labor organization has a right to strike because the members want the work other people are doing, and cannot be en- joined for so striking, does not seem to differ very materially, in principle, from the holding that a labor organization can strike be- cause certain fellow-laborers will not join the union. The result of the latter strike, if successful, will be to give the work of the non- union men to the union men. It would appear, also to be drawing a very fine distinction to hold that the primary object of a strike in such a case, was to aid the members of the labor union, while in the case now under consideration the primary object was not to help the members. The law concerning the right to labor or cease to labor for an employer applies to a single person or a combination of persons. If the members of a labor organization do not wish to work for the same employer with one or more other persons, they certainly have the right, under all authorities, to quit peaceably. Shall the courts hold employees liable in an action for damages because they refuse, on account of religious or race questions, to work with other em- ployees? Religious or race prejudice might be held to be based on arbitrary whim or caprice, without any reasonable basis of benefit to the competing workmen. The most that has ever been said by the courts in support of the contention of appellees is, that the refusal to work with non-union men, while it might strengthen the labor organization, was a result too remote from the controversy between the employer and employees to be considered such a direct benefit to the latter as to justify a strike on that account. Here we have co-equal rights in conflict, — the right of certain persons to be free to remain in their employment without interference, and the right of the members of the labor union to quit their employment for good cause or no cause at all. In the majority of cases the primary purpose of the strike is not to injure the non-unioa workmen but to benefit organized labor. (i8 Harvard Law Rev. 418, note 3.) Clearly, in this case the strike was not malevolent, — that is, on ac- ' He also cites and criticizes Minasian v. Osborne, post. See also, the dissenting opinion of Knowlton, J., in Reynolds v. Davis, 198 Mass. 294 (1908), p. 301, intimating that a strike for a closed shop, where its object is solely to obtain a monopoly of the labor supply and so be in a position to bargain advantageously at some future time for better work conditions, is illegal. KEMP V. DIXTSIOX XO. 24I. I205 count of ill-feeling toward the non-union workmen as individuals or primarily from a desire to injure them, — because the union work- men requested and demanded that the non-union workmen, who had formerly belonged to the union, be required to join the union or else be discharged. \Mnle it is sometimes argued that there may be a right to strike when, under certain circumstances, a threat to strike would be un- lawful, (20 Harvard Law Rev. 268,) on reason and authority the members of a labor organization have the legal right peaceably to threaten to do that which they may lawfully do. National Pro- tec five Association v. dimming, supra; National FireprooUng Co. v. Mason Builders, 169 Fed. Rep. 259 ; Park & Sons Co. v. National Druggists' Ass'n, 175 N. Y. i.^ In my judgment union workmen not bound by contract who inform their employer that they will strike unless he discharges non- union workmen in the same line of employment should be held to be merely dictating the terms of their own employment ; that it is not unlawful for members of a labor union to seek by peaceful methods to induce those engaged in the same occupation to become members of such union, and as a means to that end to refuse to allow union laborers to work in the same line of employment in a place where non-union laborers are employed. The proposed purpose of the strike not being unlawful it necessarily follows that an injunction should not issue as prayed for in the bill. Cartwright, J., Dunn, C. J., and Hand, J.: The rights and duties of employer and employee, or their relation to each other, have no connection with this case. The right asserted by appellees to be free from interference by appellants is not a right which in- ' See accord: Parker, C. J., in National Protective Assn. v. Cunnniug, 170 N. Y. 315 (1902), p. 329, "The defendant associations had the absolute right to threaten to do what they had the right to do" ; and see Heywood v. Tillson, 75 Maine 225 (1883), per Peter, J., p. 239, and Appleton.'C. J., p. 234. Contra, Freeman, J., dissenting in Payne v. Western, etc., R. Co., 13 Lea 507 (Tenn. 1884), holding that while a man ma}' discharge an employee at will "without any reason assigned" he may not "hold the threat" (of dis- charge) over the employe "in terrorem to fetter the freedom of the em- ployee, for the purpose of injuring an obnoxious person"; and see the very valuable discussion of the matter by Professor Jeremiah Smith, Crucial Issues in Labor Legislation, 20 Harv. L. R.. pp. 269 to 273, in which it is said that the view above expressed in the principal case is open to the objection, inter alia, that "it overlooks the distinction between unconditionally exercising a right and offering to exercise it (or refrain from exercising it) on condition that the offeree shall take action which is intended to produce (and does pro- duce) damage to a third person." A similar distinction is recognized in other branches of the law. So one is legally free to prosecute or not to prosecute a thief who has stolen his goods, but if he threatens to prosecute the thief unless he return the goods and on their return he then does not prosecute, he is guilty of compounding a felony. So one, threatening another to tell the truth about him and obtaining money as the price of his silence, is guilty of blackmail, and see Smith v. Bromley, 2 Douglas 696 (1781), Joannin v. Ogil- vie, 49 Minn, 564 (1892), and Kilfatrtck v. Germania Life Ins. Co., 183 N. Y. \6Z (1905), where money obtained as the condition of doing somethina which the doer was legally free to do or not, as he pleased, was recovered back as money obtained by duress. I206 KEMP v. DIVISION XO. 24I. heres in the Railways Company and the question whether a strike would be a wrong to it is not involved. The bill is based on the ground that there would be no strike but that the appellees would be discharged. There is no reason to suppose that the threat would not be effective, and the question here is whether the appellants can be permitted to drive the appellees out of employment because the> do not choose to belong to the union and contribute to a political party or other purposes of which they do not approve. If it can be conceded that what one may lawfully do in pur- suance of a legal right two or more may lawfully agree to do jointly, and the only difference is not in principle but in the consequences which may result from doing the act in combination, certainly no one can deny that if such an act as was threatened in this case could not lawfully be done by an individual it could not be done by a com- bination of numerous individuals constituting Division 241. The only difference would be that a single individual could not accom- plish the injury, while a combination of 4,500 employees would be certain to procure the discharge of appellees.^ The question whether an individual can lawfully, for his own gain, procure the discharge of another from his employment was settled by this court in London Guarantee Co. v. Horn, 206 111. 493, in accordance with the principles declared in Doremus v. Hennessy. There is no possible ground of distinction between the rights which a corporation, within its chartered powers, may exercise and those enjoyed by individuals, and it was there held that such an act as was threatened in this case by the appellants is a wrongful and unlawful act, which will authorize a recovery of damages. There have been a few cases adopting the view that because the simultaneous quitting or withdrawing from work of a body of workmen is not unlawful in itself as against the employer, it cannot become unlawful on account of a malicious motive to injure other workmen in the exercise of their right. The case of Allen v. Flood, App. Cas. I, decided by the House of Lords, was generally inter- preted as an example of that doctrine. It was there held that the appellant had violated no legal right of the laborers discharged, that no unlawful means were used to procure their discharge, and that appellant's conduct was not actionable, however malicious or bad the motive might have been. The decision in Allen V. Flood has been qualified, explained, and, as generally understood, has been overruled in England. In Qiiinn v. Leathern, (1901) A. C. 495, its effect was explained away as being a case where there was no combination but only an act by the defendant expressing his own views, and as holding that as an act which does not amount to a legal injury cannot be actionable on account of a bad motive. In Gihlan v. National Amalgamated Laborers' Union, (1903) 2 K. B. Div. 600, the secretary of a trade union notified the foreman of plaintiff's employer that other men • See Romer, J., in Gihlan v. National Amalgamated Laborers' Union. L. R. 1903, 2 K. B. 600. KEMP v. DIVISIOX XO. 24I. 120/ would be called out on a strike unless the plaintiff was discharged. The object was to enforce payment of a debt due to the union, which would be an advantage to the union and increase its resources and be a benefit more direct and immediate than increasing membership, and it was held that the discharge of the plaintiff so procured was unlawful. The case of National Protective Ass'n v. Cumming, 170 X. Y. 315, was a contest between two rival labor organizations, one of which had been organized by a laborer who had failed to pass the examination required by the other organization. The qualifica- tions and standard of admission of that organization were lower than those of the other, and the objection was to working with men not qualified according to the standard of the objecting organization. The court was divided, and a great deal was said in the majority opinion which had only remote connection with the question in- volved and w^hich has not met with the approval of the courts or law writers generally. There is no question, here, of competency, fitness, danger to other employees, race, color, religion, or any other thing that would make association unpleasant or objectionable. The question in this case was not involved in that one, but the decision of the same court in Curran v. Galen, 152 N. Y. 33, was upon sub- stantially the same question here in issue. That was the case of an individual laborer, and the court held that if the purpose of an or- ganization was to coerce other workingmen to become members under the penalty of loss of employment the purpose was unlawful. The right of eyery laborer to dispose of his labor as he may choose for the support of himself and those dependent upon him is as sacred as the right to carry on any lawful business or any other right of the citizen. Governments and courts would be useless if they fail to protect the laborer in the enjoyment of such a right. It can only lawfully be interfered with by one in the exercise of an equal or superior right, and that is the ground upon which the right to obtain the place of another in direct and lawful competition is sustained. The right of a labor organization to enforce a closed shop for the mere purpose of strengthening the labor organization in future contests with the employer is not competition, and is not of the same character or equal to the right of the individual to dis- pose of his labor at his own wall. There is not the slightest reason to suppose that the Railways Company would permit a strike to be called, with the consequent disastrous effects to its business, for the sake of retaining the appellees in its employment. They would undoubtedly be discharged, and the accomplishment of that result for the purpose of gaining the remote and indirect advantage to Division 241 would give a right of action to the appellees for the consequent damage. The case is therefore one where a court of equity ought to interpose to prevent the threatened danger, and in our opinion the judgment of the Appellate Court should be affirmed. I208 SCIIWARCZ Z'. IXTKRXATIOXAL &C. UXIOX. SCHWARCZ r. INTERNATIONAL LADIES' GAR:iIENT WORKERS' UNION Supreme Court of New York, 1910. 124 X. Y. Supplement, 968. GoFF, J. By its affirmance (in 198 N. Y. 587), of the decision of the Appellate Division in McCord v. TJiompson-Starrett Co., 12() App. Div. 130, 113 N. Y. Siipp. 385, the Court of Appeals has de- clared that it is against the piilDlic policy of the state for employers who control practically the whole trade in a community to combine for the purpose of compelling workmen to join a particular union as a condition of employment. The result is a development of the doc- trine enunciated in Curran v/Calen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496, in which case the court said : "Public policy and the interests of society favor the utmost freedom in the citizen to pursue his lawful trade or calling, and if the purpose of an organization or combination of workingmen be to hamper or restrict that freedom and, through contracts or arrange- ments with the employers, to coerce other workingmen to become members of the organization and to come under its rules and condi- tions under the penalty of the loss of their position, and of depriva- tion of employment, then that purpose seems clearly unlavv^ful and militates against the spirit of our government, and the nature of our institutions." This language was quoted with approval by Ingraham, J., in his dissenting opinion in the ]\IcCord Case, but his dissent was not on the law as expounded, but on the question of the power of the board of governors of defendant association to issue an order requiring its members not to employ workmen wdio refused to join. "Such an agreement," said the court in Jacobs V, Cohen, 183 N. Y. 207, 76 N. E. 5, 2 L. R. A. (N. S.) 292, III Am. St. Rep. 730, "when partici- pated in by all or by a large proportion of employers, becomes op- pressive and contrary to public policy, because it operates generally upon the craftsmen in the trade and imposes upon them as a pen- alty for refusing to join the favored union the practical impossibility of obtaining employment at their trade and thereby gaining a liveli- hood." If the rule laid down in the McCord Case be the law, and it must be accepted as such, being the latest expression of the Court of Appeals, it must be applicable to workmen as well as to employ- ers. It would be repugnant to reason to hold that it applies to one and not to the other. What the employers may not do the workmen may not do. If a combination of one to refuse employment except on condition of joining a union be against public policy, a combina- tion of the other to cause refusal of employment except on condi- tion of joining a union is alike against public policy. This refusal was sought to be caused by the demand of the defendant union made upon all the employers in the trade that the non-union men already employed should be discharged in two weeks unless they joined the union. A discharge under such circumstances would be a refusal SCHWARCZ V. INTERXATIOXAL &C. UNION. I2O9 to employ. Appropriate here is the method of reasoning employed by Ward, J., in Irving v. Joint District Council (C. C.) i8o Fed. 896: "To take the converse of the proposition. Will the defendants admit that employers may combine to prevent any employer from using union labor? May the employers agree not to sell to or con- tract with any one who deals with an employer who uses union labor? Either of these propositions is destructive of the right of free men to labor for or to employ the labor of any one the laborer or the employer wishes." "Whatever one man may do alone," said Vann, J., in the Na- tional Protective Ass'n v. Cumming, 170 N. Y. 315, 321, 338, 63 N. -• 369, 376, 58 L. R. A. 135, 88 Am. St. Rep. 648, "he may do in combination with others, provided they have no unlawful object in view," a proposition which was assumed to be correct by Parker, C. J., writing the prevailing opinion. That the purpose of a combina- tion is material in considering its legality has been held in Ciirran V. Galen, supra; Beattie v. Callanan, 82 App. Div. 7, 81 N. Y. Supp. 413, and Schlang v. Ladies' Waist Makers' Union, 67 Misc. Rep. 221, 124 N. Y. Supp. 289. That the purpose to be considered is its immediate, not its ulte- rior, purpose, was held in Mills v. U. S. Printing Co., 99 App. Div. 605, 631, 91 N. Y. Supp, 185. In McCord v. Thompson-Starrett Co., supra, the illegal purpose of the combination to drive workmen into a particular union invalidated a bond given by one of its mem- bers to secure obedience to orders of the association. There may have been an ulterior purpose of the combination to protect its mem- bers against blackmail and extortion. That was a legal purpose, but did not validate the bond in suit. The primary purpose of this suit is not to better the condition of the workmen, but is to deprive ether men of the opportunity to exercise their right to work and to drive them from an industry in which, by labor, they may have acquired skill, and which they have a right to pursue to gain a livelihood, without being subjected to the doing of things which may be disagreeable or repugnant. That this is the motive which animates the combination of defendants is clear from the correspondence, the negotiations, the conferences, and the acts and conduct disclosed in papers before the court. At the conference, the manufacturers conceded all demands of the unions, except that they proposed to arbitrate the questions of wages and Saturday half holidays throughout the year and except that the)^ refused to concede a closed shop. ^ Their offer of arbitration was refused. Some 10 days after negotiations had been discon- tinued, counsel for the unions made a proposition to one of the man- ufacturers, looking towards a settlement of the whole controversy, as follows : "The association is to obligate each of its members to employ union men as long as the union will be able to furnish union men who can do the work properly. Within two weeks the non-union men shall join the union. ... I am certain an agreement will be reached on all other matters." I2I0 PICKETT Z'. WALSH. In insisting upon the closed shop it was douhtless the intention of the union to get the whip hand of the manufacturers by perfect- ing a powerful organization. That agency would thereafter insure respect for their demands for a continuance of the wages and hours which the manufacturers are now ready to concede, but here, as in the INIcCord Case, the ulterior purpose of the union is immaterial if the immediate purpose is unlawful. That it is unlawful has been shown. {_^The distinction between the present case and Natiofial Pro- tective Association v. Cumming, supra, is twofold. In the National Protective Association Case there was no proof of illegal motive. It had not been found at Special Term and the Court of Appeals could not infer it, while here the motive is found to be illegal. It is distinguishable again in that there was no wide combination to drive non-union men out of their trade in a community. Here the com- bination is directed against every non-union man in the trade in the borough of Manhattan.^ PICKETT V. WALSH. Supreme Judicial Court of Massachusetts, 1906. 192 Mass. 572. LoRiNG, J. This suit in equity comes before us on an appeal from a final decree. There seems to be three causes of action upheld by the decree. Finally, the plaintiffs sought to be protected against a strike by the defendants in order to get the work of pointing for the members of their unions.^ We are brought to the question of the legality of the strike in the case at bar, namely, a strike of bricklayers and masons to get the work of pointing, or, to put it more accurately, a combination by the defendants, who are bricklayers and masons, to refuse to lay bricks and stone where the pointing of them is given to others. The defendants in effect say we want the work of pointing the bricks and stone laid by us, and you must give us all or none of the work. The case is one of competition between the defendant unions and the individual plaintiffs for the work of pointing. The work of pointing for which these two sets of workmen are competing is work which the contractors are obliged to have. One peculiarity of the case therefore is that the fight here is necessarily a triangular one. It necessarily involves the two sets of competing workmen and * Compare also Ruddv v. United Assn., 75 Atl. 742 (S. C. N. J. C. H. 1910) and Graham v. Knott, 14 Brit. Columbia, 97 (1908). In many cases the court regards as important if not controlling the fact that the object of the defendants is to obtain a monopoly of the labor market or of the supply of the commodity dealt in. Berry v. Donovan, 188 Mass. 353 ri905). Reynolds v. Davis, 198 Mass. 294 (1908)"; and see Bro7vn & Allen v. Jacobs' Pharmacy, post, and Gatsow v. Buening, cited in the notes thereto. ^ Only so much of the opinion is given as concerns this, the third ground of a.ctiorj upon whi'h the third clause of the decree was based. PICKETT V. WALSH. 121 1 the contractor, and is not confined to the two parties to the contract, "as is the case where workmen strike to get better wages from their employer or other conditions which are better for them. In this re- spect the case is hke Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598 ; S. C. on appeal ( 1892) A. C. 25. The right which the defendant unions claim to exercise in car- rying their point in the course of this competition is a trade advan- tage, namely, that they have labor which the contractors want, or, if you please, cannot get elsewhere ; and they insist upon using this trade advantage to get additional work, namely, the work of point- ing the bricks and stone which they lay. It is somewhat like the advantage which the owner of back land has when he has bought the front lot. He is not bound to sell them separately.^ To be sure the right of an individual owner to sell both or none is not decisive of the right of a labor union to combine to refuse to lay bricks or stone unless they are given the job of pointing the bricks laid by them. There are things which an individual can do which a com- bination of individuals cannot do. But having regard to the right on which the defendants' organization as a labor union rests, the correlative duty owed by it to others, and the limitation of the de- fendants' rights coming from the increased power of organization, we are of opinion that it was within the rights of these unions to compete for the work of doing the pointing and, in the exercise of their right of competition, to refuse to lay bricks and set stone unless they were given the work of pointing them when laid. The result is harsh on the contractors, who prefer to give the work to the pointers because they get from the pointers better work with less liability at a smaller cost. Again, so far as the pointers (who cannot lay brick or stone) are concerned, the result is dis- astrous. But all that the labor unions have done is to say you must employ us for all the work or none of it. They have not said that if you employ the pointers you must pay us a fine, as they did in Carew v. Rutherford, 106 Alass. i. They have not undertaken to forbid the contractors employing pointers, as they did in Plant v. Woods, 176 Mass. 492. So far as the labor unions are concerned the contractors can employ pointers if they choose, but if the con- tractors choose to give the work of pointing the bricks and stones to others the unions take the stand that the contractors will have to get some one else to lay them. The effect of this in the case at bar appears to be that the contractors are forced against their will to give the work of pointing to the masons and bricklayers.- But the fact that the contractors are forced to do what they do not want to do is not decisive of the legality of the labor union's acts. That is true wherever a strike is successful. The contractors doubtles?- would have liked it better if there had been no competition between the bricklayers' and masons' unions on the one hand and the indi- vidual pointers on the other hand. But there is competition. There " See somewhat similar cases put bv Brannon, J., in Transportation Co. v. Standard Oil Co., SO W. Va. 611 (1902), p. 619. I2I2 PICKETT f. WALSH. being competition, the}' prefer the course they have taken. They prefer to give all the work to the unions rather than get non-union men to lay bricks and stone to be pointed by the plaintiffs. Further, the effect of complying with the labor unions' demands apparently will be the destruction of the plaintiffs' business. But the fact that the business of a plaintiff is destroyed by the acts of the defendants done in pursuance of their right of competition is not decisive of the illegality of the acts. It was well said by Ham- mond, J. in Martell v. IF kite, 185 Alass. 255, 260, in regard to the right of a citizen to pursue his business without interference by a combination to destroy it : "Speaking generally, however, competi- tion in business is permitted, although frequently disastrous to those engaged in it. It is alwavs selfish, often sharp, and sometimes deadly." We cannot say on the evidence that pointing is something for- eign to the w'ork of a bricklayer or a stonemason and therefore something which a union of bricklayers and stonemasons have no right to compete for or insist upon. On the contrary the evidence shows that in Boston the pointing is done to some extent by brick- layers and stonemasons, and there is no evidence that the trade of pointers exists outside that city. The protest of the defendant unions against the plaintiffs being allowed to organize a pointers' union is not an act of oppression. It is not like the refusal of the union in Oidnn v. Leathern, (1901) A. C. 495, to work with the non-union men or to admit the non-union men to their union. The defendants' unions are not shown to be unwilling to admit the plaintiffs to membership if they are qualified as bricklayers or stonemasons." But the difficulty is that the plain- tiffs are not so qualified. They are not bricklayers or masons. The unions have a right to determine what kind of workmen shall com- pose the union, and to insist that pointing shall not be a separate trade so far as union work is concerned. They have not undertaken to say that the contractors shall not treat the two trades as distinct. \\'hat they insist upon is that if the contractors employ them they shall employ them to do both kinds of work. The application of the right of the defendant unions, who are composed of bricklayers and stonemasons, to compete with the in- dividual plaintiffs, who can do nothing but pointing (as we have said,) is in the case at bar disastrous to the pointers and hard on ihe contractors. But this is not the first case where the exercise of the right of competition ends in such a result. The case at bar is an instance where the evils which are or may be incident to compe- tition bear ver^ harshly on those interested, but in spite of such evils competition is necessary to the welfare of the community. "The evidence tended to show that their application for a charter for a "pointers" union was refused by the Boston Trade Council of the American Federation of Labor on the ground that pointing was properly a part of the bricklayers' and masons' trade and that one at least of the bricklayers' unions- opposed the application. WILLCUTT & SONS CO. V. J. J. DRISCOLL. 121 3 It follows that the third clause of the decree must be stricken out. 4 . WILLCUTT & SONS CO. v. J. J. DRISCOLL Supreme Judicial Court of Massachusetts, 1908. 200 Mass. 110. Hammond, J. We are of opinion therefore that this strike must be regarded as simply a strike fqr higher wages and a shorter day. It was not merely a sympathetic strike, as in Pickett v. Walsh, 192 Mass. 572, 587, or one whose immediate object was only re- motely connected with the ultimate object of the strikers, as in Plant V. JVoods, 176 Mass. 492. It was a direct strike by the defendants against the other party to the dispute, instituted for the protection and furtherance of the interests of the defendants in matters in which both parties were directly interested and as to which each party had the right, within all lawful limits, to determine its own course. Such a strike must be treated as a justifiable strike so far as respects its ultimate object. But however justifiable or even laudable may be the ultimate object of a strike, unlawful means must not be employed in carry- ing it on ; and it is contended by the plaintiff that the use of fines and threats of fines, under the circumstances disclosed in the record, are unlawful. The question how far the imposition of fines by an organiza- tion upon its members where the effect is to injure a third party is justifiable, was considered in this court in Martell v. White, 185 Mass. 255 ; and it was there adjudged that the imposition of such a fine by which members of the organization were coerced into refus- ing to trade with the plaintiff, not a Vnember, to his great damage, was inconsistent with the ground upon which the right to competi- tion in trade is based, and as against him was not justifiable. That principle, if applicable to the facts of this case, is decisive. The majority of the court are of the opinion that it is applicable 'In Reynolds v. Davis, 198 ^lass. 294 (1908), Knowlton, J., in his dis- senting opinion intimates that a strike for a closed shop is lawful if there is not work enough for all union men desiring employment, if non-union men are employed. In National FircprooUng Co. v. Mason Builders' Assn., 169 Fed. 259 (1909), an agreement was made between defendants, an association, which cornprised a minority of the master builders of New York City, and the various bricklayers' unions, including practically all the bricklayers therein, that the master builders should not sub-let interior work, but should give preference in such work to the men employed on the walls and providing that no union man should be allowed to work for a builder not accepting these regulations, which, however, any builder, whether a member of the associa- tion or not, couW accept. The plaintiff having obtained a contract under the George Fuller Co. to do the fireprooting in a certain building, the defendants notified them of the above regulations and then struck work, thus forcing the plaintiff to cancel his contract. It was held that the object of these provisions was to advance the interests of the defendant bricklayers and not .solely to injure the plaintiff, and that they had the right to enforce obedience thereto by strike. I2I4 WILLCUTT & SONS CO. V. J. J. DRISCOLL. and hence that there should be a decree for the plaintiff enjoining intimidation or coercion by fines. Under ordinary circumstances this opinion would end here. But inasmuch as a minority of the court still think that the principle laid down in Mart ell v. White, with reference to intimidation by fines imposed by an organization upon its members, is not correct, and also, perhaps, that, even if correct, it is not applicable to the facts of this case, and are unwilling to accept that principle as law in this Commonwealth notwithstanding the authority of that case, it may be well to say something in addition to what was there said. We are also somewhat influenced to take this action by reason of the importance of the question and its relation to a part of the law still in the nebulous but clearing stage. Before entering more fully upon the discussion it is well to get a clear conception of what the case is. To begin with, it is not a contest between the members of two competing labor unions, as was in Plant v. Woods, iy6 Alass. 492, nor is it a conflict between an organization and one of its members in a matter in which no third party is interested. Neither does the plaintiff corporation contend that it has any right to compel the intimidated workmen to enter its employ. Nor is it seeking, in behalf of a member of a union, to en- force or defend the right of such member to be free from a fine or threat of a fine. The plaintiff has no concern with the imposition of fines by a union upon its members unless, and only so far as, such an imposition is in violation of a right of the plaintiff. Even if the fine be illegal the plaintiff has no standing in court to explain unless some one of its rights is invaded to its damage. In a word, the case is not between the party imposing the fine and the person fined, nor between the persons fined as such and a third party who suffers, but on the contrary it is between such third party and the party impos- ing the fine. If it were only between the person fined and the party imposing the fine, then wnth some degree of plausibility it might be said that the former had no right to complain, or at least had waived that right ; but it is manifest that neither of the immediate parties to the fine can, either by an agreement among themselves or by w^aiver, justify the invasion of the right of a third party, if any he has, to object to it.^ What is the complaint of the plaintiff'? It is a corporation en- gaged in the construction of buildings and employing a number of men. Its men left its employ on a strike. To keep them away the defendants threatened with fines such as were members of the unions, and by that means kept them away from the plaintiff when ^ "An interference with the right of a third part}^ can not be justified upon the ground that the intruder is acting in accordance with an agreement between him and some other person. In a word, so long as a fine is imposed for the guidance of members in matters in which outside parties have no interest, or in which there is no violation of a right of an outside party, then no such party can complain. But when the right of such a party is invaded, it is no defense, either to the person fined or to those who have imposed the fine, that the invasive act was done in accordance with Uifc by-laws of an association." WILLCUTT & SONS CO. V. J. J. DRISCOLL. 121 5 Otherwise they would have stayed ; — all to the great damage of the plaintiff. Shortly stated the case is this: The plaintiff's men are being coerced by threats of a fine to leave its employ, greatly to its injury, the fines to be levied in accordance with the by-laws of a vol- untary association of which the proposed victims are members. This injury to the plaintiff is intended by the defendants. Has the plaintiff any standing in equity to an injunction against the infliction of such injury? The right of an employer to free labor is subject to the right of the laborer to hamper him by many expedients short of fraud or intimidation amounting to injury to the person or property of those who desire to enter his employ, or threats of such injury. For in- stance, persuasion not amounting to such intimidation is lawful, and perhaps the same may be said of social pressure even when carried to the extent of social ostracism, not including however any threat in a business point of view. . See Vegelahn v. Guntner, 167 Mass. 92; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 769; 20 Harvard Law Review, 267. Social rights and privileges must take care of themselves. The law cannot prescribe with whom one shall shake hands or associate as a friend. In the case before us, standing opposed to each other, are these two rights : the right of the employer to a free labor market, and the right of the striking employees in their strife with him to impair that freedom ; and the crucial question is, how far can the latter go ? On which side of the line shall stand the matter of coercion by fines imposed by a union upon its members to impair that freedom. ^s_ the employer's right to a free market subject to this system of niu- tual intimidation and coercion by fines, or is the right to establish such a system subject to the right of the employer to a free market? I If the employer's right is not subject to this method of intimidation, then of course as against him it is unlawful. If it is subject to it, then he cannot complain, no matter how severe the blow. So far as concerns the law in this Commonwealth at least, some things seem to be settled. It is settled that the flow of labor to the employer cannot be obstructed by intimidation or corecion produced by means of injury to person or property, or by threats of such in- quiry. Vegelahn v. Guntner, 167 Mass. 92. There can be no doubt that finding is one method of injuring a man in his estate, and that a threat to fine is a threat of such an. injury. It is urged however that although this method of intimidation is generally an invasion of the employer's right to a free market and therefore illegal, yet when the intimidation is exerted by a union upon its members in accordance with its by-laws in a strike whose object is legal, it is justifiable and legal.- To this the obvious reply ' Strike benefits and transportation to other places where work has- been or can be obtained, given by a union in accordance with its pre-ex- isting rules, to its members, is not an improper inducement, Everett-lVaddcy Co. V. Richmond Typographical Union, 105 Va. 188 (1908), in which it is also held that it is not unlawful to hold out such advantages as an agree- i2l6 WILLCUTT & SONS CO. V. J. J. DRISCOLL. is that the rule of freedom to contract is founded upon principles of public policy, that each party to a contract is interested in the freedom of the other party, that it can make no difference to the| public or to the employer (who in the present case is the other party), that the person intimidated is or is not a member of the society intimidating. In either case the injury is the same and is from the same cause, namely, intimidation. The workman is no longer free. In Longshore Printing Co. v. HozvcU, 26 Ore. 527, the court, after speaking of the general right of labor unions to make rules, proceeds thus : "It must be understood, however, that these associations, like other voluntary societies, must depend for their I membership upon the free and untrammelled choice of each individ ual member. No resort can be had to compulsory methods of any jLkind to increase or keep up or maintain such membership. Nor is it permissible for associations of this kind to enforce the observance of their laws, rules and regulations through violence, threats or in- timidation, or to employ any methods that would induce intimida- (tion or deprive persons of perfect freedom of action." The keynote on this matter is struck in Booth v. Burgess, 65 Atl. Rep. 226, 233, in the following language : "No surrender of lib- erty or voluntary agreement to abide by by-laws on the part of the employees who are first coerced, made by them when they enter their labor unions, can . . . affect the right of the complainant to a free market, which right he will enjoy for all it may be worth if these employees are permitted to exercise their liberty. The em- ployees may be able to surrender their own right, but they certainly cannot surrender the rights of other parties," citing Boutzvcll v. Marr, 71 Vt. i, and Berry v. Donovan, 188 Mass. 353. And in Dozvnes v. Bennett, 63 Kans. 653, 662, there is a recognition of the same doctrine : "This is not the case of a union or association of persons intimidating its members from engaging in a specific service offered by an employer, and standing ready and open to be entered. In such cases, on a showing of continuous damage caused by inabil- ity to secure employees, preventive relief has been afforded." Boiit- zvellx. Marr, 71 Vt. i. / An opposite doctrine leads to strange conclusions. For in- ment to induce non-union men to join the union in order to enjoy them. But the payment of money to a non-union man to abandon employment is said to be bribery and unlawful, and so it is intimated is the gift of trans- portation. In Barnes v. Typographical Union, 232 111. 424 (1908), the Supreme Court of Illinois affirmed an injunction restraining the defendants from offering transportation or similar pecuniary inducements to employees or would be employees to leave or refuse the complainant's employment, and among the acts of which Hammond, J. in the principal case, states that the defendants have been guilty, is the offer of such transportation. See also, Frank v. Her old, 63 N. J. Eq. 446 (1902), Pitney, V. C, contra, Cum- berland Glass Mfg. Co. v. Glass Bottle Blowers' Assn., 59 N. J. Eq. 49 (1899), Reed, V. C. refused to restrain the president of the association from giving money to strikers and offering it to induce workers to strike; Rogers v. Evarfs. 17 N. Y. S. 264 (1891) ; Johnston Harvester Co. v. Mein- hardt, 60 How. Pr. 168 (1880), offers of transportation to places where other work could be obtained. WILLCUTT \- SONS CO. Z'. J. J. DRTSCOLL. J21J Stance, if ten men banded together undertake by coercion to keep two other men from entering an employment, and they do this in order to force the employer, for lack of ability to get the two, to employ them (the ten), the employer's right to a free market is in- \ aded, and if he suffers thereby he may proceed either in equity or law against the ten ; but if the ten men first induce the two other men to enroll themselves in the same organization with the ten, then, it is said, the ten men may by fines or threats of fines so intimidate the two men as to frighten them from the employer ; and that such intimidation is no violation of the employer's right. A rule of law which leads to such inconsistencies is not to be adopted. It does not distinguish between coercion and non-coercion, but between organ- ized coercion and sporadic coercion. It makes a distinction entirely foreign and immaterial to the ground upon which the right to a free market is based. If it be said that fines are not in themselves illegal, and that consequently their use cannot be illegal, the answer is that when they are used as a method of coercion and create a kind of coercion inconsistent with the right of a person they are, as against that per- son's right, illegal. It is said that the member fined may take his choice either to leave the organization or abide by its rules to w^hich he has before assented, and that where there is a choice there can be no coercion, the answer is that in almost every conceivable case of coercion short of an actual overpowering of the physical forces of the victim there is a choice. The highwayman, who presents his cocked pistol to the traveller and demands his purse under pain of instant death in case of refusal, offers his victim a choice. He may either give up his purse and live, or refuse and die. In Carezv v. Rutherford, io6 j\lass. I, the victim had a choice either to pay a fine or take the con- sequences of a refusal. And so the member of a labor union has the choice either to pay the fine or leave the union. It is difficult to realize what that choice is in these days of organized labor? Is it too much to say that many times it is very difficult, indeed practically impossible, for a workman to get bread for himself and his family by working at his trade unless he is a member of a union. It is true he has a choice between paying his fine and not paying it, but is it not frequently a hard one? May not the coercion upon him some- times be most severe and effective. Such is not a free choice. And a nprket filled with such men is not a reasonably free market, \ ( If it be said that without fines the same result may be indirectly reached by the organization by exercising two rights, namely, the right to expel a member and the right to charge an initiation fee upon his return, and since the same result may thus be legitimately reached, nobody is harmed if it be reached by fine, the reply is that if the purpose of expulsion and the subsequent initiation fee be each a part of one and the same transaction, namely, the imposition of a fine, and the two acts are in substance the procedure by which the intimidation by fine is exercised, and such is the intention, then there may be a strong reason for holding that such a procedure is I2l8 WILLCUTT & SONS CO. V. J. J. DRISCOLL. one imposing a fine and should be treated as such. Ordinarily, how- ever, each separate act should be treated by itself and its validity judged by itself. The fact that separately and independently exe- cuted they incidentally may have the effect of a fine is immaterial on the question of the right to fine. The fact that a result may be incidentally reached in one way does not show that the same result may be lawfully reached in another way. In considering this question we cannot lose sight of the great power of organization. It should be taken into account when one is considering where the line should be drawn between the right of the employer to a free market and the right of workmen to inter- fere with that market by coercion through the rules of a labor union. It is not universally true that what one man may do any number of men by concerted action may do. In Pickett v. Walsh, 192 Mass. 572, Loring, J., after alluding to the great increase of power by combination, says : "the result of this greater power of coercion on the part of a combination of individuals is that what is lawful for an individual is not the test of what is lawful for a combination of in- dividuals ; or to state it in another way, there are things which it is lawful for an individual to do which it is not lawful for a com- bination of individuals to do." In many ways the labor unions have succeeded in bettering the condition of the laborer ; and so far as their ultimate intentions and the means used in accomplishing them are legal they are entitled to protection to the extreme limit of the law. But their powers must not be so far extended as to encroach upon the rights of others. It is clear that if the power to intimidate by fine be regarded as one of the powers which labor unions may rightfully exercise, then the right to a free market for labor, — nay, even the right of a laborer to be free, — is seriously interfered with, to the injury both of the public and the employer as well as the laborer.^ Sheldon, J. That is, the relative right of the plaintiff to en- joy a free labor market is modified and limited by the right of its employees to enter into an agreement or combination to secure higher wages or to improve otherwise the conditions of their employment, and for this purpose to engage in a strike and to use all rightful means to insure the success of their strike by checking, and if they can do so without resorting to wrongful means, by wholly stopping the free flow of labor to the plaintiff'. But, if this be so, manifestly the plaintiff's right to a free labor market is not only not a para- mount right, but it is and must be subject to the higher right of the defendants to combine and to carry on a strike by the use of what- ' See the graphic picture drawn by Stevenson, V. C in Booth v. Bur- gess, 72 N. J. Eq. 181 (1906), of the power of the business agent of a labor union who "snaps his fingers" and its members "against their will are coerced to refrain from renewing their contracts for labor with their employers'' (against whom they have no complaint but who use material made by an "unfair" manufacturer) "by the fear of fines, expulsion from their labor ■unions, social ostracism and poverty." WILLCUTT & SONS CO. V. J. J. DRISCOLL. I219 ever lawful means may be in their power ; and we cannot see how this right can be further limited than by restricting- it to acts which are not forbidden by law, either as being unlawful in themselves or at variance with a sound public policy. Accordingly, the question now to be decided is whether we can say that the members of a labor union have no right, acting in conformity with rules previously established, to impose a fine upon one of their own members if he goes to work or continues to work for an employer against whom a justifiable strike has been declared in accordance with those rules, where there is no contractual right or duty on either side for the performance of such work. If we are right in what thus far has been said, the answer to this question must depend upon whether the imposition of such a fine is either forbidden by some rule of law or is found to be incon- sistent with some principle of public policy. But in our opinion neither of these affirmations can be made. L_We cannot make the law to be enforced against labor unions in this respect more stringent than that which is applicable to other organizations established for proper purposes. Such unions are voluntary associations. They are formed for proper purposes. Their objects are not only lawful, but commendable. The right of labor unions to enforce, under penalty of fine or expulsion, compli- ance by all their members with rules and regulations which have been adopted because deemed by a sufficient majority to be for the common good and which are not in themselves inappropriate or un- lawful, is necessary to their continued existence. It is to the united action of all their members that such organizations owe their strength and ability to accomplish the results at which they aim. Doubtless^ persons who do not agree in the desirability of those re- sults or in the wisdom or efficiency of the means adopted to secure them, cannot be required to continue as members against their will, any more than they could have been compelled to become members in the first instance. So long, however, as such membership con- tinues and the organization still serves the purpose for which it was created, "the will of the individual must," as was said by the court in Wabash Railroad v. Hannahan, 121 Fed. Rep. 563, "consent to yield to the will of the majority, or no organization whether of society into government, capital into combination, or labor into coali- tion, can ever be effectual. The individual must yield in order that the many may receive a greater benefit. The right of labor to or- ganize for lawful purposes and by organic agreement to subject the individual members to rules, regulations and conduct prescribed by the majority, is no longer an open question in the jurisprudence of this country."* [ * This last sentence is from the opinion of Adams, J. in Wabash R. R. V. Hannahan, 121 Fed. 563 (1903), p. 71, in which it was held immaterial that a large majority of the workmen principally interested, voted against the strike fas to this see, also, Saiihbcrry v. Coopers' Union, 147 Ky. 170 (1912). He further says, "The will of the individual must consent to yield to the will of the majority, or no organization either of society into government, cap- I220 WILLCUTT & SOXS CO. V. J. J. DRISCOLL. In Quinn v. Leathern, (1901) A. C. 495, the fines imposed were not treated as in themselves objectionable, but the decision was put upon the ground that the defendants had acted, not for any purpose of advancing their own interests as workingmen, but for the sole purpose of injuring the plaintifif in his trade. See language of Lord Stroud, p. 514. So in Brennan v. United Hatters, 44 Vroom, 729, it was assumed that the imposition of fines, even up to the amount of $500, might be lawful ; but the case turned upon the fact that the plaintiff had not had such notice and trial as were guaranteed to him by the rules of the union. In Booth v. Burgess, 65 Atl. Rep. 226, the object of the fines was to enforce a strike which was merely sympathetic or in the nature of a boycott, such as was held to be unjustifiable in Pickett v. Walsh, 192 Mass. 572. In Purvis v. United Brotherhood, 214 Penn. St. 348, a strong decision against the co- ercion of an employer by sympathetic strikes against his customers, it was assumed throughout the opinion that the officers of the labor union would not have been prevented from enforcing by peaceful means upon their own members the rules of the union forbidding its members to work upon non-union material ; and this would in- clude the right to impose the penalties established by those rules. In Mogul Steamship Co. v, McGregor, 23 Q. B. D. 598, afiirmed on appeal in (1892) A. C. 25, it appeared that conformity to the rules of the association was enforced by a penalty of dismissal, a severer and more drastic remedy than a mere pecuniary penalty, which prac- tically could usually be enforced only by expulsion, and this fact was relied upon by the plaintiff upon the appeal (p. 30) ; but both Lord Watson and Lord Morris declined to treat this threat of ex- pulsion as involving any wrongful intimidation (pp. 43, 49, 50). The member of a union upon whom such a fine has been lawfully imposed in accordance with by-laws to which he has himself pre- viously assented, is no respect in the predicament of a highwayman's victim who has the bare option of parting with his money to save his life or of losing his life without thereby saving his money. ' The situation of one who finds himself compelled to choose between two alternatives, however distasteful, which he has brought upon him- self and neither of which is unlawful, is in no way comparable to that of one who is compelled by wrongful force to elect between submitting to one of two alternative injuries, both of which are un- lawful. An argument which rests upon such a comparison is with- out foundation. Nor can we say that the imposition of fines, not in themselves unlawful and not injurious to the plaintiff except as they restrict an inferior right by the lawful exercise of a higher right, is to be re- ital into combination, or labor into coalition, can ever be effected. The in- dividual must yield in order that the many may receive a greater benefit." And see Taft, J. in Thomas v. Cincinnati, etc., R. Co., 62 Fed. 803 (1894), [). 817, "The officers they appoint ... if they choose to repose such authority in an}' one, may order them, on pain of expulsion from the order, peaceably to leave the service of their employer because any of the terms of their employment are unsatisfactory." riJl WILLCUTT .^ SONS CO. V. J. J. DRISCOLL. I22I garded as contrary to a sound public policy. Gloomy vaticinations of injurious results to be apprehended from' the excessive power which labor unions may acquire by their combination of many in- dividuals into one body do not greatly impress us. The power of capital hitherto has not been found insufficient to prevent other than proper advantages from being gained by the representatives of labor, nor does it seem to us likely to be insufficient in the future. If 'it shall appear that there is such a danger, yet we cannot alter the law by denying to labor unions the rights and powers which the law gives to all lawful associations. The law does not do so vain a thing as to allow the formation of labor unions and to declare their right to initiate and by lawful means to carry on a justifiable strike, and then refuse them the use of the only practical means by which their acknowledged rights can be secured. We do not consider that the point actually decided in Martcll V. l^hite was necessarily inconsistent with the view here taken. So far, however, as the general doctrine of that case is applicable to fines imposed for a violation of rules lawful in themselves and not sought to be enforced for a purpose either strictly unlawful or op- posed to public policy or inconsistent with the general welfare of the community, we are not willing to follow it. We do not think that the court can distinguish between the coercive efifect of larger and smaller fines, or say as matter of law that they do, by reason merely of their magnitude, amount to moral intimidation. All fines are necessarily coercive in their operation, if they have any effect what- ever. LoRiNGr, J. For the reasons stated in the opinion of J\lr. Jus- tice Sheldon I should agree with the conclusion there reached were it not for the recent decisions made by this court in Martell v. White, 185 Mass. 255. In my opinion the decision in Martcll v. White ought not to be overruled in the case at bar although it was wrong, provided laborers and labor unions will not suffer injustice from our standing by it. All that was decided in Martcll v. White and all that is up for decision in the case at bar is that the imposition of a fine is the use of unlawful means. It was not decided in Martcll v. White that in case a member of a labor union (which has instituted a strike to get higher wages, for example) goes to work for the employer in question at the old rate, he cannot be expelled. Neither was it decided in Martcll v. White that since the labor union, in the case put above, can expel such a member, it cannot, if he goes to work for the old rate of pay, threaten to expel him for the purpose of keeping him in the ranks of the labor union, that is to say, in the ranks of the strikers. Further, it was not decided in Martcll v. White that if a mem- ber in the case put above is subject to expulsion because he has de- serted the union and gone to work for the lower rate of pay, the union is not at liberty to impose upon him the payment of a sum of 1222 MINASIAX Z'. OSBORN. money for the common benefit as a condition of his reinstatement. In such a case the union is not bound to expel the deserter. It is at hberty to take him back. On the other hand, since it can expel him and at the same time is at liberty to take him back, it can take him back on such terms as it may choose to impose, including the payment of a sum of money to the union for the common benefit. And finally, since it may do this it may threaten to do this to keep such a fellow member from going back to work at the old lower rate of pay. There is nothing in Martell v. White which de- nies or pretends to deny this right to a labor union. A payment imposed upon a deserting member of a labor union under the circumstances stated above is not, using words accurately, a fine. The difference is that a fine is imposed upon a former mem- ber for breaking the by-laws while he was a member, and can be collected whether the deserting member returns to the ranks of the union or not, while such a sum as is described above is a condition of the reinstatement of a member who has been expelled or is sub- ject lo expulsion, and cannot be collected if the member does not choose to be reinstated. But although there is a difference between a fine and such a payment as is described above, the difference between the two is of no practical consequence to labor unions. So long as a labor union can impose upon a member who is subject to expulsion the payment of a sum of money as a condition of his reinstatement, the right to impose a fine (giving to that word its accurate meaning) is of no practical consequence. No labor union in the past ever attempted to collect a fine from a member who had left the union and did not seek reinstatement. And no labor union will ever find it worth while to enter on such litigation. The game is not worth the candle. It is because the difference between these two things is not of practical consequence that I think that Martell v. White should not be over- ruled.^ MINASIAN V. OSBORN. Supreme Judicial Court of Massachusetts, 1911. 210 Mass. 250. Appeal from a decree in the Superior Court restraining the de- fendants from maintaining a strike for the purpose of compiling the plaintiff Minasian, to discharge his father, employed by himfa s] a helper. "^It is clear that the imposition of a fine upon an employer who has employed non-union workmen, the payment of which is enforced by threat to strike or a threat to impose such a fine if such workmen are employed is unlawful, and such a workman thereby driven from or refused employ- ment can recover in an action at law punitive damages as well as damages for his loss of employment. Carter v. Oster, 134 Mo. App. 146 (1908), and the employer paying such fine under fear of a strike may recover it back in an action of monev had and received as paid under duress, Burke v. Fav, 128 Mo. App. 690 (1908) ; March v. Bricklayers^ Union, 79 Conn. 7 (1906), Carcw V. Rutherford, 106 Mass 1 (1870), fine imposed for v'olation of the MINASIAX r. OSBORN. I223 RuGG, C. J. The plaintiff Minas, a skilled laster by trade, had a contract for labor as laster with the Randall Adams Company, terminable at the will of either. With the consent of his employer, he had in turn employed as helper his father, Hampartzoon, the other plaintiff, who was not able to do all the work of a laster, and who received no wages from the Randall Adams Company and had no relation as servant to it. The work was piece work, and Minas alone received, and was entitled to receive, the compensation for their joint labor. This method of work was known in the craft as "contract" or "cross-handed." The defendaiit^^Osborne, who is the business agent of the Last- ers' Union Local No. i, notified the employer, the Randall Adams Company, that unless the father was discharged the shop's crew would be "pulled out." The father did not work for a day or two, but returned to work after the superintendent of the employer told the son, Minas, to get him and put him to work again. The next day all the other lasters went out on an orderly strike, which was indorsed by the Union. As a consequence, both plaintiffs have lost their employment. The Lasters' Union substantially controls the labor market in the manufacture of shoes, for practically all lasters are members of the Union. The effect of the strike, if continued, will be to prevent Randall Adams Company from continuing busi- ness unless it discharges Minas or compels him to dispense with his assistant. This is not a strike which involves any inquiry as to the plain- tiff's habits, conduct or character which might render them unfit or improper shopmates. It is not for the establishment of any system of shop work or rules directed to the curtailment or limitation of production or interference with reasonable industrial advancement. It is not aimed to prevent the highest efficiency of labor or the use of modern or economical machinery. It is not instituted to promote a closed shop or to compel anybody to join or to leave any union, nor primarily to cause the discharge or employment of any person or class of persons. If this results in any instance, it is incidental and not essential to the chief end. It does not go to the extent of interdicting the absolute and unqualified right of the individual to work, if he desires, contrary to the will or rules of a combination. It is not based upon objections to shop rules established for the rea- sonable protection of the rights of the employer or promotion of the good order or economical and efficient service of employees. It is not directed against the education of apprentices or those who are trying to learn the trade. It does not appear to be for the establish- ment or preservation of a monopoly, and this is not indicated by the framework of the bill. It is not directed against piece work as distinguished from day work, nor against any other method of em- unions' rule that the employer should not have any of his work done out- side of his own yard, paid under threat of strike. It would seem that a strike to prevent such work to be so done would be now held in Massa- chusetts to be for a lawful purpose, see Pickett v. IValshj 192 Mass. 572 (1906). 1224 DK.MIXUO i'. CRAIG. ployment where superior skill, dexterity or swiftness secures com- mensurately higher rewards than inefificiency, carelessness or sloth- fulness. It does not directly or immediately affect the general con- venience, necessities or safety of the public. Its ostensible object is not used as a mask for any ulterior design. The direct and main purpose is to secure a change in a system of work which is^asserted to be unjust in its practical operation. It is contended that this system in its final analysis resulted in an unequal distribution of the work of lasting in slack times and thus affected the wages of the strikers, although it did not so oper- ate when there was work enough to keep all the employees busy all the time. The finding of the Superior Court was in substance to this effect and it is supported by evidence. There is nothing to indicate that the strike was not undertaken in good faith against this system. An honest effort to better conditions of employment by laborers is lawful. The right of the plaintiffs to work upon such terms as they chose is incident to the freedom of the individual. That "right . . . could not be taken away ... or interfered with by the defendants unless it came into conflict with an equal or superior right of theirs." DeMlnico v. Craig, 207 Mass. 593, 599. The right of one person to dispose of his labor freely is not superior to the same rights in others. The right of one to work under unsanitary conditions does not go to the extent of preventing others from strik- ing in order to secure a mitigation of these conditions merely l)e- cause such a strike may interfere with the desire of the first to con- tinue to work under those conditions. The same principle applies where a distribution of work discriminates between men of average capacity and gives an undue preference to one over another in times when there is a dearth of work. A system of giving out work which, under existing conditions, operates unjustly, is a condition of employment in which all workmen aff'ected by it in a particular shop may have a legal interest. Nor is injury to the employer a reason why a strike to remedy such a condition should be enjoined. DEMINICO V. CRAIG. Supreme Judicial Court of Massachusetts, 1911. 207 Mass. 593. LoRiNG, J. Whether the purpose for which a strike is insti- tuted is or is not a legal justification for it, is a question of law to be decided by the court. To justify interference with the rights of others the strikers must in good faith strike for a purpose which the court decides to be a legal justification for such interference. To make a strike a legal strike it is necessary that the strikers should have acted in good faith in striking for a purpose which the court holds to have been a legal purpose for a strike, but it is not neces- sary that they should have been in the right in instituting a strike for such a purpose. On the other hand a strike is not a strike for a legal purpose because the strikers struck in good faith for a pur- DKMIXICO 7'. CRAIG. 122 j pose which they thought was a sufficient justification for a strike. As we have said already, to make a strike a legal strike the purpose of the strike must be one which the court as a matter of law de- cides is a legal purpose of a strike, and the strikers must have acted in good faith in striking for such a purpose. The purpose of the strike here_in questioii_has been found to have been to get rid of tvv erfofemen becaus e some of the workmen had personal objections tq_and_a_di§like for them. Or, to use the words of their own couiTsel, because these foremen were "distaste- ful to (some of) the employees."^ We are of opinion that that is not a legal purpose for a strike. The plaintiff had a right to work and that right oThTs could not be taken away from him or interfered with by the defendants unless it came into conflict with an equal or superior_right-oi-theirs. The defendants' right to better their con- dition is such an equal right. But to humor their personal objec- tions, their likes and dislikes, or to escape from what "is distasteful" to some of them is not in our opinion a superior or an equal right. It is doubtless true that in a certain sense the condition of work- men is better if they work under a foreman for whom they do not have a personal dislike, that is to say, one who is not "distasteful" to them. But that is not true in the sense in which those words are used when it is said that a strike to better the condition of the work- men is a strike for a legal purpose. One who betters his condition only by e?t!3pinl'^oni what he merely dislikes and by securing what he likes does not better his condition within the meaning of those words in the rule that employees can strike to better their condition. The defense in the case at bar has not failed because a strike to get rid of a foreman never can be a strike for a legal purpose. We can conceive of such a case. If, for example, a foreman was in the habit of using epithets so insulting to the men that they could not maintain their self-respect and work under him, a strike to get rid of him in our opinion would be a legal strike. It is not neces- sary in the case at bar to define such cases and lay down their limits. It is wiser, in our opinion, in matters such as we are now dealing with, to go no farther than to decide each case as it arises. What we have just said is said to prevent misapprehension as to what is now decided. What we now decide is that a strike to get rid of a foreman because some of the employees have a dislike for him is not a strike for a legal purpose.- 'The master in his findings of fact states that this dislike was caused by the rigid but not oppressive enforcement of the employer's reasonable rules. Mn Reynolds v. Dazis, 198 Mass. 294 (1908), Knowlton, J. dissenting intimated that a strike to procure the discharge of non-union men would be lawful, if as such they were personally objectionable to the union strikers. In Giblan v. National Amalgamated Laborers' Union, L. R. 1903, 2 K. B. 600; Blanchard v. Newark Joint District Council, 77 N. J. L. 389 (1909), and Connell v. Stalker, 45 N. Y. S. 1048 (1897), it is held that a strike or threat to strike to compel the employer to discharge the plaintiff because he refused to pay money alleged to be due the union or to pay a fine, or unless he pays it, is unlawful. In Conway v. Wade, L. R. 1909, A. C. 506, 1226 HUSKIE V. GRIFFIN. HUSKIE V. GRIFFIN. Supreme Court of New Hampshire, 1909. 75 N. H. 345. Case, for interfering with the employment of the plaintiff in the Mc- Elwain shoe factory. Trial by jury. At the close of the plaintiff's evidence a nonsuit was ordered, subject to his exception. Transferred from the January term, 1909, of the superior court by Plummer, J. The plaintiff's evidence tended to prove that while he was employed by the defendant he applied for an increase of wages and was told by the defendant's superintendent that he was at liberty to leave at any time if he could better himself. He sought employment elsewhere and one day received a note stating that he could have work at the McElwain factory. He showed the note to Griffin's superintendent, who made no objection to the pro- posed action, but at once went to the office and drew the plaintiff's wages for him. As soon as the plaintiff had left. Griffin telephoned to Trull, super- intendent of the !\IcElwain shop. Trull's testimony as to the conversation with Griffin was in part as follows : "He telephoned and said there was a man from my factory came up to his factory with a note and hired, or was about to hire, one of his men, right in the middle of the day, and wanted to know if I thought that was a nice thing to do. I said it was not, and that I would not hire the man; and when I found out about it I told our man not to hire him." Q. "That is, you instructed your agent not to hire him " A. "Yes, sir; but after that Griffin told me I could hire him, but I told him I didn't want him." Q. 'That was a httle ironical, wasn't it, Mr. Trull?" A. "Well, during the same conversation, right afterward, he said, 'You can have him if you want him, you can hire him.' " Q. "And you understood that to be a little ironical, didn't you?" A. "I didn't understand anything about it." Q. "Well, you didn't hire him, anyhow?" A. "No, sir; I didn't hire him." On cross-examination the witness stated the conversation more favor- ably to the defendant. When the plaintiff reached the McElwain factory he was refused em- ployment. He then returned to the defendant, who complained because the plaintiff received a note in the shop. The conversation became heated, and the defendant oTef used to comply with the plaintiff's request to telephone to Trull and adjust the matter. Peaslee, J. Beyond the issues of fraud and malicious injury lies one which has caused much of perplexity and conflicting adjudication. How far advantage may or may not lawfully be gained by appeal, persuasion, or it is held that it is for the jury to say whether a controversy as to the dis- charge of an employee, asked for such a purpose, was a "trade dispute" within the meaning of Section 3 of the British Trade Disputes Act of 1906. See also, Joost v. Svndicat, Cour d'Appel de Chamberv 1893, Sirey 93, 2, 139, cited in Perrault v. Gauthier, 28 Can. Sup Ct. 241 (1898); Oberle v. Syndicat des Ouvriers, Cour d'Appel de Lyon 1894, Dalloz 94, 2, 305 ; and Monier v. Renaud, Cour de Cassation 1896, Dalloz 1896, 1, 582 and Ames, 18 Harvard Law Review 418. i HUSKIE z: GRIFFIN. 1227 threat of loss of future favor, — whether those not involved in the initial contest may be dragged into it by these and kindred means, — are questions which courts, jurists, and publicists have not found it easy to answer. The more recent authorities reason that, as the right to deal or not to deal with others is inherent in the idea of Anglo-Saxon liberty, prima facie a man can demand an open market; and since this is so, one who interferes with this free market must justify his acts or respond in damages. Thus far these authorities are uniform; but when they proceed to the determina- tion of what amounts to a justification, they diflfer widely. The cause is not far to seek. The rule which they apply is that of reasonable conduct, yet they discuss and decide each case as though it involved only a question of law~ In reality, the issue is largely one of fact, and the result is what would be expected. Judges are men, and their decisions upon complex facts must vary as those of juries might on the same facts. Calling one determination an opinion and the other a verdict does not alter human nature, nor make that uniform and certain which from its nature must remain variable and uncertain. While these cases go too far in what they decide as questions of law, yet the test they constantly declare they are applying is the true one. The standard is reasonable conduct under all the circumstances of the case. Berry v. Donozwi, 188 Mass. 353; Macauley v. Tierney, 19 R. I. 255; Doremus V. Hennessy, 176 111. 608. In this state the question of reasonable conduct, whether in relation to tangible property or to intangible rights, is one of fact. Ladd v. Brick Co., 68 X. H. 185, and cases cited. But while the question to be settled is within the province of the jury, there are still legal propositions involved in the case. It must be determined whether there is anything for the jury to weigh — whether the evidence is not conclusive one way or the other upon the issue of reasonable conduct. At the present time no one would think of submitting to a jury the question whether a peaceful strike for higher wages was reasonable. They would be told, as matter of law, that such action was within the laborer's rights. So there may be conduct which is clearly unreasonable, or not justi- fiable. An illustration of such conduct is presented by the second ground for recovery iri this case. One may not interfere with his neighbor's open market or "reasonable expectancies" solely for the purpose of doing harm. It has been said, however, in several cases that a wrongful motive can not convert a legal act into an illegal one, and many judges have thought this was the end of the law upon the question. They seem to proceed upon a theory of absolute right in the defendant, which is at variance with the holding in many of the same cases, that the defendant may be called upon to justify his conduct. Indeed, the authorities are practically unanimous to the effect that the defendant is liable unless he shows a justification. If this is true, it follows, as a matter of course, that his right is not absolute. It is a qualified one, and the rightfulness of its exercise depends upon all those elements which go to make up a cause for human action. The reasonable- ness of the act can not always be satisfactorily determined until something is known of the state of the actor's mind. Since the defendant is called upon to justify, — to show reasonable cause for the interference with his neighbor's right, — it seems to clearly follow that where his only reason is his malicious wish to injure the plaintiff, he 1228 PARKINSON CO. 7'. lUILDIXG J KADKS COUNCIL. has no justification. It is a contradiction in terms to saj- that a desire to do harm for the harm's sake can be called a just motive. The same reason applies here. If the evidence had been conclusive that the act was done solely from a malicious motive/ a verdict would have been directed for the plaintiff. It is not improbable that there are other plain cases — cases where there is nothing for the jury to pass upon. The third issue in this case does not come within that class. It can not be said that all reasonable men would conclude that every reasonable man would or would not do what the defendant did, even though he acted honestly and from a proper motive. If any one doubts this assertion, he has but to read the cases v/here this and kindred questions have been discussed and decided as those of law. Vegelahn v. Guntiicr, 167 Mass. 92; Berry v. Donoi'an, 188 Mass. 353, and cases there cited; L. D. Willcutt & Sons Co. v. Driscoll, 200 Mass. 110; National Protective Ass'n v. Cumming, 170 N. Y. 315; Jacobs V. Cohen, 183 N. Y. 207; Wilson v. Hey, 232 111. 389; Barnes v. Union, 232 111. 424. When eminent judges come to opposite conclusions upon a ques- tion, it can hardly be said that jurors might not reasonably do the same. The plaintiff was entitled to go to the jury upon all three grounds which have been considered: (1) Fraud, (2) malicious injury, and (3) un- reasonable interference with the open market. •^^>^1 '^'T;^ (2 ) The right to boycott. "ih-^' ^ ' PARKINSON CO. v. BUILDING TRADES COUNCIL. Supreme Court of California, 1908. 154 Cal. 581. Sloss, J., concurring.' — What is particularly to be borne in mind is that we are not here concerned with a strike or boycott pre- senting any of the features of violence, either expressly or impliedly threatened, to be found in so many of the decided cases. There was here no effort or threat to interfere by physical force with the plaintiff' or its employees, nor any intimidation of employees or cus- tomers, using the term "intimidation" as meaning an act tending to inspijre fear of violence to person or property. Nor need we here consider how far it is unlawful, whether by persuasion or other means, to induce one of the parties to a contract to break it to the damage of the other. As is pointed out iu the opinion of the chief justice any acts of this character that may have been committed by the defendants had occurred prior to the com- mencement of the action, and there was no evidence that any further ^ In that part of the opinion dealing with the second ground on which the plaintiff bases his right to recover, i. e., malicious injury, the learned justice says, p. 348, "The state of mind of an offending person may be pro\'ed in various ways. It may appear that there was no good reason for doing the act. In that case malice may be inferred from the proved absence of other motive for the act done. In case there be a sufficient justifiable motive, it may prove that in fact malice was the moving force. In either case the question is one of fact." ^ The facts are sufficiently stated in the dissenting opinion of Shaw, J. I PARKINSON CO. Z'. Dl'ILnixr. TRADES COUNCIL. 1229 interference in this direction was to be anticipated. There was, therefore, no basis for enjoining such acts. The real question in the case turns upon the activities of the de- fendants exerted in two ways: i. In ceasing to work for the plain- tiff (striking), and 2. In notifying (or threatening, if that term be preferred) the customers of plaintiff that workmen affiliated with the Building Trades Council would not work for contractors using materials purchased of plaintiff, That workmen employed by the Parkinson Company had a right to leave its employ whenever they desired, and for any reason that might seem to them sufficient, is universally conceded. Was it imlawful to notify contractors dealing with the Parkinson Company that union men would not continue to work for them if they pur- chased material of said Parkinson Company? In this inquiry, I think it is unimportant that the defendants were merely acting in accordance with a rule adopted before any difference with the plain- tiff had arisen. The opinion of the chief justice appears to proceed upon the theory that, since the defendants had bound themselves to act in a certain way in the event of a controversy of this kind, it was not only proper, but laudable, for them to notify contractors of their intended action and of the consequences which would fol- low to contractors who should continue to deal with the plaintiff'. More than this, that it was in some way incumbent upon plaintiff" to notify contractors dealing with him that a continuance of their patronage would be likely to result in loss to them. I cannot agree to the proposition that the rights of the parties are in any way af- fected by such considerations. If the defendants' course of conduct amounted to an unlawful interference with plaintiff's rights, it was not made lawful by the fact that the defendants had decided, in advance, to act in this way whenever an occasion should present itself. But was their action unlawful ? They had a right, as has been said, to cease working for Parkinson. They had an equal right to cease working for any other employer. Upon what ground, then, is it claimed that while their refusal to work for plaintiff gave plain- tiff no cairse of complaint, the refusal to work for others did give plaintiff a ground of action ? Because, it is said, they are bringing to bear upon the Parkinson Company, with which they have a contro- versy, the pressure of loss inflicted by third persons, not connected with the main dispute, and are, by holding over these third persons the risk of financial loss, compelling them, against their will, to in- flict upon Parkinson the damage resulting from a cessation of their patronage. This is the argument commonly advanced to establish the illegality of what has been called, in much of the recent discus- sion of the subject, a "secondary" rather than a "primary" boycott. I do not see that we are helped to a solution of the question of the illegality of the defendant's acts by looking into the "motive" or "intent" with which they acted. Even if we assume, contrary to the decisions of this court, that an improper motive may, as a gen- eral proposition, render actionable an act otherwise lawful, or, to 1230 PARKINSON CO. 7'. r.UILDrXG TRADES COUNCIL. use another form of statement, that damage intentionally inflicted will be actionable unless its infliction can be justified by showing that it was inspired by a proper motive, the motive with which these defendants acted was not, in my opinion, one which the law regards as improper. The defendants were seeking, in all they are shown to have done,~to secure employment by the plaintiff for themselves, to the exclusion of those not associated with them, and to secure the employment upon terms deemed satisfactory or advantageous to them. That is the effort of every dealer in goods ; it is the struggle of competition, and is no more to be frowned upon where the sub- ject of trade i^ labor than where it is a specific commodity. The uniting or combining of a number of persons to accomplish a lawful object by lawful means will not, per se, render the conduct of the many any more unlawful than would be the same conduct on the part of any one of them. "It is plain," as is said by Mr. Justice Holmes' in his dissenting opinion in Vegelahn v. Guntner, 167 Mass. 92, 108, (57 Am. St. Rep. 443, 44 N. E. 1077), "from the slightest consideration of practical affairs, or the most'sliperficial reading of industrial history, that free competition means combination, and that the organization of the world, now going on so fast, means an ever- increasing might and scope of combination. . . . One of the eternal conflicts out of which life is made up that is between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. ' Combination on the one side is patent and powerful. Combination on the other is the necessary and de- .^able counterpart, if the battle is to, be carried on in a fair and _ equal way." The injunction then, must rest upon the principle that it is un- lawful, in an effort to compel A to yield a legitimate benefit to B, for B to demand that C withdraw his patronage from A, under the penalty of losing B's services or patronage, to which he has no con- tract right. That there are many cases sustaining the affirmative of this proposition is true.^ ^Citing Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. 803 (1894) ; //o/j- kins v. Oxley Stave Co., 83 Fed. 912; Vegelahn v. Guntner, 167 Mass. 92, 108; Beck v. Railway Teamsters' Protective Union, 118 Mich. 497; Gray V. Building Trades Council, 91 Minn. 171; Barr v. 'Essex Trades Council, 53 N. J. Eq. 101 ; Lucke v. Clothing C. & T. A., 77 Md. 396 (1893) ; Jackson V. Stanfield, 137 Ind. 592; Crump v. Commonwealth, 84 Va. 927. See also, accord, Casey v. Cincinnati Typographical Union, 45 Fed. 135 (1891) ; Gom- pers V. Bucks Stove, etc., Co., 221 U. S. 418 (1911) ; see Loewe v. Lawlor, 208 U. S. 274 (1908), holding a combination to destroy an interstate busi- ii-ss by a boycott is a combination in restraint of trade within the Anti- Trust Act of July 2, 1890; American Federation of Labor v. Bucks Stove Co., ii D. C. App. 83 (1909) ; Wilson v. Hey, 232 111. 389 (1908) ; My Mary- land Lodge v. Adt, 100 Md. 238 (1905), union men notified not to drink beer brewed by brewers who purchased complainant's machinery; Rockv Moun- tain Bell Tel. Co. v. Montana Fed. of Labor, 156 Fed. 809 (1907); Pickett V. IValsh, 192 Mass. 572 (1906); Lohse Door Co. v. Ftielle, 215 Mo. 421 (1908), injunction granted to restrain a union from threatening to call out all union men employed by builders if they used the complainant's goods; Piano and Organ Workers' International Union v. Piano & Organ Supply PARKINSON CO. V. BUILDING TRADES COUNCIL. I23I So there are many to the contrary.^ Upon a consideration of the authorities I think the sounder is that one who is under no contract relation to another may freely and without question withdraw from business relations with that other. This includes the right to cease to deal, not only with one person; but with others ; not only with the individual who may be pursuing a course deemed detrimental to another who opposes it, but with all who by their patronage aid in the maintenance of the objectionable policies. In other words, if the defendants violated no right of the Parkinson Company by refusing to work for it, they violated none by refusing to work for contractors who used material bought of Parkinson. SudrTcfTm^al, as'ls'shown in the opinion of the chief justice, and as is stated in the testimony of plaintiff's manager and principal witness, was the "sum total of the interference'' which was practiced or threatened. An agreement by shipowners, in order to secure a carrying trade exclusively by themselves, that agents of members should be prohibited upon pain of dismissal from acting in the interest of competing shipowners {Mogul Steamship Co. v. McGregor, L. R. (1892) App. Cas. 25) ; a combination of retailers binding the members to refuse to purchase of wholesalers who should sell to non-members of the combination (Bohn Mfg. Co. v. Mollis, 54 Minn. 223, 40 Am. St. Rep. 319, 55 N. W. 1119) ; Ma- cauley Bros. v. Tierney, 19 R. I. 255, (61 Am. St. Rep. 770, 33 Atl. I) ; an agreement. of contractors to withdraw their patronage from Co., 124 111. App. 353 (1906) ; Irving v. Joint District Council, 180 Fed. 896 (C. G S. D. of N. Y. 1910) ; Shine v. Fox Bros. Mfg. Co., 156 Fed. 357 (1907); Moores v. Bricklayers' Union, 10 Ohio Dec. (Reprint) 665 (1889); Metallic Roofing Co. v. Jose, 12 Ont. L. R. 200 (1906); Schlang v. Ladies' Waist Makers' Union, 124 N. Y. S. 289 (1910) ; Beattie v. Callanan, 82 App. Div. 7 (N. Y. 1903) ; Alhro Newton Co. v. Erickson, 126 N. Y. S. 949 (1911) ; Purvis v. United Brotherhood Carpenters & Joiners, 214 Pa. St. 348 (1906) ; Longshore Printing Co. v. Lloivell, 26 Ore. 527, 38 Pac. 547, 28 L. R. A. 464, 46 Am. St. 640 (1894) ; Patch Mfg. Co. v. Protection Lodge, 77 Vt. 294 (1904), threats to withdraw patronage from boarding houses and shops serving strikebreakers; Loewe v. California Federation of Labor, 139 Fed. 71 (C. O N. D. of Cal. 1905) ; and see Booth v. Burgess, 72 N. J. Eq. 181 (1906); Jonas Glas^. Co. v. Glass Blozvcrs Assn., 77 N. J. Eq. 2J9 (1910), and Davis Mack. Co. v. Robinson, 84 N. Y. S. 837 (1903). 'Citing Mogul S. S. Co. v. McGregor, L. R. 1892, A. C. 25; National Protective Assn. v. Gumming, 170 N. Y. 315; Cote v. Murphy, 159 Pa. St. 420; McCauley Bros. v. Tierney, 19 R. I. 255; Bohn Mfg. Co. v. Hollis, 54 Minn. 223; Payne v. Western, etc., R. Co., 13 Lea 507 (Tenn.) Heywood V. Tillson, 75 Maine 225; Raycroft v. Tayntor, 68 Vt. 219; State v. Van Pelt, 136 N, Car. 633 (1904) ; Lindsay & Co. v. Montana Fed. of Labor, 2>7 Mont. 264 (1908), of which only the two last concern the legality of a boy- cott used by organized labor as a means of forcing their employer to con- cede to their demands. In State v. Van Pelt, a combination for such pur- pose was held not to be a criminal conspiracy, and in Lindsay v. Montana Fed., an injunction against boycotting by the complainant was dissolved. Sec also, Meier v. Speer, 96 Ark. 618 (1910), holding that it is not actionable for union workmen to refuse, in accordance with pre-existing rules of their union, to work for an employer employing non-union labor or on a job on which such labor is employed by any other employer, or to handle material produced by such labor, and see Gray v. Building Trades Council, supra; Note 2. 1232 PARKINSON CO. V. DUILDTXG TRADES COUNCIL. wholesalers selling to a contractor who had conceded the demands of his employees for an eight-hour day {Cote v. Murphy, 159 Pa. 420, 39 Am. St. Rep. 686, 28 Atl. 190) ; a threat by a railroad com- pany to discharge any employee who should deal with the plaintitT {Payne v. Western etc. R. R. Co., 13 Lea, 507, (49 Am. Rep. 666)) ; a threat by an employer that he w^ould discharge any laborer who rented plaintiff's house {Heyzvood v. Tillson, 75 Me. 225, (46 Am. Rep. 373)) have been held to give no right of action to the individ- uals affected. The defendants in each case were held to be acting within their absolute legal right in entering or refusing to enter into business relations with persons to whom they were not bound by contract. I see no reason why workmen have not the same absolute right to dispose of their labor as they see fit. So long as they ab- stain from breach of contract, violence, duress, menace, fraud, mis- representation, or other unlawful means, they may lawfully inflict such damage as results from the withholding of their labor or patronage. To quote again from Judge Holmes' opinion in Vege- lalin V. Guntner, 167 Mass. 92, (57 Am. St. Rep. 443, 44 N. E. 1077), 'Tf it be true that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest pos- sible return, it must be true that when combined they have the same liberty that combined capital has to support their interest by argu- ment, persuasion, and the bestowal or xefusal of those advantages which they otherwise lawfully control." The terms "intimidation" and "coercion," so frequently used in the discussion of this question, seem to me to have no application to such acts as were here committed. One cannot be said to be "in- timidated" or "coerced," in the sense of unlawful compulsion, by being induced to forego business relations with A, rather than lose the benefit of more profitable relations with B. It is equally beside the question to speak of "threats," where that which is threatened is only what the party has a legal right to do. It may be that the combination of great numbers of men, as of great amounts of capital, has placed in the hands of a few persons an immense power and one which, in the interest of the general wel- fare, ought to be limited and controlled. But if there be, in such combinations, evils which should be redressed, the remedy is to be sought, as to some extent it has been sought, by legislation. If the conditions require new laws, those laws should be made by the law- making power, not by the courts. Shaw, J., dissenting. — I dissent. I think the judgment should be modified, but that it should not be reversed. The plaintiff complains of both a strike and a boycott and asks an injunction against both. So far as the matter of the alleged strike of plaintiff's men is concerned, I think the defendants did nothing which they did not have a lawful right to do and that they used no unlawful means in doing what they did. The plaintiff was employing a number of men who belonged to the several unions rep- resented by the Building Trades Council, and it was understood by PARKIXSOX CO. V. BUILDING TRADES COUNCIL. 1 233 all the members of the unions that they would not work for an em- ployer who persisted in employing non-union men in the business. The plaintiff employed non-union men and thereupon the union men in its employ quit work. There was no violence used and no effort made to prevent plaintiff from securing other men to work, or to prevent other men from seeking its employment. The men had an absolute right to quit work at any time. None of the defendants used any improper means to induce the men to quit. They were simply informed that the plaintiff had refused to discharge the non- union men, and thereupon, in accordance with the rules of the union, which amounted to a previous agreement of all the members, be- tween themselves, they left the plaintiff's service. I think the judgment is sustained by the evidence in so far as it enjoins the continuance of the alleged boycott. The defendants are forbidden to coerce plaintiff's customers to withdraw their cus- tom from plaintiff by threats that unless they do so the defendants will cause loss to them in their business. The respective unions represented by the Federated Trades Council were twenty-two in number. It does not appear how many members they had in the aggregate, but it is plain from all circum- stances that the membership included the majority of the workmen in that vicinity engaged in the respective trades, and that they were of such numbers that if they all refused to work for any contractor engaged in building enterprises in that neighborhood, such con- tractor would be unable to carry on his business without substantial loss. The agreement of the union men that they would not work forlny contractor who employed non-union men, or who used ma- terial made by any manufacturer or sold by any dealer who em- ployed non-union men, w^as embodied in their rules adopted by them long before any difficulty had arisen with the plaintiff' and without any reference whatever to the plaintiff'. It was a general regulation and agreement, intended to apply to all persons and to be enforced whenever any occasion arose which made it applicable. The method of putting it in force was that the Building Trades Council, when it found any 'contractor, dealer, or manufacturer, employing non- union men, or using non-union materials, sent out notices to all union workmen and to other dealers and contractors that the person in question was "unfair," and thereupon it was understood that all men in the employ of such other persons would refuse to work for their respective employers unless such employer refused to use ma- terials received or purchased from such boycotted person.* When *To notify union members that an employer is unfair is held in many cases to amount to an order that they shall act toward him as the rules of the union require and so is tantamount to an order to boycott, and if pubHshed to the pubHc or to customers of the employers, amounts to a warning that to deal with him will subject them at least the risk of sec- ondary boycott; Lindsay & Co., Ltd. v. Montana Fed. of Labor, 37 AL^mt. 264 (1908), p. 271; Seattle Brewing & Malting Co. v. Hansen. 144 Fed. 1011 (1905); Irving v. Joint District Council, 180 Fed. 896 (1910); Newton Co. V. Erickson, 126 N. Y. S. 949 (1911) ; especially where the notice to the public calls attention to the union rule which requires union men to refuse 1234 PARKINSON CO. V. BUILDING TRADES COUNCIL. the Parkinson Company employed non-union men these notices were immediately sent to all its customers. As a result its customers im- mediately countermanded such orders to plaintiff for goods as were then unfilled and ceased thereafter to deal with plaintiff. The evi- dence showed that at least seven of the plaintiff's important custom- ers quit dealing with the plaintiff, that substantial damage had al- ready been caused to the plaintiff by this loss of custom, during the time it had continued, and that further continuance would cause plaintiff' further substantial loss, that these customers were, by the aforesaid threats of defendants, coerced and compelled, against their wish and will, to cease dealing with plaintiff or using goods obtained from plaintiff, and that the defendants intended and threatened to continue their'boycott indefinitely. The claim of the defendants appears to be that these notices were for the benefit of the several persons to whom they wxre sent, to warn them of the consequences that might attend their patroniz- ing the plaintiff, so that they could avoid doing so and thereby escape the evil results that would otherwise come to them, and that the sending of notices for such a purpose is not only lawful and in- nocent, but praiseworthy, as well ; that these consequences would not come as the result of any act done with reference to the parties warned, but as the result of conditions that existed under the union rules established long before any difficulty with plaintiff arose. These rules seem to be regarded as of similar force to the law of the land and a notice not to disregard them as a friendly act similar to a notice to a friend not to violate the law. I concede, of course, that where a strike has been determined upon, the mere sending of a notice of the fact is not unlawful, or blameworthy, and cannot be made the foundation of an action. Perhaps the sending of these notices, under some circumstances, might have been considered as an act of this character. But under the circumstances disclosed in this case, and in view of the findings of the court which show that the acts of the defendants were intended to coerce plaintiff's patrons to cease dealing with plaintiff in order to injure plaintiff in its prop- erty rights, the conduct of the defendants must be considered as malicious and unlawful. The defendants had the right, by lawful means, to persuade or induce others to cease dealing with plaintiff, although their purpose in so doing was to injure the plaintiff in its business and constrain to patronize or work for those who are unfair, Purvis v. Local Union 500, 214 Pa. St. 348 (1906) ; so the sending of notice to contractors and builders giving a list of "fair" factories, to be patronized as such and implying that all omitted were unfair, was restrained in Shine v. Fox Bros. Mfg. Co., 156 Fed. 357 (1907). See, however, Grav v. Building Trades Assn., 91 Minn. 171 (1903) ; Foster v. Retail Clerks' Assn., 78 N. Y. S. 860 (1902) ; Butterick Pub. Co. v. Typo. Union, 100 N. Y. S. 292 (1906) ; Sinsheimer v. United Gar- ment Workers, 28 N. Y. S. 321, 77 Hun 215 (1894) ; Richter Bros. v. Journey- men Tailors' Union, 11 Ohio Dec. (Reprint) 45 (1890), and Saulsberry v. Coopers' International Union, 147 Ky. 170 (1912), where the court refused to restrain union strikers from carrying away the union stamp, owned by them, though the absence of the union label, stamped on the goods made, in- dicated that they were "unfair." PARKINSON CO. V. BUILDING TRADES COUNCIL. I235 plaintiff to yield to their demands in regard to the conduct of plain- tiff's business. It is only when they seek to accomplish such injury by the use of means which the law deems unlawful that their action to that end becomes unlawful and the resulting injury an actionable wrong. The entire case depends on the question whether or not the means by which the defendants induced the plaintiff's customers to cease dealing with it were unlawful. It is settled in this state, and for the most part in other juris- dictions also, that, in cases where one person induces another to do an act, injurious to a third person, the mere fact that the person in- stigating the doing of the act was actuated by a bad motive, or by malice toward the third person, will not make his instigation unlaw- ful. (Boyson v. Thorn, 98 Cal. 578, (33 Pac. 492) .) The effect of the authorities, in cases like the present, is that, in order to make such instigation unlawful, the customer must be induced to cease dealing with the party intended to be injured, by means of some force, in- timidation, or coercion which destroys his freedom of action and constrains him to cease such dealing when he does not wish to do so and would not do so except for the constraint put upon him.^ It is not necessary, in order to constitute such undue influence, or coercion, that there should be any sort of physical violence done or °' In People v. Schmitc, 7 Cal. App. 330 (94 Pac. 419), it is said that the means used to induce the injurious action toward the third party, and which, if used, will make the resulting injury actionable, includes duress, menace, fraud, and undue influence, as defined in sections 1569, 1570, 1572, and 1575 of the Civil Code. According to these sections, fraud involves deceit, duress, (involves) confinement of the person or detention of property, and menace a threat of violence to person or property or of an attack on character. Neither of these things occurred here. The class to which the conduct of the defendant belongs, if it can be characterized as illegal, is that of undue influence. In the decisions on the subject this method of influencing the action of others is usually included with various forms of menace and is designated as intimidation, or coercion. In other jurisdictions there are no code provisions defining the general principles of law such as we have in the Civil Code. B/ the provisions of the code above mentioned a contract which is procured by either duress, menace, fraud, or undue influence is said to be voidable. The use of such means is characterized as illegal. It is not neces- sary, in order to constitute such undue influence, or coercion, that there should be any sort of physical violence done or threatened, or that there should be any act done or threatened, which, in itself, and apart from its effect in controlling the action of the person coerced, would be unlawful. It is sufficient if the acts threatened, although lawful, were of such a character that if done they would cause loss or injury to the person threatened of so serious a nature that the mere threat prevents him from exercising his own will in the matter and causes him, against his will, to act injuriously to the person intended to be injured." In Reynolds v. Daz'is, supra, the court, Knowlton, J., dissenting, affirmed a decree enjoining a strike by union workers to force their employer to return to an agreement, from which he had withdrawn, by which every grievance of any workman was to be investigated by a council of the union whose decision must be accepted by the employer under pain of being declared "unfair." The lawfulness of a strike (spoken of as "sympathetic"), not to further the common interests of the strikers but to aid a fellow workman who feels aggrieved by his employer, is discussed, the majority intimating that it is unlawful, Knowlton, J. that it is lawful. 1236 PARKINSON CO, V. BUILDING TRADES COUNCIL. threatened, which, in itself, and apart from its effect in controlling the action of the persons coerced, would be unlawful. It is sufficient if the acts threatened, although unlawful, were of such a character that if done they would cause loss or injury to the person threatened of so serious a nature that the mere threat prevents him from exer- cising his own will in the matter and causes him, against his will, to act injuriously to the person intended to be injured. These principles are established by a great number of decisions of the courts of this country and England. One of the latest of these is Quinn v. Leathern, in the House of Lords App. Cas., (1901) p. 495. Leathern, a butcher, was employing non-union men. Quinn and others, members of a union, threatened Leathern if he did not discharge these men they would stop his custom and call out his union men. He refused to discharge the objectionable men and thereupon, by threats to a customer named Munce, that they would also call out his men if he did not cease dealing with Leathern, they forced Munce to comply with their demand and cease buying of Leathem, to his injury. One Dickie, a workman, was' by similar means compelled to quit Leathem's service. The question was whether or not there was sufficient evidence to sustain a verdict for the plaintiff for damages. Lord Lindley's opinion is the fullest. The following is extracted from it : "What the defendants did was to threaten to call out the union work- men of the plaintiff and of his customers if he would not discharge some non-union men in his employ. In other words, in order to compel the plain- tiff to discharge some of his men, the defendants threatened to put the plaintiff and customers and persons lawfully working for them, to all the inconvenience they could without violence. . . . The defendants were doing a great deal more thaii exercising their own rights; they were dic- tating to the plaintiff and his customers and servants what they were to do." (p. 536). "One man without others behind him who would obey his orders, could not have done what these defendants did. One man, exercising the same control over others as these defendants had, could have acted as they did, and if he had done so, I conceive that he would have committed a wrong towards the plaintiff for which the plaintiff could have maintained an action. I am aware that in Allen v. Flood, App. Cas., (1898) pp. 128, 138, Lord Herschell expressed his opinion 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. But if Lord Herschell meant to say that as a matter of law there is no difference between giving information that men will strike and making them strike, or threatening to make them strike by calling them out, when they do not want to strike, I am unable to concur with him. It is all very well to talk about peaceable persuasion. It may be that in AUcn v. Flood there was nothing more; but here there was very much more. What may begin as peaceable persuasion may easily become, and in trades union disputes generally do become, peremptory ordering, with threats, open or covert, of very unpleasant consequences to those who are not persuaded. PARKIXSOX CO. Z>. liUILDIXG TRADES COUNCIL. I237 Calling workmen out involves very serious consequences to such of them as do not obey. Black lists are real instruments of coercion, as every one whose name is on one soon discovers to his cost. A combination not to work is one thing, and is lawful. A combination to prevent others from working by annoying them if they do, is a very different thing, and is prima facie unlawful. ... A threat to call men out given by a trades union official to an employer of men belonging to the union and willing to work with him, is a form of coercion, intimidation, molestation, or annoyance to them and to him very difficult to resist, and, to say the least, requiring justi- fication. . . . It is said that conduct which is not actionable on the part of one person can not be actionable if it is that of several acting in con- cert. That 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. . , . Coercion by threats, open or disguised, not only of bodily harm but of serious annoyance and damage, is prima facie, at all events, a wrong inflicted on the person coerced ; and in considering whether coercion has been applied or not, numbers can not be disregarded." In Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. 818, Taft, ]., said: "All the employees had the right to quit their employment, but they had no right to combine to quit their employment, in order thereby to compel their employers to withdraw from the mutually profitable relations with a third person, for the purpose of injuring that third person, when the relation thus sought to be broken had no efifect whatever upon the character or reward of their services." It is further argued that the only thing with which the cus- tomers were threatened was a strike of these customers' employees, that this threat was made by the men themselves, through their - agents authorized to act for them, and that they had a lawful right to strike at any time and for any cause or no cause, and hence that their conduct was not unlawful. The principle settled by the cases cited, however, is that while men have a right to strike, they have no right by that means to coerce their employers so as to compel them to act to the injury of a third person. The fact that they were to strike in such numbers gave them a power over the threatened customers of plaintifif, which constituted undue influence over them, or coercion or intimidation, as most of the authorities usually ex- pres.'-. it, and this coercion, exercised for the purpose of injuring a third person, is an unlawful act and makes the resulting injury an unlawful injury, which may be enjoined if only threatened, and which, if committed, may be redressed by an action for damages. It is the control of another's conduct against his will that is the unlawful element in the proposition. This being unlawful, the re- sulting injury to a third person is unlawful, although every other act in the transaction is lawful in itself. So far as this unlawful element is concerned it is immaterial whether that control is ob- tained by fear produced by the immediate prospect of serious pecu- niary loss, as the result of a threatened strike, or by fear produced by a threat of bodily injury. 1238 IROXMOLDERS' UXIOX V. ALLIS-CII ALMERS CO. 4* (J PIERCE V. STABLEMEN'S UNION. Supreme Court of California, 1909. 156 Cal. Rep. 70. Henshaw, J. The right of united labor to strike, in furtherance of trade interests (no contractual obligation standing in the way) is fully recognized. The reason for the strike may be based upon the refusal to \ .comply with the employees' demand for the betterment of wages, conditions, hours of labor, in the discharge of one employee, or the engagement of an- other — in brief, in any one or more of the multifarious considerations which in good faith may be believed to tend toward the advancement of the em- ployees. After striking, the employees may engage in a boycott, as that word is here employed. As here employed it means not only the right to the con- certed withdrawal of social and business intercourse, but the right by all legitimate means — of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to v/ithdraw their social intercourse and business patronage from the employer. They may go even further than this, and request of another that he withdraw his patronage from the employer, and may use the moral intimidation and co- ercion of threatening a like boycott against him if he refuses so to do. This last proposition necessarily involves the bringing into a labor dispute be- tween A and B, C, who has no difference with either. It contemplates that C, upon the request of B, and under the moral intimidation lest B boNXott him, may thus be constrained to withdraw his patronage from A, with whom he has no controversy. This is the "secondary_boycott_,'' t.he legality of which is vigorously denied by the English courts, the federal courts, and by the courts of manj^ of the states of this nation. Any act of boycotting which tends to impair this constitutional right freely to labor, by means passing beyond moral suasion, and playing by in- timidation upon the physical fears, is unlawful.* -i IRONMOLDERS' UNION v. ALLIS-CHALMERS CO. Circuit Court of Appeals, Seventh Circuit, 1908. 166 Fed. Rep. 45. Baker, Circuit Judge. So far as persuasion was used to in- duce apprentices or others (section 16 of the decree) to break their contracts to serve for definite times, the prohibition was right. And the reason, we believe, is quite plain. Each party to such a contract has a property interest in it. If either breaks it, he does a wrong, for which the other is entitled to a remedy. And whoever know- ingly makes himself a party to a wrongful and injurious act be- comes equally liable. But in the present case the generality of the men who took or sought the places left by the strikers were em- ployed or were offered employment at will, as the strikers had been. 'In Goldberg, Bowen & Co. v. Stablemen's Union, 149 Cal. 429 (1906). a decree was affirmed which restrained a boycott enforced by picketincr and intimidation of the employers' customers, Underhill v. Murphv, 117 Ky. 640 (1904); Jensen v. Cooks' and Waiters' Union, 39 Wash. 531 (1905). IROXMOLDERS' UXIOX Z'. ALLIS-CHALMERS CO. I239 If either party, with or without cause, ends an employment at will, the other has no legal ground of complaint. So if the course of the new men who quit or who declined employment was the result of the free play of their intellects and wills, then against them ap- pellee had no cause of action, and much less against men who merely furnished information and arguments to aid them in form- ing their judgments. Now it must not be forgotten that the suit was to protect appellee's property rights. Regarding employments at will, those rights reached their limitation at this line : For the maintenance of the incorporeal, yalne of a going business appellee had the right_to 2l_ free access to the labor market, and a further right to the contmuing services of those who accepted employment at will until such services were terminated by the free act of one or the other party to the employment. On the other side of this limiting line, appellants, we think, had the right, for the purpose of maintaining or increasing the incorporeal vakie of their capacity to labor, to an equally free access to the labor market. The right of the one to persuade (but not coerce) the unemployed to accept certain terms is limited and conditioned by the right of the other to dissuade (but not restrain) them from accepting. For another thing that must not be" forgotten is that a strike is one manifesta- tion of the competition, the struggle for survival or place, that is inevitable in individualistic society. Dividends and wages must both come from the joint product of capital and labor. And in the struggle wherein each is seeking to hold or enlarge his ground, we believe it is fundamental that one and the same set of rules should govern the action of both contestants. For instance, employers may lock out (or threaten to lock out) employees at will, with the idea that idleness will force them to accept lower wages or more onerous conditions ; and the employees at will may strike (or threaten to strike) with the idea of idleness of the capital involved will force employers to grant better terms. These rights (or legitimate means of contest) are mutual and are fairly balanced against each other. Again, an employer of molders, having locked out his men, in order to effectuate the purpose of his lockout, may persuade (but not coerce) other foundrymen not to employ molders for higher wages or on better terms than those for which he made his stand, and not to take in his late employees at all, so that they may be forced back to his foundry at his own terms ; and molders, having struck, in order to make their strike effective may persuade (but not coerce) other molders not to work for less wages or under worse conditions than those for which they struck, and not to work for their late employer at all, so that he may be forced to take them back into his foundry at their own terms. Here, also, the rights are mutual and fairly balanced. On the other hand, an employer, having locked out his men, will not be permitted, though it would reduce their fighting strength, to coerce their landlords and grocers into cutting off shelter and food ; and employees, having struck, will not be permitted, though it might subdue their late employer, to coerce dealers and users into starving his business. I240 IRONMOLDERS' UNION t'. ALLIS-CIIALMERS CO. The restraints, likewise, apply to both combatants and are fairly balanced. These illustrations, we believe, mark out the line that must be observed by both. In contests between capital and labor the only means of injuring each other that are lawful are those that operate directly and immediately upon the control and supply of work to be done and of labor to do it, and thus directly affect the apportionment of the common fund, for only at this point exists the competition, the evils of which organized society will endure rather than suppress the freedom and initiative_of_jhe_iiidiidduaL But attempts to injure each other by coercing members of society who are not directly concerned in the pending controversy to make raids in the rear cannot be tolerated by, organized society, for the direct, the primary, attack is upon society itself. And for the en- forcement of these mutual rights and restraints organized society offers to both parties, equally, all the instrumentalities of law and equity. We have not found anything in the evidence that justified the decree as to an "illegal boycott." No attempt was made to touch appellee's dealings or relations with customers and users of its goods. O.vley Stave Co. v. Coopers' International Union (C. C), /2 Fed. 695; Loezve v. Cal. State Federation of Labor (C. C), 139 Fed. 71 ; Loewe v. Lazdor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488. After tbe-Strike was on, appellee sent patterns, on which the strikers had been working, to foundries in other cities. The strikers procured the molders in those cities, who were also members of the Iron Holders' Union of North America, to refuse to make appellee's castings. Those molders notified their employers that the}^ would have to cancel their contracts to make castings for ap- pellee, or they would quit work. Some employers discharged the notifiers, others refused to cancel and the union men struck, and others complied and the union men stayed. In those instances where the foundrymen fulfilled their contracts, appellee was not damaged ; in those where foundrymen broke their contracts, there is no proof that appellee has not collected or cannot collect adequate damages. That might be taken as a reason why appellee on this branch of the case is not entitled to the aid of equity. But there is a more important reason. Appellants were aiming to prevent, and appellee to secure, the doing of certain work in which the skill of appellant's trade was necessary. Here was the groimd of contro- versy, and here the test of endurance. If appellee had the right (and we think the right was perfect) to seek the aid of fellow foundrymen to the end that the necessary element of labor should enter into appellee's product, appellant had the reciprocal right of seeking the aid of fellow molders to prevent that end. To what- ever extent employers may lawfully combine and co-operate to control the supply and conditions of work to be done, to the same extent should be recognized the right of workmen to combine and co-operate to control the supply and the conditions of the labor that is necessary to the doing of the work. In the fullest recog- nition of the equality and mutuality of their rights and their re- MOGUL STEAMSHIP CO. V. MC GREGOR. I24I striction lies the peace of capital and labor, for so they, like nations with equally well drilled and equipped armies and navies, will make and keep treaties of peace, in the fear of the cost and consequences of war.^ (b) Competition between trade rivals. (1 ) The right to induce exclusive dealings by promising or giving economic advantages. MOGUL STEAMSHIP CO. v. McGREGOR. Court of Appeal, 1899, and House of Lords. 1891. L. R., 23 Q. B. D. 598, and (1892) Appeal Cases, 25. Appeal from the judgment of Lord Coleridge, C. J., in an action tried without a jury, reported 21 O. B. D. 544. The plaintiffs were the owners of vessels used in the China and Australian trades. The several defendants were owners of vessels engaged in the China trade. The plaintiffs claimed damages for a conspiracy to prevent them from carrying on their trade between London and China, and an injunction against the continuance of the alleged wrongful acts. Lord Coleridge, C. J., gave judgment for the defendants. The plaintiffs appealed. ' ' BowEN_, L. J. We are presented in this case with an apparent yvconflict or antinomy between the two rights that are equally re- garded by the law — the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defend- ants to carry on their business as seems best to them, provided they commit no wrong to others. The plaintiffs complain that the de- fendants have crossed the line which the common law permits ; and inasmuch as, for the purpose of the present case, we are to assume some possible damage to the plaintiff's, the real question to be decided is whether, on such an assumption, the defendants in the conduct of their commercial affairs have done anything that is unjustifiable in law. The defendants are a number of shipowners who formed themselves into a league or conference for the pur- pose of ultimately keeping in their own hands the control of the tea carriage from certain Chinese ports, and for the purpose of driving the plaintiffs and other competitors from the field. In order to succeed in this object, and to discourage the plaintiffs' vessels from resorting to those ports, the defendants during the "tea harvest" of 1885 combined to offer to the local shippers very low freights, with a view of generally reducing or "smashing" rates, and thus 'See Searle Mfg Co. v. Terry, 106 N. Y. S. 438 (1905), and compare • r'lc'q V. Ladies Waist Makers' Union, 124 N. Y. S. 289 (1910). 1242 MOGUL STEAMSHIP CO. V. MC GREGOR. rendering it unprofitable for the plaintiffs to send their ships thither. They offered, moreover, a rebate of 5 per cent, to all local ship- pers and agents who would deal exclusively v/ith vessels belonging to the Conference, and any agent who broke the condition was to forfeit the entire rebate on all sjiipments made on behalf of any and every one of his principals during the whole year — a forfeiture of rebate or allowance which was denominated as "penal" by the plaintiff's' counsel. It must, however, be taken as established that the rebate was one which the defendants need never have allowed at all to their customers. It must also be taken that the defend- ants had no personal ill-will to the plaintiffs, nor any desire to harm them except as is involved in the wish and intention to dis- courage by such measures the plaintiff's from rival vessels to such ports. The acts of which the plaintiffs particularly complained were as follows: First, a circular of May 10, 1885, by which the de- fendants offered to the local shippers and their agents a benefit by way of rebate if they would not deal with the plaintiffs, which was to be lost if this condition was not fulfilled. Secondly, the send- ing of special ships to Hankow in order by competition to deprive the plaintiff's' vessels of profitable freight. Thirdly, the offer at Hankow of freight at a level which would not repay a shipowner for his adventure, in order to "smash" freights and- frighten the plaintiffs from the field. Fourthly, pressure put on the defend- ants' own agents to induce them to ship only by the defendants' vessels, and_not by tjiose of the plaintiffs'. It is to be observed with regard to alTtEese acts of which complaint is made that they were acts that in themselves could not be said to be illegal unless made so by the object with which, or the combination in the course of which, they were done ; and that in reality what is complained of is the pursuing of trade competition to a length which the plain- tiffs -.consider oppressive and prejudicial to themselves. We were invited by the plaintiff's' counsel to accept the position from which their argimient started — that an action will lie if a man maliciously and wrongfully conducts himself so as to injure another in that other's trade. Obscurity resides in the language used to state this proposition. The terms "maliciously," "wrongfully," and "injure," are words all of which have accurate meanings, well known to the law, but which also have a popular and less precise signification, into which it is necessary to see that the argument does not im- perceptibly slide. An intent to "injure" in strictness means more than an intent to harm. It connotes an intent to do wrongful harm. "Maliciously," in like manner, means and implies an inten- tion to do an act which is wrongful, to the detriment of another. The term "wrongful" imports in its turn the infringement of some right. The ambiguous proposition to which we were invited by the plaintiff's' counsel still, therefore, leaves unsolved the question of what, as between the plaintiffs and defendants, are the rights of trade. For the purpose of clearness, I desire, as far as possible, to avoid terms in their popular use so slippery, and to translate them into less fallacious language wherever possible. MOGUL STEAMSHIP CO. V. MC GREGOR. I243 The English law, which in its earlier stages began with but an imperfect line of demarcation between torts and breaches of contract, presents us with no scientific analysis of the degree to which the intent to harm, or, in the language of the civil law, the animus vicino nocendi, may enter into or affect the conception of a personal wrong. See Chasemore v. Richards, 7 H. L. C. 349, at p. 388. All personal wrong means the infringement of some per- sonal right. "It is essential to an action in tort," say the Privy Counsel in Rogers v. Rajendro Dutt, 13 Moore, P. C. 209, "that the act complained of should under the circumstances be legally wrong- ful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do a man harm in his interests, is not enough." What, then, were the rights of the plaintiffs as traders as against the defendants? The plaintiffs had a right to be protected against certain kind of conduct ; and we have to consider what kind of conduct would pass this legal line or boundary. Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if dorte without just cause or excuse. Such intentional action when done without just cause or excuse is what the law calls a malicious wrong. See Bromage v. Prosser, 4 B. & C. 247; Capital and Counties Bank v. Henty, per Lord Blackburn, 7 App. Cas. 741, at p. 772. The acts of the defendants which are complained of here were intentional, and were also calculated, no doubt, to do the plaintiffs damage in their trade. But in order to see whether they were wrongful we have still to discuss the ques- tion whether they were done without any just cause or excuse. Such just cause or excuse the defendants on their side assert to be found in their own positive right (subject to certain limitations) to carry on their own trade freely in the mode and manner that best suits them, and which they think best calculated to secure their own^adyantage. What, then, are the limitations which the law imposes on a trader in the conduct of his business as between himself and other traders? There seems to be no burdens or restrictions in law upon a trader which arise merely from the fact that he is a trader, and which are not equally laid on all other subjects of the Crown. His right to trade freely is a right which the law recognizes and en- courages, but it is one which places him at no special disadvantage as compared with others. No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and moles- tation are forbidden; so is the intentional pTocurement of a viola- tion of individual rights, contractual or other, assuming always that there is no just cause for it. The intentional driving away of customers by show of violence : Tarleton v. M'Gaivley, Peak, N. P. C. 270 ; the obstruction of actors on the stage by preconcerted hiss- ing: Clifford V. Brandon, 2 Camp. 358; Gregory v. Brunswick, G 2^Ian. & G. 205 ; the disturbance of wild fowl in decoys by the firing 1244 MOGUL STEAMSHIP CO. V. MCGREGOR. of guns: Carrington v. Taylor, ii East, 571, and Kechle v. Hickcr- ingill, 1 1 East, 574, n. ; the impeding or threatening servants or workmen : Garret v. Taylor, Cro. Jac. 567 ; the indticing of persons under personal contracts to break their contracts: Bozven v. Hall. 6 0. B. D. 333 ; Liimley v. Gye, 2 E. & B. 216: all are instances of such forbidden acts. But the defendants have been guilty of none of these acts. They have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the interest of their own trade. To the argument that a competition so pursued ceases to have a just cause or excuse when there is ill- will or a personal intention to harm, it is sufficient to reply (as I have already pointed out) that there was here no personal inten- tion to do any other or greater harm to the plaintiffs than such as was necessarily involved in the desire to attract to the defend- ants' ships the entire tea freights of the ports, a portion of which would otherwise have fallen to the plaintiffs' share. I can find no authority for the doctrine that such a commercial motive deprives of "just cause or excuse'' acts done in the course of trade which would but for such a motive be justifiable. So to hold would be to convert into an illegal motive the instinct of self-advancement and self-protection, which is the very incentive to all trade. To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract business to his own shop, would be a strange and impossible counsel of perfection. But we were told that com- petition ceases to be the lawful exercise of trade, and so to be a lawful excuse for what will harm another, if carried to a length which is not fair or reasonable. The offering of reduced rates by the defendants in the present case is said to have been "unfair." This seems to assume that, apart from fraud, intimidation, mo- lestation, or obstruction, of some other personal right in rem or in personam, there is some natural standard of "fairness" or "rea- sonableness" (to be determined by the internal consciousness of judges and juries) beyond which competition ought not in law to go. There seems to be no authority, and I think, with submission, that there is no sufficient reason for such a proposition. It would impose a novel fetter upon trade. The defendants, we are told by the plaintiffs' counsel, might lawfully lower rates provided they did not lower them beyond a "fair freight," whatever that may mean. But where is it established that there is any such restriction upon commerce? And what is to be the definition of a "fair freight?" It is said that it ought to be a normal rate of freight, such as is reasonably remunerative to the shipowner. But over what period of time is the average of this reasonable remunerative- ness to be calculated? All commercial men with capital are ac- quainted with the ordinary expedient of sowing one year a crop of apparently unfruitful prices, in order by driving competition away to reap a fuller harvest of profit in the future ; and until the present argument at the bar it may be doubted whether shipowners or merchants were ever deemed to be bound by law to conform to MOGUL STEAMSHIP CO. V. MC GREGOR. 1 245 some imaginary "normal" standard of freights or prices, or that law courts had a right to say to them in respect of their competitive tariffs, "Thus far shalt thou go and no further." To attempt to limit English competition in this way would probably be as hope- less an endeavor as the experiment of King Canute. But on ordi- nary principles of law no such fetter on freedom of trade can in my opinion be warranted. A man is bound not to use his property so as to infringe upon another's right. Sic utcre tuo lit alienum non laedas. If engaged in actions which may involve dangers to others, he ought, speaking generally, to take reasonable care to avoid endangering them. But there is surely no doctrine of law which compels him to use his property in a way that judges and juries may consider reasonable : See Chasemore v. Richards, 7 H. L. C. 349. If%there is no such fetter upon the use of property known to the English law, why should there be any such fetter upon trade? It is urged, however, on the part of the plaintiffs, that even if the acts complained of would not be wrongful had they been com- mitted by a single individual, they become actionable when they are the result of concerted action among several. In other words, the plaintiffs, it is contended, have been injured by an illegal conspiracy. Of the general proposition, that certain kinds of conduct not crim- inal in any one individual may become criminal if done by combina- tion among several, there can be no doubt. The distinction is based on sound reason, for a combination may make oppressive or dan- gerous that which if it proceeded only from a single person would be otherwise, and the very fact of the combination may show that the object is simply to do harm, and not to exercise one's own just rights. In the application of this undoubted principle it is neces- sary to be very careful not to press the doctrine of illegal conspiracy beyond that which is necessary for the protection of individuals or of the public ; and it may be observed in passing that as a rule it is the damage wrongfully done, and not the conspiracy, that is the gist of actions on the case for conspiracy: see Skinner v. Gun- ton, I Wms. Saund. 229; Hiitchins v. Hutchins, 7 Hill's New York Cases, 104 ; Bigelow's Leading Cases on Torts, 207. But what is the definition of an illegal combination? It is an agreement by one or more to do an unlawful act by unlawful means : O'Connell V. The Queen, 11 CI. & F. 155; Reg. v. Parnell, 14 Cox Criminal Cases, 508 : and the question to be solved is whether there has been any such agreement here? Have the defendants combined to do an unlawful act? Have they combined to do a lawful act by unlawful means? A moment's consideration will be sufficient to show that this new inquiry only drives us back to the circle of definitions and legal propositions which I have already traversed in the previous part of this judgment. The unlawful act agreed to, if any, between the defendants must have been the intentional doing of some act to the detriment of the plaintiffs' business without just cause or ex- cuse. Whether there was any such justification or excuse for the defendants is the old question over again, which, so far as regards an individual trader, has been already solved. The only differentia 1246 MOGUL STEAMSHIP CO. V. MC GREGOR. that can exist must arise, if at all, out of the fact that the acts done are the joint acts of several capitalists, and not of one capitalist only. The next point is whether the means adopted were unlawful. The means adopted were competition carried to a bitter end. Whether such means were unlawful is in like manner nothing but the old dis- cussion which I have gone through, and which is now revived under a second head of inquiry, except so far as a combination of capital- ists differentiates the case of acts jointly done by them from similar acts done by a single man of capital. But I find it impossible my- self to acquiesce in the view that the English law places any such restriction on the combination of capital as would be involved in the recognition of such a distinction. If so, one rich capitalist may innocently carry competition to a length which would become unlaw- ful in the case of a syndicate with a joint capital no larger ♦han his own, and one individual merchant may lawfully do that which a firm or partnership may not. What limits, on such a theory, would be imposed by law on the competitive action of a joint stock-com- pany limited, is a problem which might well puzzle a casuist. The truth is, that the combination of capital for purposes of trade and competition is a very different thing from such a combination of several persons against one, with a view to harm him, as fall under the head of an indictable conspiracy. There is no just cause or ex- cuse in the latter class of cases. There is no just cause or excuse in the former. There are cases in which the very fact of a combina- tion is evidence of a design to do that which is hurtful without just cause — is evidence — to use a technical expression — of malice. .But it is perfectly legitimate, as it seems to me, to combine capital for all the mere purposes of trade for which capital may, apart from the combination, be legitimately used in trade. To limit combina- tions of capital, when used for purposes of combination, in the manner proposed by the argument of the plaintiffs, would, in the present day, be impossible — would be only another method of at- tempting to set boundaries to the tides. Legal puzzles which might well distract a theorist may easily be conceived of imaginary conflicts between the selfishness of a group of individuals and the obvious well-being of other members of the community. Would it be an in- dictable conspiracy to agree to drink up all the water from a common spring in a time of drought ; to buy up by preconcerted action all the provisions in a market or district in times of scarcity: see Rex v. JVaddingfon, i East, 143 ; to combine to purchase all the shares of a company against a coming settling-day ; or agree to give away articles of trade gratis in order to withdraw custom from a trader? May two itinerant match vendors combine to sell matches below their value in order by competition to drive a third match vendor from the street? In cases like these, where the elements of intimidation, molestation, or the other kinds of illegality to which I have alluded are not present, the question must be decided by the application of the test I have indicated. Assume that what is done is intentional, and that it is calculated to do harm to others. Then comes the question. Was it done with or without "just cause or excuse"? If MOGUL STEAMSHIP CO. V. MC GREGOR. 1247 it was bona iide done in the use of a man's own property, in the ex- ercise of a man's own trade, such legal justification would, I think, exist not the less because what was done might seem to others to be selfish or unreasonable : see the summing up of Erie, J., and the judgment of the Queen's Bench in Reg. v. Rozvlands, 17 Q. B. 671. But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain, or the lawful enjoyment of one's own rights. The good sense of the tribunal which had to decide would have to analyze the circumstances and to discover on which side of the line each case fell. But if the real object were to enjoy what was one's own, or to acquire for one's self some advantage in one's property or trade, and what was done was done honestly, peaceably, and without any of the illegal acts above referred to, it could not, in my opinion, properly be said that it was done without just cause or excuse. One may with advantage borrow for the benefit of traders what was said by Erie, J., in Reg. v. Rowlands, 17 O. B. 671, at p. 687, n., of workmen and of masters : "The intention of the law is at present to allow either of them to follow the dictates of their own will, with respect to their pwn actions, and their own property ; and either, I believe, has a right to study to promote his own advan- tage, or to combine with others to promote their mutual advantage." Lastly, we are asked to hold the defendants' conference or association illegal, as being in restraint of trade. The term "illegal" here is a misleading one. Contracts, as they are called, in restraint of trade, are not, in my opinion, illegal in any sense, except that the law will not enforce them. It does not prohibit the making of such contracts ; it merely declines, after they have been made, to recognize their validity. The law considers the disadvantage so imposed upon the contract a sufficient shelter to the public. Lord Esher, M. R.^ "At common law," says Sir W. Erie (page 6), "every person has individually, and the public also have collectively, a right to require that the course of trade should be kept free from unreasonable obstruction." "Every person has a right under the law, as between him and his fellow-subjects, to fiAl freedom in disposing of his own labor or his own capital according to his own will. It follows that every person is subject to the cor- relative duty arising therefrom, and is prohibited from any obstruc- tion to the fullest exercise of this right which can be made compati- ble with the exercise of similar rights by others. Every act causing an obstruction to another in the exercise of the right comprised within this description — done, not in the exercise of the actor's own right, but for the purpose of obstruction — would, if damage should be caused thereby to the party obstructed, be a violation of this prohibition ; and the violation of this prohibition by a single person is a wrong, to be remedied either by action or indictment, as the case may be. It is equally a wrong whether it can be done by one or by ^ A part of the opinion of Lord Esher and the opinion of Fry, L. J. are omitted. 1248 MOGUL STEAMSHIP CO. V. MC GREGOR. many — subject to this observation, that a combination of many to do a wrong in a matter where the pubhc has an interest, is a sub- stantive offense of conspiracy" (p. 12). The Hmitation of the com- peting rights, then, is, that the act which has in fact obstructed the full right of the one, must, in order to be actionable, be an act done by the other beyond the exercise of the actor's own right, and for the purpose of obstruction. In Liimley v. Gye, 2 E. & B. 216, and in Bozven v. Hall, 6 O. B, D. 333, the act done which obstructed the plaintiff's right was the persuading a person employed by the plain- tiff, UBider contract, to break that contract. Such persuasion is not in ordinary course of trade. The ordinary competition of trade is a fair competition, not a secret persuasion of others_to_do _w,rong. The propositions applicable to the present case are the follow- ing: First, that the head of law, which we are considering, applies only to trade and to traders ; second, that the law has a peculiar care for the preservation of a free course of trade as between traders, because such freedom is for the benefit of the public ; third, that the principal formula of law for the purpose of enforcing this peculiar care is — that every trader has a legal right to a free course of trade, meaning thereby a legal right to be left free to exercise his trade according to his own will and judgment ; fourth, that if anyone, by an act wrongful as against that right, interferes with it to the in- jury of a trader, an action lies against such person by such trader; fifth, that any act of fair trade competition, though it injure a rival trader even to the destruction of his trade, is not a wrongful act as against such rival trader's right, but it is only the exercise of tha first-mentioned trader's equal right, and is therefore not actionable ; sixth, any act, though of the nature of competition in trade, but which is an act beyond the limits of fair trade competition, and which is therefore not an act of any real course of trade at all, and the im- mediate and necessary effect of which is such an interference with a rival trader's right to a free course of trade as prevents him from exercising his full right to a free course of trade, leads to an almost irresistible interference of an indirect motive, and is therefore — un- less, as may be possible, the motive is negatived — a wrongful act as against his right, and is actionable if injury ensue ; seventh, an act of competition, otherwise oinobjectionable, done not for the purpose of competition, but wrtTT'infirrrto injure a rival trader in his trade, is not an act done in an ordinary course of trade, and therefore is actionable if injury ensue; eighth, an agreement among two or more ' traders, wH6~are notTncT'do not intend to be partners, but where V each is to carry on his trade according to his own free will, except as regards the agreed act, that agreed act being one to be done for the purpose of interfering, i. e., with intent to interfere with the trade of another, is a thing done not in the due course of trade, and is therefore an act wrongful against that other trader, and is also wrongful against tlfe~right of the public to have free competition among traders, and is, therefore, a wrongful act against such trader, andjjf it is carried out and injury ensue, is actionable; ninth, such LONDON GUARANTEE CO. t'. HORN. 1249 an agreement, being a public wrong, is also of itself an illegal con- spiracy, and is indictable. It follows that in the present case the agreement of 1885 w'as within the rules (8) and (9) an indictable conspiracy, and that when it was carried out to its immediate and intended effect, w-hich was an injury to the plaintiffs' right to a free course of trade, the plaintiffs had a good cause of action against the defendants. It follows that the act of the defendants in lowering their freights far beyond a^ loweri ng for any purpose of trade — that is to say, so low that ii~they continued it they themselves could not carry on trajde- — was not an act done in the exercise of their own free right or"trade, but was an act done evidently for the purpose of interfer- ing with, i. e., with intent to interfere with, the plaintiffs' right to a free course of trade, and was therefore a wrongful act as against the plaintiffs' right ; and as injury ensued to the plaintiffs, they had also in respect of such a right of action against the defendants. The plaintiff, in respect of that act, would have had a right of action if it had been done by one defendant only; they have it still more clearly when that act was done by several defendants combined for that purpose. For these reasons I come to the conclusion that the plaintiffs were entitled to judgment. Appeal dismissed.^ (2 ) The right to use one's economic power over third persons to prevent them employing or dealing with the plaintiff. (Trade boycotts.) /j LONDON GUARANTEE CO. v. HORN. Supreme Court of IlUiuns, 1904. 206 ///. 493. Mr. Justice Scott. As we understand the record in this case, appellee was in the employ of Arnold, Schwinn & Co., a corpora- tion, under a contract terminable by either party at any time, but under which the employment would have continued for an indefinite "The plaintiff having appealed to the House of Lords, the judgment of the Court of Appeals was affirmed, L. R. 1892, A. C 25. See Park Sons & Co. v. National Druggists, 175 N. Y. 1 (1903), rebates granted to jobbers, who sold only to such retailers as maintained the selling price fixed by the makers, and Lough v. Out'erbridge et al., 143 N. Y. 271 (1894), p. 283, a steamship company granted a twenty-per-cent. reduction of freight to persons shipping exclusively by their vessels, the action was brought, not by a competing line, but by a shipper to whom this reduction was denied, he being the only person shipping goods by other vessels. See the dissenting opinion of Sanborn, J. in Passaic Print Co. v. Ely & Walker Dry Goods Co., 105 Fed. 163, 44 C. C. A. 426 (1900), cited in Note 1 to Tuttle V. Buck, post. In Dunshee v. Standard Oil Co., 152 Iowa 618 (1911), it was held that the cutting of prices below the point of profitable sale to ruin a competitor and so remove his competition, was actionable, but the defendant had adopted other competitive methods undoubtedly wrongful, such as tampering with the plaintiff's placards, etc. 1250 LONDON GUARANTEE CO. V. HORN. period had appellant not caused Arnold, Schwinn & Co. to discharge appellee for the purpose of compelling appellee to surrender and release a cause of action which he claimed, and for the satisfaction of which, if it existed, appellant was liable up to the amount of, $5,000, and as a result of which discharge appellee was without employment for several considerable periods, and sustained financial loss and injury consequent upon such discharge. Under these circumstances, does a cause of action exist in favor of appellee and against appellant? The result of this suit depends upon the answer to this question. "It is a violation of legal right to. interfere with contractual relations recognized by law, if there be no sufficient justification for the interference."^ We are of opinion that the contention of appellant in the case at bar, to the effect that competition in trade, employment or busi- ness is such a justification, is in accord with the authorities. In our judgment the cases cited by appellant, in so far as they lend support to its theory, will be found to be cases where the party who secured the discharge of the employee was in some way in com- petition with that employee in the business or work in which the em- ployee was then engaged, or was a member of some organization which was in competition with the employee or some organization to which that employee belonged, and the fact that such competition existed has been treated by some of the courts as justification for the act of the defendant in bringing about the discharge. In fact, appellant seems to take this view, for it devotes a considerable por- tion of its argument to an attempt to show that plaintiff and de- fendant were in competition with each other, in that appellant de- sired to secure or satisfy the alleged right of action of appellee for the least possible sum, while appellee desired to secure for that right of action the greatest possible sum.^ While it is true that the temporal interests of Horn and appellant were involved in the nego- tiations between them, we believe that the authorities which look upon competition as a justification for the act of one party in secur- ing the discharge of an employee have regarded the term in a more restricted sense, and given to the term "competition" its ordinary meaning and signification. This conclusion is certainly warranted by the reasoning in Doremus v. Hennessy, supra, where the court ^Lord MacNaghten in Quiim v. Leathern, L. R. 1901, A. C. 495, p. 510. ^"Counsel seem to have been impelled to this view of the matter by the dissenting opinion of Mr. Justice Holmes in Vegclahn v. Gunter, 167 Mass. 92, where, in discussing the proposition that one man may set up a business in competition with another with the intention and expectation of ruining another already engaged in that business in that locality, and if he succeed in his intent is not held to act unlawfully and without justifiable cause. Justice Holmes used this language: 'If the policy on which our law is founded is too narrowly expressed in the term free competition,' we rnay substitute 'free struggle for life.' Certainly the policy (that of permitting free competition) is not limited to struggles between persons of the same class competing for the same end. It applies to all contiicts of temporal interests." LONDON GUARANTEE CO. V. HORN. I25I discusses competition as a defense to an action of this character. It cannot be held that appellee and appellant were, in any ordinary sense of the term, in competition with each other. It is also to be observed that the injury which it was sought to visit upon Horn, was not primarily to subject him to a deprivation of his employ- ment, but was to compel him to surrender a right not connected with his employment. If the only object of appellant had been to secure appellee's discharge for the purpose of obtaining his position for another, or for the reason that the employment of appellee by Arnold, Schwinn & Co. in some way conflicted with the right of appellant, or some organization to which it belonged, to obtain the same or similar employment, a very different ques- tion, and one not now before this court, would be presented, and Allen V. Flood, 67 L. J. Q. B. 119, and other cases of that character cited by appellant, would then be worthy of greater consideration. It is further contended on the part of the appellant, that while the evidence may have shown that it was animated by malice, in the ordinary acceptation of the te'rm, toward Horn, the proof fails to show any legal malice. In this connection it is argued that ap- pellant had the right to have Horn discharged under the terms of the contract, or if it did not have that right, that it seriously and in good faith believed that it had, and that it is thereby relieved of any imputation of malice. There is no provision in the policy which by the wildest stretch of the imagination could be held to give any such right to appellant, and its conduct in attempting to secure a settlement of this claim shows it to have been animated by a wanton disregard of the rights of appellee. He was first told by the attorney of appellant that unless he settled for a trifling amount appellant would have hini discharged by Arnold, Schwinn & Co., — a threat to do that which this attorney must have known his client had no right to do. Afterward Robinett, the agent for the com- pany, made the same threat, and upon his attention being called to the fact that the policy gave him no power to require Horn's dis- charge, he said to Arnold, Schwinn & Co.: "If you don't discharge him I will have to cancel this policy to-day. I am here to bring this case to a focus to-day, and if you refuse to lay him off I will cancel it." When Mr. Robinett made this threat, which resulted in appel- lee's discharge, he was making a threat to do an unlawful thing, — to do a thing which appellant, by the terms of the contract, had no right to do. The contract provided only for its cancellation upon five days' notice. It is not pretended that any such notice had been given, but Robinett secured Horn's discharge by threatening to can- cel the contract "to-day." We think it perfectly apparent that the attorney for appellant, and its agent, Robinett, each sought to bring about, and finally did bring about, the discharge of appellee by threatening to do acts which each, respectively, knew he had no right to do. Arnold, Schwinn & Co. had the undoubted right to discharge Horn whenever it desired. It could discharge him for reasons the most whimsical or malicious, or for no reason at all, and no cause ( 1252 LOXDOX GUARANTEE CO. V. HORN. of action in his favor would be thereby created ; but it by no means follows that while the relations between Arnold, Schwinn & Co. and Horn were pleasant, and while, as the evidence shows, it was the expectation of the company that Horn would continue in its em- ploy "all the year around," that the interference of appellant, whereby it secured the employer to exercise a right which was given it by the law, but which, except for the action of appellant, it would not have exercised, is not actionable. In Chipley v. Atkinson, 23 Fla. 206, it is said: "From the au- thorities referred to in the last preceding paragraph, and upon prin- ciple, it is apparent that neither the fact that the term of service interrupted is not for a fixed period, nor the fact that there is not a right of action against the person who is induced or influenced to terminate the service or to refuse to perform his agreement, is of itself a bar to an action against the third person maliciously and Avantonly procuring the termination of or a refusal to perform the agreement. It is the legal right of the party to such agreement to terminate Jtoxreiuse toperform it, and in doing so he violates no right of the other party to it, but so long as the former is wilhng and ready to perform^ it is not the legal right, but is a wrong on the part of a third party to maliciously and wantonly procure the former to terminate or refuse to perform it." Where a third party induces an employer to discharge his em- ployee who is working under a contract terminable at will, but under which the employment would have continued indefinitely, in accord- ance with the desire of the employer, except for such interference, and where the only motive moving the third party is a desire to in- jure the employee and to benefit himself at the expense of the em- ployee by compelling the latter to surrender an alleged cause of ac- tion, for the satisfaction of which, in whole or in part, such third party is liable, and where such right of action does not depend upon and is not connected with the continuance of such employment, a cause of action arises in favor of the employee against the third party.^ 'In Joyce v. Great Northern R. Co., 100 Minn. 225 (1907), the plaintiff, a switchman, of the terminal company, while working in its yards, was in- jured by an engine of the defendant railway company, which had trackage rights therein. He demanded damages from the railway, which honestly beHeving that his claim was unfounded, requested that the terminal company should not re-engage him till he released his claim. He refused to do so and was refused re-employment. It w^as held that he was entitled to main- tain an action for damages, under a state statute making it unlawful for any two or more employers to combine or to confer together for the purpose of preventing any person from procuring employment, by threats, promises, blacklisting, or other means. Compare Raycroft v. Tayntor, 68 Vt. 219 (1896), where defendant, who was superintendent of a quarry and had quar- reled with the plaintiff in regard to the purchase of some standing timber for his employer, notified a third person, who had a license, terminable at will, to cut stone in the quarry, and who employed the plaintiff to assist him therein, that he, the defendant, w^ould terminate the license if the licensee continued to employ the plaintiff on the work. The plaintiff, who in conse- quence was discharged, was held to have no cause of action. And see Tennessee Coal and Iron Co. v. Kelly, 163 Ala. 348 (1909), where the plain- I GRAHAM V. ST. CHARLF-:S STREET R. CO. I253 GRAHAM V. ST. CHARLES STREET RAILROAD CO. Supreme Court of Louisiana, 1895. 47 La. Ann. 214. 47 La. Ann. 1656. NiCHOLLS, C. J. Defendants' counsel in his brief refers us to the case of Orr v. Home Mutual Insurance Company et al., 12 An. 255, as containing a clear exposition of the principle upon which this defence rests. He says: "Defendants had the legal right to dis- charge their servants arbitrarily and without cause. The exercise of a legal right gives no cause of action against them. If the plain- tiff be injured it is damnum absque injuria. No authority has been suggested in opposition to the principle that a man has an undoubted right to employ labor and fix the terms and conditions of that em- ployment in his discretion. In the instant case defendants had the absolute legal right, the exercise of which was proper in the conduct of their business, to prohibit their employees from going to grocery stores or barrooms or from dealing in any way or with any person in such manner as might be prejudicial to the interest of their busi- ness. They had the legal right to insist upon abstention in dealing as a condition precedent to their employment or retention in service. If the employees did not see fit to comply with these restrictions they were at liberty to leave the employment. They were not co- erced in any sense of the word. They were free agents. They could have continued dealing with plaintiff if they saw fit, but they could not so deal and remain in the employment of the defendant com- pany. Defendants were exercising a legal right." The issue before us is whether, while the plaintiff, engaged in a lawful business, is legitimately earning his livelihood by and through the custom and patronage of others, the defendants, a corporation, and its foreman, having the power of employing and discharging large numbers of persons, can, without incurring legal liability there- for, without justifiable cause, and moved solely by a malicious and wanton intent and design to injure the plaintiff', use their power of employment and discharge upon persons seeking employment from them, or already in their employ, so as to cause those who are al- ready dealing with the plaintiff to desist from further doing so, and tliose who would desire to do so from carrying out their wishes by threats of non-employment or discharge. In so doing the defendant tiff's employer operated a sawmill on the defendant company's property under a terminable arrangement with it, the latter strongly objected to union labor and constantly requested the plaintiff's employer to discharge certam workmen employed by them, including the plaintiff, alleged to be union men and to be interfering with the company's employees. They refused and, friction resulting, terminated the arrangement and abandoned their opera- tion, throwing the plaintiff, who was in fact not a union man, out of employ- ment. See also, Mackenzie v. Iron Trades Employers' Ins. Co.. 1910 Sess Cas. 79 (Scotland), where it was held that it was not actionable wrong for an insurance company to include the plaintiff's name in a published list of per- sons not to be employed by manufacturers insuring with it against risks under the Workmen's Compensation Act. the plaintiff being thereby de- prived of all chance of employment. 1254 GRAHAM 7'. ST. CHARLES STRKIiT R. CO. would control not only their own will, action and conduct, but forci- bly control and change from pure motives of malice the choice and will of others through fear of non-employment or discharge. This will and power of choice, both the plaintiff and the parties them- selves are entitled to have left free, and not have coerced, in order simply to work the former, damage and injury. In Longshore Printing and Publishing Company V. Hozvcll, 38 Pacific Reporter, 553, the court said "every man has a right to re- quire that he be protected in his property rights," and quotes ap- provingly and correctly a citation to the effect that "the labor and skill of the workman or the professional man — be it of high or low degree — the plant of a manufacturer, the equipment of a farmer, the investments of commerce, are all in equal sense property." In Dels V. Winfree et al., decided by the Supreme Court of Texas, 16 Southwestern Reporter, 112, the court said: "Every nian has a right to use the fruits and advantages of his own enterprise, skill and credit. He has no right to be protected against competi- tion, but he has the right to be protected from malicious and wanton interference, disturbance or annoyance. If the disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right, by contract or otherwise, is interfered with. "But if it comes from merely wanton or malicious acts of others, without the justification of competition or service of any in- terest or lawful purpose, it then stands upon a different footing." "In the case at bar defendant has committed the error of en- larging a right into a wrong, and applying to it the maxim 'Ncminem, laedit qui jure suo utitur.' " In dealing with the question before us, we could entirely dis- regard, as a mere incident or accident of the case, the particular in- strumentality by and through which the alleged damage and injury to plaintiff was inflicted. If it was accomplished under circum- stances such as to give rise to a legal liability, it would matter little whether it was through the power and influence which an employer can bring to bear upon the conduct and actions of his actual or pros- pective employees or through some other means. For the purposes of this opinion, we have taken up and fol- lowed the line of discussion and argument adopted and presented by both sides, and passed upon the general legal proposition advanced by plaintiff and disputed by defendant, without subjecting plaintiff's petition as to its exact language and arrangement to the strictest rules of pleading. From that standpoint it is open to some criticism, but we have viewed it as substantially raising the issues presented in the briefs. We do not undertake to lay down any general rule by which should be ascertained and tested the righc of one man to control and direct against his will the action and conduct of another to the injury and prejudice of third persons under the different relations and varying conditions of life. We do not mean for an instant to say that defendants may not, on the trial of this case upon the merits, GRAHAM v. ST. CHARLES STREET R. CO. I255 justify any conduct which they may have pursued in respect to the plaintiff. We simply say that the whole matter should be thrown open to inquiry and investigation. In the case of Dcla v. Winfree, cited above, counsel laid down a proposition which the court said might be conceded as correct, to the effect that "a person has an absolute right to have business rela- tions with any person whomsoever, whether the refusal is based upon reason or is the result of whim, caprice, prejudice or malice, and there is no law which forces a man to part with his title to his property," but it declared that "the privilege here asserted must be limited, however, to the individual action of the party who asserts the right. It is not equally true that a person may from such mo- tives influence another person to do the same. If without such mo- tive, the cause of one person's interference with the property or privilege of another is to serve some legitimate right or interest of his own, he may do acts himself, or cause other persons to do them, that injuriously aft'ect a third party so long as no definite legal right of such third party is violated. In the case of Walker v, Cronin, 107 Mass.' 562, it was recognized to be a general principle that "in all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damages. The intentional causing of such loss to another without justifiable cause, and with malicious purpose to inflict it, is of itself a wrong." We are of the opinion that the exception of no cause of action should have been overruled and the parties should have been made to go to trial on the merits. It is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and that the exception of no cause of action filed by the defendant in the District Court be and the same is hereby overruled, and this cause is ordered to be remanded to the lower court for further pro- ceedings according to law.^ "■Accord: Wesley v. Native Lumber Co., 97 :Miss. 814 (1910), and see Dapseus v. Lambert, Cour d'Appel de Liege, (Feb. 9, 1898), Sirey 1890, 4, 14, and see Lezvis v. Huie-Hodge Lumber Co., 121 La. 658 (1908), § 3 of "Syllabus by the Court"; and Professor James Barr Ames, 18 Harv. L. R.'417. Contra: Payne v. Western, etc., R. Co., 13 Lea 507 (Tcnn. 1884), very similar facts; Guethler v. Altman, 26 Ind. App. 587 (1901), a declaration, alleging that a school teacher had maliciously and without cause, by per- suasion and intimidation through threats of suspension, prevented the school children from patronizing the plaintiff's shop, was held to show no cause of action; and compare Heynjood v. Tillson, 75 Maine 225 (1883). See also. Union Labor Hospital v. Vance Co., 158 Cal. 551 (1910), and Banks V. Eastern Ry.. etc., Co., 46 Wash. 610 (1907), actions l3y hospitals against employers refusing to put them on the list of hospitals from which the workmen, if ill or injured, might select one at which he would be treated without further charge, a part of the workmen's wages being de- ducted from their pay, and the fund so collected paid to the hospitals caring for the workmen, the deduction of wages being obligatory but the workmen free to go to any hospital he liked, though if he went to one not on the list, be would not be entitled to free treatment. In International, etc., R. Co. v. Greenzvood, 2 Tex. Civ. App. 76 (1893), a curious distinction is drawn be- 1256 GRAHAM V. ST, CHARLES STREET R. CO. The case having been subsequently tried on its merits, a verdict and judgment for one hundred and seventy-five dollars was awarded and the defendants appealed. AIiLLER, J, (After holding that the acts of the defendant, New- man, were not within the line of his employment as foreman and that therefore the defendant company was not liable for the harm done by them.) With reference to the, foreman we think the case is different. The ground of his liability is that from motives of ill will, by words and conduct, he injured plaintiff's business, by pre- venting the employees from buying at his store. Our review of the testimony satisfies us that the foreman urged a number of the em- ployees not to deal with plaintiff', threatened them with discharge if they did so ; raised the rent of premises he leased to one of the employees who dealt with Graham, assigning that as the cause for the increase ; for the same reason, it is our conclusion from the tes- timony, he gave another tenant of his notice to quit, and as to two instances of discharge, the testimony strongly points for the cause to the fact that the discharged men bought of plaintiff. We have given attention to that of the foreman, that he never gave orders to the men not to deal with plaintiff, and that his motive was to prevent drinking by the men during the hours of service. We have con- sidered the testimony of the employees, produced by the defendant, that they dealt with plaintiff' and were not discharged; that there were posted in the station stringent rules against drinking by the employees, but a careful consideration of the testimony impresses us, as we must conclude it did the jury, that the defendant did use efforts to divert employees from dealing with the plaintiff, and that his motive was not to enforce the rules or discipline of the company. - The fact that the defendant's tenant had a grocery in the neigh- borhood, apt to be benefited by a diversion of plaintiff's customers, supplies the motive of interest, but does not, in our view, at all miti- gate his conduct. With all reasonable allowance for the competi- tions of trade and the means by which the shopkeeper or merchant obtains business, words and actions to discredit it and injure a rival in business can not be tolerated." The circumstance, that the de- rween threats to discharge an employee if he patronizes the plaintiff's sa- loon, which, if effective, are said to be actionable, and the giving of notice that the defendant would not employ any one who did so, which was held to be within his legal rights. ^ Had such been his motive, his efforts to prevent his employees from dealing with the plaintiff would have been justified, if the means used were not in themselves wrongful, Reding v. Kroll, Trib de Luxembourg (Oct. 2, 1896), Sirey 1898, 4, 16, defendant held justified in forbidding his employees, under pain of discharge, from frequenting the plaintiff's saloon, because of its demoralizing effect on them; Gott v. Berea College, 161 S. W. 204 (Ky. 1913), trustee of a college, largely supported by charity and designed to furnish education to persons of small means, forbade the students, under penaltv of expulsion, "entering eating houses or places of amusement not under' the control of the college"; Jones v. Cody, 132 Mich. 13 (1902). ^Contra: Robison v. Texas Pine Land Assn., 40 S. W . 843 (Tex. Civ. App. 1897), where it was held not actionable for the defendant, who main- MAC AULEY BROTIIKRS 1'. TIERXEY. I257 fendant as the foreman of the company had the power to discharge those designed to be influenced by his communications or statements with respect to the plaintiff, and that defendant had the selection of the labor of the company, tended to make more effective his efforts to injure plaintiff in his business. W'e recognize the principle urged by the defence, that the employer has the right to employ those he chooses, and the same liberty is allowed as to their discharge. The authority cited by defendant is entitled to full recognition, that one may do business with those he chooses to deal with, and decline, if he pleases, the business of others. Orr v. Insurance Co., 12 An. 255. It is not the exercise of defendant's choice in selecting or discharg- ing laborers for the company that makes him liable, but he is respon- sible, because, in exercising that right, he indulges in language, uses threats, and pursues a line of conduct all directed at the plaintiff, and of a character to injure him in his lawful business. It is therefore ordered, adjudged and decreed that the judgment of the lower court against the company be avoided and reversed, and that the judgment against Thomas Newman be affirmed, and that he pay costs. ^^ACAULEY BROTHERS v. TIERNEY. Supreme Court of Rhode Island, 1895. 19 R. I. 255. Matteson, C. J. The complainants proceed on the theory that they are entitled to protection in the legitimate exercise of their business ; that the sending of the notices to wholesale dealers not to sell supplies to plumbers not members of the association, under the penalty, expressed in some instances and implied in others, of the withdrawal of the patronage of the members of the associations in case of a failure to comply, was unlawful, because it was intended injuriously to affect the plumbers not members of the association in the conduct of their business, and must necessarily have that eff'ect. It is doubtless true, speaking generally, that no one has a right in- tentionally to do an act with the intent to injure another in his busi- ness. Injury, however, in its legaT sense, means damage resulting p — from a violation Ql.a-l egal righ t. It is this violation of a legal right which renders the act wrongful in the eye of the law and makes it tained a "company store," to threaten to discharge its employees if they pat- ronized the plaintiff's competing store and to warn them that their non- transferable pay checks would not be honored if they passed through the plaintiff's hands for goods bought of him; Lewis V. IIuic-Hodge Lumber Co., 121 La. 658 (1908), threats to discharge employees who patronized the plaintiff's store run in competition with the defendants' "company store," distinguishing the principal case on the grpund that the defendant New- man "had no legal right to exert the power of his official position over the employees of his employer for his own private advantage, to the prejudice of (the plaintiff) Graham" and because the men on whom he exerted the pressure "were not his own employees but those of the railroad company, whom he had only the right to discharge or refuse to employ for reasons connected with the business and interests of that company." 1258 MAC AULEY BROTHERS V. TIERNEY. actionable. If, therefore, there is a legal excuse for the act it is not wrongful, even though damage may result from its performance. The cause and excuse for the sending of the notices, it is evident, was a selfish desire on the part of the members of the association to rid themselves of the competition of those not members, with a view to increasing the profits of their own business. The question, then, resolves itself into this : Was the desire to free themselves from competition a sufficient excuse in legal contemplation for the send- ing of the notices? We think the question must receive an affirmative answer. Competition, it has been said, is the life of trade. Every act done by a trader for the purpose of diverting trade from a rival and at- tracting it to himself is an act intentionally done and, in so far as it is successful, to the injury of the rival in his business, since to that extent it lessens his gains and profits. To hold such an act wrong- ful and illegal would be to stifle competition. Trade should be free and unrestricted ; and hence every trader is left to conduct his busi- ness in his own way, and cannot be held accountable to a rivalvvho sufifers a loss of profits by anything he may do, so long as the meth- ods he employs are not of the class of which fr aud, mi srepresenta- tion, intimidation, coercion, obstruction or molestation of the rival or his servantsox'-WQrkmeii, and the procurement of violation of contractual relations, are instances. A leading and well considered case on this subject was the Mogul Steamship Co. v. McGregor. (The opinion then discusses that case and quotes from the opinion of Bowen L. J. therein.) The case at bar contains no element of the character of those enumerated by the Lord Justice which are forbid- den by law, unless the threat of the withdrawal of patronage may be considered as amounting to coercion. We do not think, how- ever, that such a threat can be regarded as coercive within a legal sense ; for, though coercion may be exerted by the application of moral as well as physical force the moral force exerted by the threat was a lawful exercise by the members of the associations of their own rights, and not the exercise of a force violative of the rights of others as in the cases cited by the Lord Justice. It was perfectly competent for the members of the association, in the legitimate exer- cise of their own business to bestow their patronage on whomsoever they chose, and to annex any condition to the bestowal which they saw fit. The wholesale dealers were free to comply with the condi- tion or not, as they saw fit. If they valued the patronage of the members of the associations more than that of the non-members, they would doubtless comply ; otherwise they would not. Closely analogous to the case at bar was the recent case of Bohn Mfg. Co. v. Mollis, 54 Minn. 223. The plaintiff was a manu- facturer and seller of lumber, having a large and profitable trade, both wholesale and retail, m Minnesota and the adjoining States. The defendants, comprising from twenty-five to fifty per cent, of the retail lumber dealers in the States referred to, many of whom were or had been customers of the plaintiff, formed an association under the name of the North Western Lumbermen's Association, MAC AULEV BROTHERS I'. TIERNEY. I259 for the protection of its members against sales by wholesale dealers and manufacturers to contractors and consumers, by which they mutually agreed that they would not deal with any manufacturer or wholesale dealer who should sell lumber directly to consumers not dealers at any point where a member of the association was car- rying on a retail yard. The by-laws provided that any members of the association doing business in the town to which lumber thus sold by a manufacturer or wholesale dealer had been shipped should notify the secretary of the association, within thirty days after the arrival of the shipment at its destination, who should thereupon notify the manufacturer or wholesale dealer by whom the shipment had been made that he had a claim against him for ten per cent, of the value of such sale at the point of shipment ; that if the secretary should be unable to obtain payment he should refer the matter to the directors, who should hear and determine the claim ; that if the manufacturer or dealer refused to abide by the decision of the di- rectors, it should be the duty of the secretary to immediately notify the members of the association of the name of the manufacturer or dealer and that he refused to comply with .the rules of the associa- tion ; that if any member continued to deal with such manufacturer or wholesale dealer he should be expelled from the association ; that whenever the secretary of the association should succeed in collect- ing any such claim, the sum collected should be paid to the member or members, in equal shares, doing business at the place of the sale. The plaintiff sold two bills of lumber directed to consumers or con- tractors at points where members of the association were engaged in business. The secretary of the association, having been informed of the fact, notified the plaintiff", in pursuance of the provision of the by-laws, that he had a claim against him for ten per cent, of the amount of the sales. Considerable correspondence with reference io the matter ensued, in which the plaintiff" from time to time prom- ised to adjust the claim, but procrastinated and avoided doing so until finally the secretary threatened unless the claim was immedi- ately settled to send the notice provided by the by-laws to all the members of the association. Thereupon the plaintiff brought its suit for an injunction. An ex parte injunction having been granted, the defendants obtained an order for the complainants to show cause why it should not be dissolved. The court refused to dissolve the injunction, but on appeal the order continuing the injunction was reversed. The court says, "Now, when reduced to its ultimate analysis, all that the retail lumber dealers in this case have done is to form an association to protect themselves from sales by whole- sale dealers or manufacturers, directly to consumers or other non- dealers at points where a member of the association is engaged in the retail business. The means adopted to affect this object are simply these : They agree among themselves that they will not deal with any wholesale dealer or manufacturer who sells directly to customers, not dealers, at a point where a member of the association is doing business, and provide for notice being given to all their members whenever a wholesale dealer or manufacturer makes any I26o MAC AULEY BROTHERS t'. TIERNEY. such sale. That is the head and front of defendant's offence. It will be observed that defendants were not proposing to send notice to any one but members of the association. There was no element of fraud, coercion, or intimidation, either towards the plaintiff or the members of the association. True, the secretary, in accordance with section 3 of the by-laws, made a demand on plaintiff' for ten per cent, on the amount of the two sales. But this involved no ele- ment of coercion or intimidation, in the legal sense of those terms. It was entirely optional with plaintiff whether it would pay or not. If it valued the trade of the members of the association higher than that of non-dealers at the same points, it would probably conclude to pay ; otherwise not. It cannot be claimed that. tlie act of making this demand was actionable ; much less that it constituted any ground for an injunction ; and hence this matter may be laid entirely out of view. Nor was any coercion proposed to be brought to bear on the members of the association to prevent them from trading with the plaintiff. After they received the notice, they would be at entire liberty to trade with plaintiff or not, as they saw fit. By the pro- visions of the by-laws, if they traded with the plaintiff they were liable to be 'expelled ;' but this simply meant to cease to be mem- bers. It was wholly a matter of their own free choice which they preferred, — to trade with the plaintiff" or to continue members of the association." See also Paine v. Western & Atlantic R. R. Co., 81 Tenn. 507, 514-519; Cote v. Murphy, 159 Pa. St. 420, 421 ; Hey- u'ood V. Tillson, 75 Me. 225, 233. It only remains to notice the charge of conspiracy contained in the bill, upon which considerable stress has been laid as thougli the fact that the action of the members of the associations was in pursuance of a combination entitled the complainants to relief. To maintain a bill on the ground of conspiracy, it is necessary that it should appear that the object relied on as the basis of the con- spiracy, or the means used in accomplishing it, were unlawful. What a person may lawfully do a number of persons may unite with him in doing without rendering themselves liable to the charge of conspiracy, provided the means employed be not unlawful. The object of the members of the association was to free themselves from the competition of those not members, which, as we have seen, is not unlawful. The means taken to accomplish that object were the agreement among themselves not to deal with wholesale dealers who sold to those not members of the associations, and the sending of notices to that end to the wholesalers. This, as we have also seen, was not unlawful. Hence, it follows that, as the object of the combination between the members of the association was not unlaw- ful, nor the means adopted for its accomplishment unlawful, there is no ground for the charge of conspiracy, and the fact of combina- tion is wholly immaterial.^ ^Accord: Scottish Co-operative Wholesale Society v. Glasgozv Fleshers' Assn., 35 Scottish L. Reporter 645 (1898), an association of wholesale butchers notified auctioneers that they would bid at no sale, at which bids from co-operative stores were received, in consequence the auctioneers re- '/ JACKSOX V. STAXFIELD. I261 JACKSON V. STANFIELD et al. Supreme Court of Indiana. 1893. 137 Ind. 592. The special findings of fact showed in substance that the plain- tififs, NewtonXacksjon-and-his wife Alartha, were engaged in the business ofTuymg and selling lumber sometimes on their own ac- count, sometimes" on commission, that they had no lumber yard or stock on hand in the place where they did business. That the de- fendants and other lumber dealers, about one hundred and fifty in number, formed an association having by-laws which provided, inter alia ( I ) that any lumber dealer owning or operating a lumber yard, fused to receive bids from such stores. Recovery of damages was denied since the Fleshers "did not act wholly from malice' but at least in part from a regard to their own interest;" Transportation Co. V. Standard Oil Co 50 W. Va. 611 (1902), defendants, to mcrease the trade of a pipe Ime owned by them, refused to buy or refine oil shipped by the plaintiffs' competmg line or to permit, by means not stated, others to do so, or to lease oil lands to persons who so shipped; Continental Ins. Co. v. Board of Fire Undcr- -Mritcrs of the PaciHc, 67 Fed. 310 (1895), threats to dismiss agent unless he represented exclusively the companies who were members of the board — threats to "boycott," by means not stated, customers of the plaintiff, were, however, held to be illegal; Roseneau v. Empire Circuit Co., 131 N. Y. App. Div. 429 (1909), defendant, a corporation owning the principal burlesque theaters in the most important towns, refused to book shows which did not agree to appear only at its theaters, thus preventing the plaintiff, an independent theater, from booking shows and causing burlesque companies already under contract with it to break such contracts, see also, Russell v. New York Produce Exchange, 58 N. Y. S. 842 (1899), and Park & Sons Co. V. National Wholesale Druggists' Assn., 175 N. Y. 1 (1903), where manufacturers, wholesalers and jobbers combined to prevent price cutting bv agreeing that rebates would be given to jobbers who, as members of their association, agreed to sell and sold only to dealers who maintained prices, all other jobbers or dealers being allowed to buy but receiving no rebate. In Lewis v. Huie-Hodge Co., 121 La. 658 (1908), it was held that the de- fendant was not guilty of actionable wrong toward the plaintiff, whose store competed with its "company store," in threatening persons selling to the plaintiff that they would not buy from them unless they ceased to do so. The right to refuse, alone or in concert with others, to deal with any one, for anv or no reason, is strongly asserted in Reynolds v. Plumbers' Assn., 30 M'isc. (N. Y.) 709 (1900), where the defendant sent to its mem- bers a notice not to sell or credit to the plaintiff, in pursuance of a by-law which forbade, under penalty of expulsion, members to give credit to a customer of any member who had refused to settle a claim of such mem- ber, or in case of dispute, to give the association the reasons for his refusal or submitted the controversy to arbitration, and Brewster v. Miller, 101 Ky. 368 (1897), where the by-laws of an association of all the undertakers in Louisville, forbidding its members, under penalty of expulsion, from serving any one against whom any member had an unpaid claim, the plain- tiff was unable to procure the services of an undertaker for the burial of his wife, it was held that no action lay, though had the plaintiff paid tlic claim, it not being due and owing, in order to procure such services he could have recovered it back in an action of indebitatus assumpsit as money "tortiously" obtained, compare Schultcn v. Bavarian Brewing Co.. 96 Ky. 224 (1894), where, as in Ulery v. Chicago Live Stock Exchange, 54 111. App. 233 (1894), there was no allegation of any by-law, threatening with expulsion or other penalty a member of the combination or association breaking the agreement or disobeying the direction not to deal with the rk'.intiff because he had not paid a member's claim, and where it is inti- 1262 JACKSOX Z'. STAXFIELD. in which a stock of kimber commensurate with the local demand is kept for sale, is eligible for membership but forfeits his membership when he ceases to keep such stock. (2) That any manufacturer or wholesale dealer may become an honorary member, forfeiting such membership if he violates the rules of the association. In sec- tion 3, that whenever any manufacturer or wholesale dealer shall sell lumber to any person not a merriber of the association, any member doing business in the place to which the shipment is made may no- tify such manufacturer, etc., that he has a claim against him for such shipment. "If the parties cannot adjust it, it is made the duty of the member to notify the secretary of the facts in the case, who shall refer the matter to the executive committee, whose duty it is to hear the grievances and determine the claim. If the wholesaler or manufacturer ignores the decision of the committee, it is the duty of the secretary to notify the members of the association of the name of the person so offending and of the members to no longer patronize him. If they continue to deal with the offender they shall be expelled from the association, and if any member refuses to abide by the decision of the executive committee his name is to be stricken from the membership of the society. They also showed that the West Michigan Lumber Co. having sold to the plaintiff's was fined $100, which after considerable correspondence it paid, and thereafter refused to sell to the plaintiffs. Dailey, J. This is an action brought by the appellants against the appellees for damages and for relief by injunction, on the ground that the defendants had entered into an unlawful combination for the purpose of injuring the appellees in their business, and that, in consequence thereof, plaintiffs had suffered actual damage, and were threatened with great loss in their business. By request of the parties, the court below made a special find- ing of the facts, and stated its conclusion of the law thereon, and the plaintiffs were not entitled to recover. There was no motion for a new trial, and the only questions presented by the record are these : mated that such a combination to force the plaintiff to pay a claim not justly due would be wrongful. Compare with the principal case, Orr v. Home Mutual Ins. Co., 12 La. Ann. 255 (1857), demurrer sustained to a declaration alleging that certain insurance companies had conspired to refuse, maliciously and without any cause other than the freight rates charged by the plaintiff, to insure any- thing in any steamboat employing him, whereby he was discharged from his berth as captain of a certain boat and was unable to obtain other em- ployment; and with Bohn Mfg. Co. v. Hollis, compare Hunt v. Simonds, 19 Mo. 583 (1854), demurrer sustained to a declaration alleging a similar conspiracy for the purpose of ruining the plaintiff in his business of steam- boat owner, by refusing to insure his boat, and Baker v. Metropolitan Life Ins. Co., 64 S. W. 913 (Ky. 1901), and Trimble v. Prudential Life Ins. Co., 64 S. W. 915 (1901), in each of which the plaintiff, an employee at will, was discharged by an insurance company in pursuance of an agreement between such companies that no one of them would employ any person within two years of the time when he had left the service of any other. The agree- ment, it was said, being against public policy and not obligatory, the act of the plaintiff's employer in discharging him was voluntary. JACKSON V. STAXFIELD, I263 First. Whether the plaintiffs are entitled to an injunction? Second. If not entitled to an injunction, are they entitled to recover damages? The facts found by the court disclose that the appellees, as members of the combination complained of, availed themselves of the means provided for in section three to destroy the business of the appellants as brokers in lumber, because they were not retail dealers within the definition of the term, and that they effectuated their purpose. The special findings of fact clearly show it to be a compact to suppress the competition of those dealers who did not own yards, with an adequate stock on hand, by driving them out of business. By this plan they reach the wholesale dealer, and compel him to pay an arbitrary penalty under a threat of financial injury, and they force him to assist in ruining the dealer who does not own a yard. There is such an element of coercion and intimidation in the by-law under consideration, towards the wholesale dealers, manu- facturers, and even the members of the society, and such provision made for penalties and forfeitures against them, that it will not do to say it was optional with the wholesale dealer whether it would pay the demand or not, or that it was left to the discretion or choice of the members to either trade with the wholesaler or abandon the association. A conspiracy formed and intended directly or indi-"^ rectly to prevent the carrying on of any lawful business, or to injure the business of any one by wrongfully preventing those who would be customers from buying anything from the representatives of such business, by threats or intimidation, is in restraint of trade and unlawful.- . I The great weight of authority supports the doctrine that where the policy pursued against a trade or business is of a ipenacing char- acter calculated to destroy or injure the business of the person so engaged, either by threats or intimidation, it becomes unlawful, and the person inflicting the wrong is amenable to the injured party in a civil action for damages therefor. It is not a mere passive, let- alone policy ; a withdrawal of all business relations, intercourse, and fellowship that creates the liability, but the threats and intimidation shown in the complaint. The learned counsel for the appellees, in their very able brief, contend that the plaintiffs were only incidentally injured by the acts of the defendants in enforcing a penalty of $100 against the West Michigan Lumber Company. It will be observed that the Retail Lumber Dealers' Association invites wholesalers to become honorary members, and that said lumber company is an honorary member. But the rules of the asso- ciation do not affect alone members, active and honorary. They extend to and reach any wholesale dealer in the L"^nited States with whom the threat to withdraw the trade of 150 retail dealers can have weight. It is shown in the finding that Michigan is the source from which most of the lumber in Northern Indiana is procured, and that l)<9. 1264 JACKSOX r. STAXFIELD. the rules of the association are published in pamphlet form and sent to every wholesale dealer in the United States. The retail dealers who organized the association in question, are members of the vari- ous cities and towns where they are located. They have lumber yards containing stock in quantity and quality suited to and com- mensurate with the wants of the consumers in their several locali- ties. These gentlemen are prominent, wealthy, and influential citi- zens of our State, whose power, from the elevated stations they occupy, so exercised, enables them to control the wholesale dealers of the United States against the agents and brokers within their own territory, and effectually drive them out of business. It is idle to say that the victim of such a combination is only "incidentally" affected thereby. The object of the association, and the result at- tained, is monopoly of the trade by owners of yards, and the broker is simply ignored by the wholesale dealers. It is not in point to cite cases where men voluntarily agree to observe rules adopted by themselves. This is no voluntary affair of the wholesale dealers. It is not even a combination of whole- salers. They may, and do, sometimes become honorary members, so as to keep within touch of the retail dealers and secure trade. It is, as stated, an association of retailers to restrict the liberty of wholesalers to sell to customers and brokers, and the wholesalers must obey or lose their trade. It is found, as a fact, that the market in which the plaintiffs could most profitably buy was in Michigan. Freight and railroad facilities necessarily limit the field. It is also found that the West Michigan Lumber Company is the dealer that made the plaintiffs' trade most profitable, and that. for fear of the penalties, this company and another refused to deal with them. The West Michigan Lumber Company was willing and anxious to sell to the plaintiffs until fined by the defendants and mulcted in the sum of one hundred dollars, when it refused to make further sales for the reason that it was afraid of the penalties. Such rules contravene the rights of non-members to earn their living by fair competition. The case of Bohn Mfg. Co. v. Hollis, 54 Minn. 223, is cited by appellees as sustaining the decision of the lower court. The opinion proceeds upon the theory that there was no element of coercion or intimidation in the acts complained of, but we think the decision in this respect is in conflict with approved authority, and is bad as a precedent. The judgment is reversed, with instruction to restate conclu- sions of law, and render judgment upon the special findings in favor of the appellants for five hundred and eighty-three dollars, and with the further instruction to render a judgment perpetually enjoining the defendants from in any way, other than by fair, open compe- tition, interfering with the plaintiffs in their business, and from demanding a penalty or making a claim against any one, under the ■Si I COTE 1'. ML'RPIIV. 1265 by-laws of said association, who may sell to the plaintiffs, or through them to a consumer.^ COTE V. MURPHY. Supreme Court of Pennsylvania, 1894. 159 Pa. St. 420. Mr. Justice Dean. The defendants were members of the Planing Mill Association of Alleghenj^ county, and Builders' Exchange of Pittsburgh. The different partnerships and individuals composing these associations were in the business of contracting and building and furnishing building material of all kinds. On the 1st of May, 1891, there was a strike of the carpenters, masons and bricklayers in the building trades, bringing about, to a large extent, a stoppage of building. The men demanded an eight-hour day, with no reduction in wages theretofore paid, which the employers refused to grant; then a strike by the unions of the different trades was declared. The plaintiff, at the time, was doing business in the city of Pittsburgh as a dealer in building ma- terials. He was not a member of either the "Planing Mill Association," or of the "Builders' Exchange;"' there were also contractors and builders, who belonged to neither of these organizations, who conceded the demands of the workmen; they sought to secure building material from dealers wher- ^ In Doremus v. Hennessy, 176 111. 608 (1898), accord, scmble, the language used by the court was broader than was required for the decision of the case, the effect of the defendant's conduct being to cause persons bound to the plaintiff by contracts to refuse to perform them. Combinations to refuse to deal with or to prevent or induce others to deal with persons not members thereof, with the object of controlling the price of the commodity dealt in. have been held actionable at law in JFalsh V. Association of Master Plumbers, 97 Mo. App. 280 (1902), and Erfc V. Produce Exchange, 82 Minn. 173 (1901), under statutes making con- tracts, etc., in restraint of competition, etc., unlawful; and in Hazvarden V. Youghiogheny & Lehigh Coal Co., Ill Wis. 545 (1901), an independent coal dealer recovered damages against wholesale dealers, who, having a practical monopoly of coal at Superior, combined with retailers to main- tain a fixed retail price by refusing to sell to retailers who, like the plaintiff, cut the price, under a statute making persons combining to injure others liable civilly and criminally; see State v. Huegin, 110 Wis. 189 (1901), holding the act constitutional, construing it to include combinations to stifle competition and holding that the fact that the object was to advance the interests of those combining constituted no justification. In Wyeman v. Dcady, 79 Conn. 414 (1906), it was held that an action lay by a non-union workman against a labor union and its walking dele- gate, who by threat of strike had procured his discharge because he was not a member of the union, under a statute making it a criminal offense to threaten or use any means to intimidate any person to compel him to do or abstain from doing anything which such person has the right to do. which had been construed in State v. Gliddcii. 55 Conn. 46 (1887), to make it criminal a strike to procure a fellow workman's discharge. Contra: Brewster v. Miller's Sons Co., 101 Ky. 368 (1897), holding that, while a somewhat similar statute made such a contract or agreement unenforcible and subjected the parties to it to indictment, it gave no private right of action at law or equity to those injured thereby; see also, Downes v. Bennett, 6i Kans. 653 (1901). An individual aggrieved by a violation of the "Sherman Anti-Trust Act" can not sue for an injunction, such remedy being available to the government alone, his sole remedy is the right provided therein to sue for threefold damages, National Fire'proofing Co. V. Mason Builders' Assn., 169 Fed. 259 (1909). 1266 COTE v. MURPHY. ever they could, and thus go on with their contracts; if they succeeded in purchasing the necessary material, the result would be, that at least some of the striking workmen would have employment at a higher rate of wages than the two associations were willing to pay; the tendency of this was to strengthen the cause of the strikers, for those employed wera able to con- tribute to the support of their fellow workmen who were idle. The two associations already named, sought to enlist all concerned as contractors and builders or as dealers in supplies, whether members of the associations or not, in furtherance of the one object, resistance to the demands of the workmen. The plaintiff, and six other individuals or firms engaged in the same business, refused to join them, and undertook to continue sales of building material to those builders who had conceded the eight-hour day. The Planing Mill Association and Builders' Exchange tried to limit their ability to carry on work at the advance, by inducing lumber dealers and others to refrain from shipping, or selling them in quantities, the lumber and other material necessary to carry on the retail business; in several in- stances, their efforts were successful, and the plaintiff did not succeed in purchasing lumber from certain of the wholesale dealers in Cleveland and Dubois, where he wanted to buy. The defendants were active members of one or other or both of the associations engaged in the contest with the striking workmen. The strike continued about two months; after it was at an end, the plaintiff brought suit against the defendants, averring an unlawful and successful conspiracy to injure him in his business, and to interfere with the course of trade generally, to the injury of the public; that the con- spiracy was carried on by a refusal to sell to him building materials them- selves, and by threats and intimidation preventing other dealers from doing so. Under the instructions of the court upon the evidence, there was a ver- dict for the plaintiff in the sum of $2,500, damages, which the court reduced to $1,500; then judgment, and from that defendants take this appeal. The plaintiff's case is not one which appeals very strongly to a sense of justice. "The reason of the law is the life of the law," and, as given in the cases cited by appellee, irresistibly impels to the conclusion that the com- bination here was not unlawful;^ a conclusion which is clearly indicated ^The following extracts from the opinion sufficiently show the reasoning by which the conclusion was reached : "The mechanics of Pittsburgh, engaged in the different building trades, on 1st of May, 1891, demanded that eight hours should be computed as a day in payment of their wages. Their right to do this is clear. It is one of the indefeasible rights of a mechnic or laborer in this commonwealth to fix such value on his services as he sees proper, and, under the constitution, there is no power lodged anywhere to compel him to work for less than he chooses to accept. But in this case the workmen went further; they agreed that no one of them would work for less than the demand, and by all lawful means, such as reasoning and persuasion, they would prevent other workmen from working for less. Their right to do this is also clear. At common law, this last was a conspiracy and indictable, but under the acts of 1869, 1872, 1876 and 1891, employees, acting together by agreement, may, with a few excep- tions, lawfully do all those things which the common law declared a con- spiracy. The employers, contractors and others, engaged in building and furnishing supplies, members of the two associations already mentioned, to which these defendants belonged, refused to concede the demands of the workmen, and there then followed a prolonged and bitter contest. The COTE V. MURPHY. 126/ in Com. V. Carlisle (Brightly's R. 39), that it would not be unlawful, if there was first recurrence to artificial means by workmen to raise the market price. Here, the step provocative of a combination by the employers, was an attempt by lawful, artificial means on the part of the workmen to control the supply of labor, preparatory to a demand for an advance. Nor does the fact that the appellee was not a workman or a memoer of any of the unions of workmen, put him in any better attitude than if he were. He undertook for his own profit to aid the cause of the workmen; his right so to do was unquestionable. But, if the employers by a lawful combination could limit his ability so to do, they did not make themselves answerable in damages to him for the consequences of a lawful act. But if the agreement itself were not unlawful, were the methods to carry it out unlawful? If the employers' combination here had used illegal members of the association refused to furnish supplies to those engaged in the construction of any building where the contractor had conceded the eight-hour day. This, as individual dealers, they had a clear right to do. They could sell and deliver their material to whom they pleased. But they also went further ; they agreed among themselves that no member of the association would furnish supplies to those who were in favor of or had conceded the eight-hour day, and that they would dissuade other dealers, not members of the associations, from furnishing building material to such contractors or retail dealers; to the extent of their power, this agreement was carried out. This clearly was combination, and the acts of assembly referred to do not, in terms, embrace employers; they only include within their express terms workmen; hence, it is argued by counsel for appellee, these defendants are subject to all the common-law liability of conspirators in their attempts to resist the demand for increased wages ; that is, there can be a combination among workmen to advance wages, but there can be no such combination of employers to resist the advance; that which by statute is permitted to the one side, the common law still denies to the other. Before any legislation on the question, it was held that a combination of workmen to raise the price of labor, or of employers to depress it, was un- lawful, because such combination interfered with the price which would otherwise be regulated by supply and demand; this interference was in restraint of trade or business, and prejudicial to the public at large. Such combination made an artificial price; workmen, by reason of the combination, were not willing to work for what otherwise they would accept; employers would not pay what otherwise they would consider fair wages. Supply and demand consist in the amount of labor for sale and the needs of the employer who buys. H more men ofl'er to sell labor than are needed, the price goes down and the employer buys cheap; if fewer than required oft'er, the price goes up and he buys dear ; as every seller and buyer is free to bar- gain for himself, the price is regulated solely by supply and demand. On this reasoning was founded common-law conspiracy in this class of cases. But, in this case, the workmen, without regard to the supply of labor or the demand for it, agree upon what in their judgment is a fair price, and then combine in a demand for payment of that price; when refused, in pursuance of the combination, they quit work, and agree not to work until the demand is conceded; further, they agree by lawful means to prevent all others, not members of the combination, from going to work until em- ployers agree to pay the price fixed by the combination. And this, as long as no force was used or menaces to person or property, they had a lawful right to do. And so far as is known to us, the price demanded b}' them may have been a fair one. But it is nonsense to say that this was a price fixed by supply and demand ; it was fixed by a combination of workmen on their combined judgment as to its fairness; and, that the supply might not lessen it, they combined to prevent all other workmen in the market from accepting less. Then followed the combination of employers, not 1268 COTE Z'. MURPHY. methods or means to prevent other dealers from selling supplies to plaintiff, the conspiracy might still have been found to exist. The threats referred to, although what are usually termed threats, were not so in a legal sense. To have said they would inflict bodily harm on other dealers, or vilify them in newspapers, or bring on them social ostracism, or similar declara- tions, these the law would have deemed threats, for they may deter a man . of ordinary courage from the prosecution of his business in a way which accords with his own notions ; but to say, and even that is inferential from the correspondence, that if they continued to sell to plaintiff the members of the association would not buy from them, is not a threat. It does not interfere with the dealer's free choice; it may have prompted him to a somewhat sordid calculation ; he may have considered which custom was most profitable, and have acted accordingly ; but this was not such coercion and threats as constituted the acts of the combination unlawful : Rodgers v. Duff, 13 Moore, P. C. 209; Bowen v. Matheson, 14 Allen, 499; Bohn Mamt- jacturing Co. v. Hollis, et al., 54 Minn. 223. to lower the wages theretofore paid, but to resist the demand of a com- bination for an advance ; not to resist an advance which would naturally follow a limited supply in the market, for the supply, so far as the work- men belonging to the combination were concerned, was by combination wholly withdraw, and as to workmen other than members, to the extent of their power, they kept them out of the market; by artificial means, the market supply was almost wholly cut off. The combination of the employers, then, was not to interfere with the price of labor as determined by the common-law theory, but to defend themselves against a demand made alto- gether regardless of the price, as regulated by the supply. The element of an unlawful combination to restrain trade because of greed of profit to themselves, or of malice towards plaintiff or others is lacking, and this is the essential element on which are founded all decisions as to common- law conspiracy in this class of cases. And however unchanged may be the law as to combinations of employers to interfere with wages, where such combinations take the initiative, they certainly do not depress a market price when they combine to resist a combination to artificially advance price." It was also held that the element of "real damage" to the plaintiff was absent, the court saying: "by far the larger number of dealers in the city and county were members of the combination which refused to sell ; only the plaintiff and six others refused to enter the combination; the result was that these seven had almost a monopoly of furnishing supplies to all builders who conceded the advance. Plaintiff admits in hrs own testimony that thereby his business and profits largely increased; in a few instances he paid more to wholesale dealers and put in more time buying than he would have done if the associations had not interfered with those who sold him; but it is not denied that, as a result of the combination, he was individually a large gainer. True, he avers that, if defendants had gone no further than to refuse to sell themselves, he would have made a great deal more money; that is, he did not make as large a sum as he would have made if thej'- had not dissuaded others, not members of the association, from selling to him; but that, by the fact of the combinations and strike, he was richer at the end than when they commenced, is not questioned." "We then have these facts, somewhat peculiar in the administration of justice: A plaintiff suing and recovering damages for. an alleged unlawful act, of which he himself, in so far as he aided the workmen's combination, is also guilty, and both acts springing from the same source, a contest be- tween employers and employed as to the price of daily wages ; and then the further fact, that this contest, instead of damaging him, resulted largely to his profit." BROWN' f. JACOns' PHARMACY CO. I269 BROWN & ALLEN v. JACOBS' PHARMACY CO. Supreme Court of Georgia, 1902. 115 Ga. 429. Appeal from an injunction granted by Lumpkin, J., Fulton, Superior Court. Fish, J. The record in this case discloses that, prior to the institution of the present action and since then there existed in the United States three organizations, known respectively as the Pro- prietary Association of America, the National Wholesale Druggists Association, and the National Association of Retail Druggists. These associations, occupying each toward the others close and in- timate relations, had, among other things, the purpose of keeping up the prices of proprietary medicines, drugs, and other articles usually dealt in by those engaged in the drug trade. A local asso- ciation was formed in Atlanta, known as the Atlanta Retail Drug- gists Association. When it was first organized, Joseph Jacobs, sec- retary and treasurer of the Jacobs' Pharmacy Co., the plaintiff in the present case, was a member of it, but at that time it was distinctly understood and agreed among its members that it was to undertake no action with reference to the cutting of prices by dealers in drugs, or to control prices of the same. In consequence of charges brought against him as to his advertising methods, etc., the complainant with- drew from the association. Some of the members of the associa- tion were niembers of one or more of the large associations above referred to. After the retirement of Jacobs, the local concern put in operation a scheme to prevent the Pharmacy Co. from being able to buy goods with which to conduct its business. The main features of the scheme were, that the local concern, by circulars, letters, or otherwise, undertook to notify wholesalers and manufacturers throughout the country that the Pharmacy Co. was an aggressive cutter, and to request the persons or concerns addressed not to sell it any more goods ; further, to require all salesmen representing the manufacturers or wholesale houses to procure from the local asso- ciation a card, in order to procure which such salesmen had to sign an agreement not to sell the Pharmacy Co. any goods ; and another [)art of the scheme was to give the manufacturers and wholesalers to understand that, unless they refused to sell the plaintiff any goods. the members of the local association would not buy any more goods from them. In this condition of aft'airs the plaintiff brought its equitable petition against the defendants, alleging, in substance, the facts set forth above, and praying for damages for alleged in- juries to its business already done, and for an injunction to prevent the defendants from carrying into effect the scheme above outlined. The petition charged that the scheme was an unlawful conspiracy to destroy the plaintiff's business ; and it more fully set out the man- ner in which this scheme was to be eft'ectuated, by setting forth, as exhibits marked, A, B, and C, certain letters, etc., by means of which the defendants were seeking to accomplish the alleged unlaw- ful purpose which the plaintiff was seeking to restrain. These ex- 1270 BROWN V. JACOBS PHARMACY CO. hibits were in substance as follows : A circular letter written by the defendants' association to wholesalers, after stating that there were fifty-eight retailers in the association and only one price "cut- ter" and expressing its belief that they would prefer the support of the former to that of the "cutter," called attention to an enclosed resolution of the association requiring that salesmen with whom the association shall make purchases shall have cards which were issued only by them, or the wholesalers or manufacturers whom they rep- resent sign an agreement, enclosed in the letter, binding them to sell only to members of the defendants' association and others who have not been designated as aggressive price cutters. A conspiracy has been defined as a combination either to ac- complish an unlawful end, or to accomplish a lawful end by un- lawful means. The terms "criminal'' and "civil'' are used respec- tively to designate a conspiracy which is indictable or a conspiracy which will furnish ground for a civil action. To render a conspiracy indictable at common law, no overt acts in carrying out the design of the conspirators was necessary. The conspiring was sufficient to authorize an indictment. Yet it will be readily perceived that, if the conspirators stopped with conspiring, and did nothing further in execution of the design, no injury would have been done which would furnish a basis for a civil action. But if, in carrying out the design of the conspirators, overt acts were done, causing legal dam- age, the person damaged had a right of action. Saville v. Roberts, I Ld. Raym. 378. Hence arose the dictum that the gist of criminal conspiracy is the combination, and the gist of civil conspiracy is the injury or damage. It is suggested, inasmuch as the evidence shows that not all of the druggists of Atlanta are members of the local association, but only about three-fourths of them, that the combination or agreement was not obnoxious to this rule, or the rule declaring agreements or contracts tending to monopoly, against public policy, even if it would have been so were all members. We do not think this distinction sound. Nothing is more common than for the courts to declare con- tracts between only two persons, who by no means control a par- ticular kind of business, void as contrary to public policy.^^ It is the nature or character and tendency of the agreement which ren- ders it objectionable, whether in fact the parties to it succeed in restraining trade generally, or stifling competition, or not. As to the matter of monopoly, it may also be said that if parties make contracts or agreements seeking to establish a monopoly, and do establish it as far as they can, surely they cannot say that the effort is legal if not completely successful. ^Citing Bailey v. Master Plumbers' Assn., 103 Tenn. 99 (1899), a com- bination of master plumbers similar to that in Macaulcy v. Tierney, was held so far illegal that no action lav to recover penalties for violaUon of its by-laws. "The individual right is radically different from the combined action. The combination has hurtful powers and influences not possessed by the individual. It threatens and impairs rivalry in trade, covets control m prices, seeks and obtains its own advancement at the expense and in the oppression of the public. The difference in legal contemplation between BROWX V. JACOBS PHARMACY CO. 12/1 In Moore v. Bennett (111. 1892), 15 L. R. A, 361, it was held that an association of stenographers of which one object was to control the prices to be charged for stenographic work by its mem- bers, by restraining all competition between them, was an illegal combination, although only a small portion of the stenographers of the city belonged to it. In the opinion Bailey, J., says (p. 364) : "Contracts in partial restraint of trade which the law sustains are those which are entered into by a vendor of a business and its good will with his vendee, by which the vendor agrees not to engage in the same business within a limited territory,, and the restraint, to be valid, must be no more than is reasonably necessary for the pro- tection of the vendee in the enjoyment of the business purchased." The next position of the defendants, and one which, on first presentation, seems to be their strongest defense on this part of the case, is that, at common law, contracts or agreements in general or unreasonable restraint of trade were merely void and unenforceable : that either party could defend against an action based on them ; but that they were not illegal in such sense as to give a right of action to third parties. While there may be conflict among the authorities, it seems to us that some confusion might have been avoided by bear- ing in mind the distinction between a contract or agreement merely in restraint of trade as between the parties, and a combination or contract to stifle competition, or a conspiracy to ruin a competitor. Thus if one of two rival merchants, not purchasing the business of the other, contracted with him that the latter should cease business and never enter mercantile pursuits at any time or place, the con- tract would be in general restraint of trade, and void, and could not be enforced. But it alone would not give a right of action to third parties ; and although the retiring from business of one of the mer- chants might lessen facilities for trading, and incidentally cause in- convenience, or even put it in the power of the other to raise his prices, the contract as such would be merely void. But, on the other hand, suppose that two merchants should agree that one should retire from business and that no other person should open a similar business, and if he did so, that the two would drive away his cus- tomers or break up his business by violence, threats, or like means, it would get beyond the domain of a mere non-enforceable contract into the domain of conspiracy. Or suppose that a number of mer- chants should agree to fix the price of certain goods and not to sell below that price, if there were no statute on the subject, and the case rested on the common law, the agreement would simply be non- enforceable ; but if they went further and agreed that, if any other merchant sold at a less price, they would force him to their terms individual rights and combined action in trade is seen in numerous cases. India Bagging Association v. Kock, 14 La. Ann. 168; Arnot v. Pittston & E. Coal Co., 68 N. Y. 558; Morris Run Coal Co. v. Barclav Coal Co.. 68 Pa. St. 173; The Sugar Trust Case, 3 N. Y. S. 401, 7 X. Y. S. 406; United States V. Trans-Missouri Freight Assn., 166 U. S. 290; United States v. Joint Traffic Assn., 171 U. S. 505; Hooker v. Vandewater, 4 Denio (N. Y.) 349; Stanton V. Allen, 5 Denio (N. Y.) 434; Craft v. M^cConoughy, 79 III. 346; Nester v. Continental Brewing Co., 161 Pa. St. 473." 1272 BROWX 1'. JACOBS IMJAKMACV CO. or drive away those dealing with him, by violence, threats, or boy- cotting, it would cease to be a mere non-enforceable contract ; and if in its execution damages proximately resulted to such other mer- chant, he would have a right of action. For two or more people to make an agreement which neither can enforce at law against the other is one thing ; but to further agree, and under that agreement proceed to force another who is no party to it, against his will, to 'be governed by it, under penalty of financial ruin by driving off his customers, or the like, is, to use a favorite expression of former Chief Justice Warner, "another and quite a different thing." Courts and text-writers have not infrequently asserted that, as a general rule, a conspiracy can not be made the subject of a civil action unless something is done, which, without the conspiracy would give a right of action. Unquestionably any person who does not occupy a public or quasi-public position (like public officials, railroad companies, etc.), or whose property has not become impressed with any public or quasi public use {Miinn v. Illinois (1876), 94 U. S. 113), may or- dinarily deal with any other person at his option. It may also be conceded, at least for the sake of the argument, that ordinarily a number of persons may in concert decline to sell to or buy from an- other. Yet the facts of the present case go much further than that. Here there was a combination, not merely agreeing not to deal with the plaintiff, but undertaking also to drive oft' and prevent others from dealing with it, and seeking to ruin its business by destroying its power to purchase goods, unless it should submit to regulate its business or fix its prices as they desired. If the defendants, as in- dividuals, or in any way, claim to have the right to fix the prices at which they will sell, how can they claim the plaintiff has no such right as to its own business? To protect the individual against encroachments upon his rights by greater power is one of the most sacred duties of courts. If there is any analog}' between a combina- tion of druggists to raise and maintain prices, and a biological species, the Darwinian theory is hardly a rule for a court in ad- ministering equity. We will now refer to some authorities cited by defendants. A leading case, in modern times, is the English case of Mogul Steam- ship Co. V. McGregor, 23 Q. B. Div. 608. The majority of the court of appeal found, as matter of fact, that the defendants were not en- gaged in a conspiracy or unlawful combination, and were not ac- tuated by malice or ill-will toward plaintift', and did not aim at any general injury to plaintift's trade, the object being simply to divert the trade from plaintiff to defendants, and that the damage to be in- flicted was to be strictly limited by the gain which defendants desired to win for themselves ; in other words, that it was a case of competition only. Of course, the loss which a rival may suffer from legitimate competition does not give a right of action. A careful consideration of the various decisions in this case will show that, in substance, it only held that where competition was lawful, even if sharp, and the acts complained of were adopted for the advancement BROWN V. JACOBS PHARMACY CO. 12/3 of the defendants' own trade, there was no actionable conspiracy, although plaintiff may have sustained loss thereby. If this decision should be deemed adverse to the views here presented, it may be well to contrast the public policy of this state with that mentioned by Fry, L. J.- Bowen v, Matheson, 14 Allen, 499, will be found to have been decided on the idea of competition, but it is not a well- considered case, reviews none of the authorities (but one being cited), and decides only as to certain allegations on demurrer. It has been criticised by Mr. Eddy, whose book shows that he ap- proached the subject without any prejudice against combinations. I Eddy, Comb. §571. Mr. Freeman in his note to Hardin v. Ameri- can Glucose Co., 74 Am. St. R. 244, says : "Massachusetts seems also to have gone astray on the question of illegal combinations, . , . having confused the doctrine relating to contracts in restraint of trade and the doctrine against restrictions upon competition." Mc- Caulcy V. Tierncy (R. I. 1895) 33 L. R, A. i, is another case relied on by defendants. If this decision is sound, it can only be on the idea that the defendants were seeking to obtain trade for them- selves by saying, in effect: "If you deal with us, we will deal with you ; if you deal with others, we will withdraw our patronage." Whether such an agreement was legally enforceable need not be dis- cussed. There was no effort to compel or coerce others not mem- bers to be bound by their prices or views. If the decision in Bohn Mfg. Co. V. Hollis, 54 Minn. 223, 55 N. W. 11 19, 40 Am. St. R. 319, can be sustained, it must be on the same idea. No compulsory meas- ures seem to have been used to enforce obedience on members ; nor does there appear to have been any effort to drive away from plain- tiff others than those voluntarily acting together in concert, and no pressure on outsiders to maintain prices or incur ruin. In truth, however, some of what was said in that decision is unsound, and not in accord with cases already cited. It has been considerably criti- cised. It seems, too, that in some cases in New York and elsewhere an idea has arisen of determining how much competition is desirable, and apparently of holding that extreme competition is undesirable, and a combination to meet it is not unlawful. Judgment affirmed.'' ""Engrossing, forestalling, and regrating still stand in our code as crim- inal offenses, and the presiding judge is required to give the law in reference to these offenses specially in charge to the grand jury at each term of court. See Penal Code, §§ 662, 846. Our State constitution declares that the legis- lature "shall have no power to authorize any corporation . : . to make any contract, or agreement whatever, with any such corporation (i. e., other corporations), which may have the effect, to defeat or lessen competition in their respective businesses, or to encourage monopoly; and all such con- tracts and agreements shall be illegal and void."' "See accord: Gat:;ozv v. Bnening, 106 Wis. 1 (1900), of the defendants, one was a member of the Liverymen's Association of Milwaukee, the other the secretary of the association. The former had contracted with an under- taker who was in charge of the burial of the plaintiff's child, to supply a hearse and carriage. By the rules of the association the members might not supply vehicles to persons who did not deal exclusively with its members. The secretary, believing that the undertaker in question dealt with persons 12/4 BOUTWELL V. MARP. 4. For the use of agreements surrendering the freedom of the individual to the will of the majority. / BOUTWELL v. MARK. Supreme Court of Vermont, 1899. 71 Vermont, 1. MuNSON, J. It is clear that every one has a right to withdraw his own patronage when he pleases, but it is equally clear that he has no right to employ threats or intimidation to divert the patron- age of another. If it be true as a general proposition that several may lawfully unite in doing to another's injury, even for the accom- plishment of an unlawful purpose, whatever each has a right to do individually, it by no means follows that the combination may not be so brought about as to make its united action an unlawful means. The defendants insist that as members of the association they had a right to resolve to keep their work among themselves, and that in the absence of anything tending to show an attempt on their part to influence the action of others, they cannot be held liable. It may be true that if the defendants, acting independently of any organiza- tion and moved solely by similarity of interest and views, had united in withdrawing their patronage, the effect upon the plaintiff's busi- ness would have been the same, and yet the defendants have incurred no liability. But in the case supposed the united action would result from tlie free exercise of individual choice. It will be seen upon fur- ther inquiry that this cannot be said of the action of an organization like that operated by the defendants. It is true, as suggested in argument, that every one engaged in business is liable to have it injured or destroyed by the action of those upon whom he depends for patronage. But when those upon whom he depends for patronage are acting as individuals, he has a measure of security in the probability that different preferences will be shown by persons left to their own choice ; and if some who desire to injure his business secure the cooperation of others by unlawful means, the law gives him a remedy. If the defendants are right, he can be deprived of this security and this remedy by converting those who desire his injury into the majority of an association, and those who do not into a suppressed minority, held to the designated course by the pressure of a system of fines and penalties. But giv- ing a new face to an old wrong can never defeat the remedy, for the law will require as to the substance of the thing complained of. If not members, notified the other defendant of the fact and called on him to obey the rules. He thereupon drove off leaving the plaintiff without the conveyances necessary for the proper burial of his child. The association was held an unlawful combination to monopolize a business essential to civ- ilized life and "to strike down competition and to hamper individual industry, so as to compel every person, in order to obtain proper facilities for a funeral, to submit to the dictates of a combine," and the defendants were liable for damages caused by their acts done in pursuance of its provisions. BOUTWELL Z'. MARK. « 12/5 the plaintiffs were in fact injured by a forced withdrawal of patron- age secured through the action of defendants' organization, they are entitled to redress. Without undertaking to designate with precision the lawful limit of organized effort, it may safely be affirmed that when the will of the majority of an organized body, in matters in- volving the rights of outside parties, is enforced upon its members by means of fines and penalties, the situation is essentially the same as when unity of action is secured among unorganized individuals by threats or intimidation. The withdrawal of patronage by con- certed action, if legal in itself, becomes illegal when the concert of action is procured by coercion. In this case, it could easily be found that a fine of fifty dollars for a violation of the rules was not intended to be applied to rules adopted to secure a performance of the ordinary duties of membership. If in fact designed to hold un- willing members to unity of action in aggressive movement of un- lawful character, the defendants cannot complain if the law so treats it.\ The jury could probably infer from the nature and man- agement of the defendants' organization that their united action was due in part to the means adopted to secure it. The force of the measure resolved upon lay partly in the fact that the by-laws threat- ened penalties against any one who should fail in carrying it into effect. The fact that the members of the association voluntarily assumed its obligations in the first instance, so far as it be a fact, is not con- trolling. The law cannot be compelled by any initial agreement of an associate member to treat him as one having no choice but that of the majority, nor as a willing participant in whatever action may be taken. The law sees in the membership of an association of this character both the authors of its coercive system and the victims of its unlawful pressure. If this were not so, men could deprive tTieir-^ fellows of established rights, and evade the duty of compensation, simply by working through an association. But it can hardly be sup- posed that the defendants' organization reached its present propor- tions without some previous use of the methods disclosed by the evidence above recited ; and as far as its membership was due to coercion, there was a further element of unlawful pressure in the enforcement of united action against the plaintiffs. It would be strange indeed if the members of an association, organized upon such a basis and advanced by such means, could meet a claim of this nature by saying that they had made no attempt to secure the coop- eration of outside parties. It is clear that if the association had comprised but a small portion of the manufacturers, and had destroyed the plaintiff's business by compelling other manufacturers to join them in withholding patronage, its members would have been liable. But it is claimed, in effect, that a business can be destroyed with impunity, when the organization has become so extensive that there are no outside patrons to control, or so few that their course is a matter of no moment. Upon this theory, every successful instance of coercion would increase the safety with which another coercion could be attempted, and when coercion had been pursued until but 1276 . MC CUNE V. NORWICH CITY GAS CO. one contumacious person remained, immunity would be complete. It is clear that the law cannot concede to organizations of this char- acter the powers and immunities claimed for their association by these defendants, and retain its own power to protect the individual citizen in the free enjoyment of his capital or labor. ^ SECTION 3. The Effect of a Dominating Desire to Injure the Plaintiff. McCUNE V. NORWICH CITY GAS CO. . Supreme Court of Errors of Connecticut, 1862. 30 Conn. 521. Sandford, J. This is a motion in arrest for the insufficiency of the declaration. There are two counts, but in all their material alle- gations they are substantially alike, and the same questions arise on both of them. The plaintiff alleges that the defendants were a corporation, created for the purpose, and engaged in the business, of making, distributing and selling illuminating gas, and that they had laid down their main pipes in the streets and lanes of the city for the convey- ance of gas to their customers ; that the plaintiff's rooms had been fitted up with gas-pipes and fixtures, connected with the defendants' main pipes, and that for some time immediately prior to the 15th November, 1858, the defendants had by means of said pipes sup- plied the plaintiff with gas for lighting said rooms for a certain rea- sonable compensation paid therefor, and that the plaintiff desired to continue to light his said rooms with gas as aforesaid, and was ready and willing to pay to the defendants a reasonable compensation for the same, and to abide by all the reasonable rules and regulations of said company, and requested the defendants to continue to supply said rooms with gas ; and that it then became and was the duty of the defendants to continue to supply the plaintiff with gas for the purposes aforesaid on the conditions aforesaid ; yet that the de- fendants, not regarding their said duty, but contriving and intending to vex and annoy the plaintiff in the use and enjoyment of his said premises, maliciously, wantonly, and without any justifiable cause, and contrary to the mind and will of the plaintiff, refused to supply the plaintiff with gas, and shut off the same from entering the gas pipes of said rooms, &c. ; by reason whereof the plaintiff has been deprived of the means of lighting said rooms with gas, and of the ^Accord: Martell v. White, 185 Alass. 255 (1904), similar fact; and see Jackson v. Stanfield, post; and Shinola Co. v. House of Krieg, 138 N. Y. Suppl. 1015 (1912) ; and compare Downcs v. Bennett, 63 Kans. 653 (1901), in which the court denied the injunction on the ground that there was no proof that anv member of an association was prevented from dealing with the plain- tiff. In Bradley v. Pierson, 148 Pa. St. 502 (1892), the court refused to admit evidence as to what the rules of the defendant association required its members to do, when a workman, blacklisted by one member, applied for work to another ; and see Baker v. Ins. Co. and Trimble v. Ins. Co., Note 1 to London Guarantee Co. v. Horn. I MC CUNE V. NORWICH CITY GAS CO. I277 use and enjoyment of said gas fixtures, and has been put to great ex- pense in providing other means of hghting said rooms, &c." No contract for the supply of gas for any definite period is al- leged to have been made by the defendants, nor indeed any contract at all. The entire foundation of the plaintiff's claim, as it is set out in this declaration, rests upon the supposed legal duty or obligation, independent of any contract, to continue the supply. But no facts are stated from which such duty or obligation arises, and the allega- tion of a duty or liability is of no avail, and will not help a declara- tion, unless the facts necessary to raise it are stated. Had the defendants agreed to furnish the 'plaintiff with gas for any specified time, or until they should give notice of their in- tention to discontinue the supply, they would undoubtedly have been liable in damages for the nonperformance of such contract, but the contract itself must have been set up in the declaration and the action must have been founded upon it. And perhaps too, had the plaintiff declared upon a contract by the defendants to supply him with gas until they should give him reasonable notice of their intention to discontinue such supply, the jury might have found such contract and its violation, upon proof of the facts and circumstances detailed in this declaration. But no such case is now before us, and we know of no principle upon which we could stand in holding the defendants liable upon the facts set up in this declaration. The manufacture and sale of gas is a business which may be prosecuted or discontinued at the will of the party engaged in it. The relations between the maker and the consumer originate in the contract between them, and their respective rights and obligations are controlled entii:ely by the stipulations of such contract, and as, (where no contract prohibits,) the one may refuse to take the article at his pleasure, so may the other at his pleasure refuse to supply it. We discover no reason for subjecting the maker of gas to duties or liabilities beyond those to which the manufacturers and vendors of other commodities are subjected by the rules of law. The articles of association under which the defendants are organized and exist as a corporate body, confer upon them no peculiar powers, and im- pose no peculiar duties or obligations affecting the question now be- fore us. The allegation that the defendant cut off the supply of gas maliciously and zvantonly, and ivith intent to injure the plaintiff, is of no importance in the determination of this question. Where a party has a legal right to do a particular act at pleasure, the motive which induced the doing of the act at the time in question can never affect his legal liability for the act, whatever effect such motive may have upon the quantum of damages, when his liability is fixed. We think the motion in arrest ought to prevail, and we advise accordingly. In this opinion the other judges concurred.^ ^ Nor is it more unlawful to combine with others for such purpose, Col- lins V. American News Co., 34 Misc. 260 (N. Y. 1901), affirmed 68 App. Div. 639 (N. Y. 1902), defendants, newspaper publishing companies, agreed to dis- 12/8 ERTZ V. PRODUCE EXCHANGE ,0 ' ■ A ERTZ V. PRODUCE EXCHANGE OF MINNEAPOLIS. Supreme Court of Minnesota, 1900. 79 Minn. 140. / Appeal from the order of the district court of Hennepin county overruHng the defendants' demurrer .to the plaintiff's complaint. The material facts alleged in the complaint are these :^ The p laintiff is and has been for some time a co mmission mer - ' chant . h\jym g and -^^^''^g- fnrni p'-'^d'^^^ As such it is necessary lor- him to buy such produce in the Minneapolis market and resell the ^ame to his cust omers. The defendants are engaged in buying and selhng farm produce and are practically all persons, firms and cor- porations so engaged in Minneapolis and control the quantity and price of such produce and the purchase and sale thereof. Up to July 19, 1889, the plaintiff was accustomed to buy from tTiem. But on that day and thereafter the defendants, the produce exchan^^e. conspired with the other defendants not to sell to or buy of the plaintiff any farm produce, and maliciously solicited and procured from them and from many other persons to the plaintiff unknown, an agreement not to buy or sell such produce from or to the plain- tiff and did induce such other defendants and other persons not to sell to him or buy of him. In pursuance of the conspiracy all the defendants have refused to deal with the plaintiff and have circu- lated among his patrons reports that he was unable to buy such produce, with the intent to induce such patrons to discontinue doing business with the plaintiff. The business of the plaintiff, by reason of the premises, has been ruined and he has been damaged thereby in the sum of $20,000. Start, C. J. The defendants rely upon the case of Bohn Mfg. Co. V. HolUs, 54 Minn. 223, 55 N. W. 11 19, in support of their con- tention that the defendants' acts in question were lawful. The gen- eral propositions of law laid down in the decision in that case are sound as applied to the facts of that particular case. continue selling their papers to the plaintiff, a newsdealer, unless he aban- doned the distribution of advertisements which threatened injury to their own advertising business. "There is no place in any system of jurisprudence yet devised for the principle that a man may be compelled to sell his goods or his labor to one with whom he does not wish to deal merely because his refusal to do so may cause loss to him who wants them." See Reynolds v. Plumbers' Material Protective Ass'n, 30 Misc. 709 (N. Y. 1900) ; Schulten v. Bavarian Brewing Co., 96 Ky. 224 (1894) ; and Lough v. Outerbridg'e, 143 N. Y. 271 (1894), p. 283; and Orr v. Home Miit. Ins. Co., .12 La. Ann. 255 (1857) ; Hunt v. Simoiids, 19 Mo. 583 (1854) ; Baker v. Ins. Co. and Trimble V. Prudential Ins. Co., 64 S. W. 915 (Ky. 1901), cited in Note 1 to Macauley V. Tierney, ante. As to what Professor James Barr Ames regards as the fundamental dis- tinction between a malevolent act and a malevolent misfeasance, see 18 Harv. L. R. p. 416, n. 1. "According to recent French authority', even the refusal to contract may in certain circumstances be an abuse of right," F. P. Walton, Esq., Motive as an Element in Torts, 22 Harv. L. R. 501, p. 509, see cases cited by him in notes 4, 5 & 6. ^ The allegations in the complaint are slightly condensed. I ERTZ V. PRODUCE EXCHANGE. 1 279 It is to be noted that the defendants in the Bohn case had simi- lar legitimate interests to protect, which were menaced by the prac- tice of wholesale dealers in selling lumber to contractors and con- sumers, and that the defendants' efforts to induce parties not to deal with offending wholesale dealers were limited to the members of the association having similar interests to conserve, and that there was no agreement or combination or attempt to induce other persons not members of the association to withhold their patronage from such wholesale dealer. In this respect the case differs esser\tially from the one at bar, in which the complaint does not show that the de- fendants had any legitimate interests to protect by their alleged com- bination. On the contrary, it is expressly alleged in the complaint that the combination, which was carried into execution, was for the ^ c^nlp pit rpriBA nf I'njnri'ng the ^^pla Jntiff's business^_ an^jji a i; thg defend- — ants conspired to induce the plamtitt's patronsand persons, other than the defendants, to refuse to deal with him. Such alleged acts on the part of the defendants are clearly unlawful. It is true, as claimed by the defendants and as stated in the Bohn case, that a man, not under contract obligations to the con- trary, has a right to refuse to work for, or deal with, any man or class of men, as he sees fit, and that the right which one man may exercise singly, many may lawfully agree to do jointly by voluntary association, provided they do not interfere with the legal righ ts of others. But one man singly, or any number of men jointly, havmg no legitimate interests to protect, may not lawfully ruin the business/ of another by maliciously inducing his patrons and third parties notj to deal with him. ' See Walker v. Croriin, 107 Mass. 555, s62;Dcf!?Tr Winfree, 80 Tex. 400, 16 S. W. in ; Graham v. St. Charles, 47 La. An. 214, 16 So. 806; Hopkins v. Oxley S. Co., 49 U. S. App. 709. This is just what the complaint in this case charges the defendants with doing, and we hold that it states a cause of action.^ "" Accord: Delz v. Winfree, 80 Tex. 400 (1891), where the defendants were also traders combining to refuse to supply a competitor with goods to sell and to induce, by means not stated, others not members of the com- bination to do the same, the court does not consider the question as to whether such conduct is justifiable as legitimate competition; Globe, etc., Ins. Co. V. Firemen's Fund Ins. Co., 97 Miss. 148 (1910), defendants, with intent to ruin the plaintiff's business, induced their agents to leave them. In Olive and Stcrncnberg v. Van Patten, 7 Tex. Civ. App. 630 (1894), the defendants were associated retail merchants who, desiring to stop the prac- tice of manufacturers selling directly to consumers, and the plaintiff was a manufacturer so selling, the means used was a circular sent to all retailers, whether members of the association or not, appealing to them to discourage this practice, as detrimental to their interests, by refusing to sell to the plaintiff, Collard, J. said: "It can not be held that the defendants had the right to prevent plaintiffs from selling to customers or that such interfer- ence by them (the defendants) was serving a legitimate purpose connected with their own business. To break plaintiffs down as competitors for the consumers' trade might, it is true, result in benefit to defendants, but such a benefit obtained in such a manner could not be deemed a legitimate pur- pose within the meaning of the opinion quoted," (i. e., that in Del:: v. JVin- free, Norman and Pearson). To withdraw or threaten to withdraw one's patronage from those who I28o TUTTLE V. BUCK. 'J TUTTLE V. BUCK. Supreme Court of Minnesota, 1909. 107 Minn. Rep. 145. Elliott, J. It has been said that the law deals only with exter- nals, and that a lawful act cannot be made the foundation of an action because it was done with an evil motive. In Allen v. Flood, (1898) A. C. I, 151, Lord Watson said that, except with regard to crimes, the law does not take into account motives as constitutinis^ an element of civil wrong. In Mayor v. Pickles, (1895) A. C. 587, Lord Halsbury stated that if the act was lawful, ''however ill the motive might be, he had a right to do it." In Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am. St. 882, the court said that, "when one exercises a legal right only, the motive which actuates him is immaterial." In Jenkins v. Fowler, 24 Pa. St. 3087 Mr. Justice Black said that "malicious motives made a bad act worse, but they cannot make that wrong which, in its own essence, is lawful." This language was quoted in Bolin Mfg. Co. v. ffollis, 54 Minn. 223, 2^2,, 55 N. W. 11 19, 21 L. R. A. 337, 40 Am. St. 319, and in substance in Ertz v. Produce Exchange, 79 Minn. 140, 143, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. 433. See also 2 Cooley Torts (3d Ed.) 1505 ; Auburn v. Douglas, 9 N. Y. 444. Such generalizations are of little value in determining concrete cases. They may state the truth, but not the whole truth. Each word and phrase used therein may require definition and limitation. Thus, before we can apply Judge Black's language to a particular *case, we must determine what act is "in its own essence law- ful." What did Lord Halsbury mean by the words "lawful act"? What is meant by "exercising a legal right" ? It is not at all correct to say that the motive with which an act is done is always immaterial. providing the act itself is not unlawful. Numerous illustrations of the contrary will be found in the civil as well as the criminal law. In Plant v. Woods, 176 Mass. 492, 57 N. E. ion, 51 L. R. A. 339> 70 Am. St. 330, Mr. Justice Hammond said: "It is said also that, where one has the lawful right to do a thing, the motive by which he is actuated is immaterial. One form of this statement ap- pears in the first headnote in Allen v. Flood, as reported in (1898) A. C. I, as follows: 'An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer deal with a noncompetitor where the object is to punish him for conduct personally offensive or only indirectly injurious to one's business, is actionable if it injure his business and may be restrained by injunction. Webb v. Drake, 52 La. Ann. 290 (1899), the defendants, merchants, con- trolling the greater part of the business in the locality, who, resenting the plaintiff's conduct as assessor, refused to buy of "drummers" who stopped at plaintiff's hotel; Baldwin v. Liquor Dcalcs' Assn., 165 Mich. 98 (1911), customers and advertisers in the complainant's paper, which had criticised the manner in which the saloon business was carried on in the town, were coerced into withdrawing their patronage by threats on the part of the defendants that otherwise they would cease to deal with such customers and advertisers; with which compare Lewis v. Huie-Hodge Lumber Co., I^( La. 658 (1908). TUTTLE 7'. BUCK. I281 of the act liable to a civil action." If the meanings of this and similar expressions is that where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the proposition a mere truism. If, however, the meaning is that where a person, IS if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circumstances, the proposition does not commend itself to us as either logically or legally accurate." It is freely conceded that there are many decisions contrary to this view ; but, when carried to the extent contended for by the appellant, we, think they are unsafe, unsound, and illy adapted to modern conditions. To divert to one's self the customers of a busi- ness rival by the offer of goods at lower prices is in the general a legitimate mode of serving one's own interest, and justifiable as fair competition. But when a man starts an opposition place of businessA ^2/lA- not for the sake of profit to himself, but regardless of loss to ^''i"'^"\/jNJ[^-^ self, and for the sole purpose of driving his competitor out of busi- \J^ ness, and with the intention of himself retiring upon the accomplish- ment of his malevolent purpose, he is guilty of a wanton wrong and an actionable tort. In such a case he would not be exercising his legal right, or doing an act which can be judged separately from the motive which actuated him. To call such conduct competition is a perversion of terms. It is simply the application of force without legal justification, which in its moral quality may be no better than iiighway robbery. Nevertheless, in the opinion of the writer this complaint is in- -jufficient. It is not claimed that it states a cause of action for slan- der. No question of conspiracy or combination is involved. Stripped of the adjectives and the statement that what was done was for the sole purpose of injuring the plaintiff, and not for the pur- pose of serving a legitimate purpose of the defendant, the complaint states facts which in themselves amount only to an ordinary every- day business transaction. There is no allegation that the defendant was intentionally running the business at a financial loss to himself, or that after driving the plaintiff out of business the defendant closed up or intended to close up his shop. From all that appears from the complaint he may have opene d^the barber shop, energet- ically sought business from his acquaintan ces and the custo u i prs r vt- the plaintiff, and as a result of his enterpri se and command of cao i- tal obtained it, with the result that t he plaintiff, from wan t of capi- tal, acquaintance, or enterprise, wa<;lTn;^b jp to stand__ the competition and was thus driven out of business. The facts thus alleged do not, in my opinion, in themselves, without reference to the way in which they are characterized by the pleader, tend to show a malicious and iVanton wrong to the plaintiff. A majority of the justices, however, are of the opinion that, on 1282 TUTTLE V. BUCK. « the principle declared in the foregoing opinion, the complaint states a cause of action, and the order is therefore affirmed. Affirmed. Jaggard, J., dissents. ^ In 18 Harvard Law Review 420, the late Professor James Barr Ames expressed his opinion that the defendant would be liable under facts sub- stantially identical with those in the principal case, which facts, however, he thought impossible of occurrence. Accord: Boggs v. Duncan-Schcll Furniture Co., 143 N. W. 482 (Iowa 1913), the defendants' agency for the sale of sewing machines having been terminated by the maker and the plain- tiff having been appointed as successor, the defendant threatened to drive the plaintiff out of business with the same machine. The defendant thereupon procured some old machines of the same make and advertised them as just received, the latest pattern and equipped with the most modern appliances, and for sale at practically half the price charged by the plaintiff. The plaintiff attempted to buy up these old machines and complained of the ad- vertisement as hurting his business. The defendant refused to sell them and said that he did not care what effect his advertisement had he advertised just as he pleased. It was held that the plaintiff might recover for the harm done by the defendant. Contra: Passaic Print Works v. Ely & Walker Dry Goods Co., 105 Fed. 163, 44 C. C. A. 426 (1900), demurrer sustained to a declaration in which the plaintiff, a manufacturer of calicoes, alleged that the defendant. a wholesale dealer in dry goods, conspiring with persons unknown and ma- liciously intending to injure the plaintiff in its business, cause it great loss and ruin its trade with jobbers in St. Louis, had advertised a stock of goods owned by the defendant but of the plaintiffs' manufacture, for sale at prices less than that fixed by it, so causing jobbers, who had bought its goods, to cancel their contracts or demand rebates in price, and making other jobbers afraid to buy its goods except in small quantities and at low prices. Sanborn, J., dissented on the ground that these acts done with such an object, required justification, but conceded that they could be justified if done for the purpose of selling them for what the defendants believed to be their own gain or in competition with the plaintiff for trade; and see Cole- ridge, C. J., in giving judgment for the defendant in the Court of Queen's Bench in The Mogul Steamship Co. v. McGregor, L. R. 21 Q. B. D.. pp. 544, 552, "The question comes at last to this, what was the character of these" (the defendants') "acts and what was" (their) "motive in doing them?'" CHAPTER V. Regulation of the Exercise of Mutually Conflicting Rights. SECTION 1. Rights Enjoyed by All Citizens (Use of Highways). CALLANAN v. OILMAN. Court of Appeals of New York. 1887. 107 A^. Y. 360. Earl, J. The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any ob- struction of a street or encroachment thereon which interferes with such use is a public nuisance. But there are exceptions to the gen- eral rule born of necessity and justified by public convenience. An abutting owner engaged in building may temporarily encroach upon the street by the deposit of building materials. A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers, and the use of a street for public travel may be temporarily inter- fered with in a variety of other ways without the creation of what in law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be justified by necessity. It is not suf- ficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rights of the public who have interests in the streets which may not be sacrifi.ced or disre- garded. Whether an obstruction in the street is necessary and rea- sonable must generally be a question of fact to be determined upon the evidence relating thereto. A reference to a few cases will show what courts have said upon this subject. In Rex V. Russell, 6 East 427, where the defendant, a wagoner, was indicted for occupying one side of a public street before his warehouse for loading and unloading his wagons, the court said "that it should be fully understood that the defendant could not le- gally carry on any part of his business in the public street to the annoyance of the public; that the primary object of the street was for the free passage of the public, and anything which impeded that free passage without necessity was a nuisance ; that if the nature of the defendant's business was such as to require the loading and unloading of many more of his wagons than could conveniently be contained within his own private premises, he must either enlarge his premises or remove his business to some more convenient spot."^ ^Benjamin v. Storr, L. R, 9 C. P. 400 (1874). 1283 1284 CALLAXAN 1'. OILMAN. In Rex V. Cross, 3 Camp. 224, the defendant was indicted for allow- ing his coaches to remain an unreasonable time in a public street, and the court said : "Every unauthorized obstruction of a highway to the annoyance of the king's subjects is a nuisance. The king's highway is not to be used as a stable yard. * * * A stage coach may set down or take up passengers in the street, this being neces- sary for public convenience ; but it must be done in a reasonable time, and private premises must be provided for the coach to stand while waiting between one journey and the commencement of an- other." In Rex V. Jones, 3 Camp. 230, the defendant, a lumber merchant in London, was indicted for the obstruction of a part of a street in the hewing and sawing of logs, and the court said: "If an unreasonable time is occupied in delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house, the public must sub- mit to the inconvenience occasioned necessarily in repairing the house ; but if this inconvenience should be prolonged for an unrea- sonable time, the public have a right to complain, and the party may be indicted for a nuisance. The rule of law upon this subject is much neglected, and great advantages would arise from a strict, steady application of it. I cannot bring myself to doubt the guilt of this defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway with his lumber yard, and if the street be too narrow he must move to a more convenient place for carrying on his business."" In Commonzvealth v. Passmore, i S. & R. 217, the defendant, an auctioneer, was indicted for a nuisance in placing goods on the foot-way and carriage-way of one of the public streets of the city and suffering them to remain for the pur- pose of beiijg sold there, so as to render the passage less convenient, although not entirely to obstruct it, and the court said : "It is true necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute ; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at his pleasure. But, inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other materials may be placed in the street, provided it be done in the most convenient manner." On the same principle a merchant may ''Accord: Emerson v. Babcock, 66 Iowa 257 (1885), hay scales placed upon public street; Kerr v. F argue, 54 111. 482 (1870), and McCloughry v. Finnev, 37 La. Ann. 27 (1885), goods stored on sidewalk. ^Accord: Wood v. Mears, 12 Ind. 515 (1859) ; Vanolinda v. Lothrop, 21 Pick. 292 (Mass. 1838) ; Clark v. Frv. 8 Ohio St. 358 (1858) ; Palmer v. Sil- verthorn, 32 Pa. 65 (1858); Chicago v. Robbins, 2 Black 418 (U. S. 1862), p. 424, scmble, and this includes the right to deposit on the street for removal the earth excavated in such operations, Hunhausen v. Bond, 36 Wis. 29 (1874) ; see Piollet v. Simmers, 106 Pa. St. 95 (1884), where a barrel on wheels used by an abutting owner to whitewash his fence, was left over Sunday on CALLANAX f. OILMAN. I285 have his goods placed in the street for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the street for the purposes of selling them there, because there is no necessity for it.* * * * I can easily perceive that it is for the convenience and interest of an auctioneer to place his goods in the street because it saves the expense of storage. But there is_ no more necessity in his case than in that of a private merchant. It is equally in the power of the auctioneer and the merchant to procure ware- houses and places of deposit in proportion to the extent of their business." In The People v. Cnnmngham, i Denio, 524, the de- fendants were indicted for obstructing one of the streets in the city of Brooklyn, and the court said : "The fact that the defendants' business was lawful does not afford them a justification in annoying the public "in transacting it; it gives them no right to occupy the public highway so as to impede the free passage of it by the citizens generally.. The obstruction complained of is not of the temporary character which may be excused within the necessary qualifications referred to in the cases cited, but results from a systematic course of carrying on the defendants' business. It is said that this business cannot be carried on in any other manner at that place so advan- tageously either to individuals or the public. The answer to this is to be found in the observations of the court in Russell's Case (above cited). 'They must either enlarge their premises or remove their business to some more convenient spot.' Private interests must be made subservient to the general interest of the community."^ In Welsh V. IVilson, loi N. Y. 254, a case where the defendant ob- structed a sidewalk in the city of New York with skids a few min- utes while he was engaged in removing two large cases of mer- chandise from his store to a truck, in consequence of which the plaintiff claimed to have been injured while passing through the street, we said: "The defendant had the right to place the skids across the sidewalk temporarily for the purpose of removing the case of merchandise. Every one doing business along a street in a populous city must have such a right to be exercised in a reason- able manner so as not to unnecessarily encumber and obstruct the sidewalk." In Mathews v. Kelsey, 58 Me. 56, the court said: "As an incident to this right of transit, the public have a right to load and unload such vehicles (in the street or from the street) as they find the highway by the side of the traveled way. In Palmer v. Silverthorn, Z2 Pa. 65 (1858), it is held that abutting owners have the right to place such building material in the street irrespective of the necessity of so doing on the particular occasion, contra. Wood v. Meats, 12 Ind. 516 (1859). ^Accord: Lavery v. Hannigan, 20 Jones & S. 463 (N. Y. 1885). goods -displayed on part of sidewalk enclosed by awnings; State v. Laverack, 34 N. J. L. 201 (1870) : CommonwcaUh v. Rug files, 88 Mass. 588 (1863), fairs held in highwavs. in England a custom to hold such fairs is a good custom, EI- zvood V. Bullock, 13 L. J. Q. B. 330; Commomvealth v. Wentivorth, Brightly 318 (Pa. 1822); St. John v. Mayor, 3 Bo.sw. 483 (N. Y. 1858), booths and stalls for sale of goods placed on sidewalks, aliter where such stalls are so placed while a market house is undergoing repair, 5"^ John v. Mayor, 6 Duer 315 (N. Y. 1857). ''See State v. Chicago, M. & St. P. R. Co., 77 Iowa 442 (1889). 1286 CALLAXAX V. OILMAN. it convenient to use. But in this respect each individual is restrained by the rights of others. He must do his work in such careful and prudent manner as not to interfere unreasonably with the conve- nience of others."^ Now what are the facts of this case? Both the plaintiffs and the defendant were extensive retail and wholesale grocers having stores near to each other on the south side of Vesey street in the city of New York ; and a large portion of the plaintiffs' customers, in order to reach their store, were obliged to pass upon the sidewalk in front of the defendant's store. Goods were taken to and from the defendant's store by means of trucks loaded in the street. The trucks were placed in the street adjoining the sidewalk and then a bridge made of two skids planked over so as to make a plank-way three feet wide and fifteen feet long, with side pieces three and one- half inches high, was placed over the sidewalk with one end resting upon the stoop of the defendant's store and the other end upon a wooden horse outside of the sidewalk near the truck to be loaded. This bridge was elevated above the sidewalk at the inner end about twelve inches and at the outer end about twenty inches, thus en- tirely obstructing the sidewalk, and goods were conveyed over this bridge to and from the store. Persons wishing to pass upon the sidewalk in front of the store, when the bridge was in place, were obliged to step upon the stoop and go around that end of the bridge. The bridge was usually removed when not in use ; but there was luicontradicted evidence that it was sometimes permitted to remain in position, when not in use, for ten or fifteen minutes, and that it sometimes remained in position when in use one hour, one hour and a half and sometimes even two hours ; and the court found that the bridge thus remained in position across the sidewalk from four to five hours each business day between the hours of nine o'clock a. m., and five p. m., and that it obstructed the sidewalk the greater part of every business day. Such an extensive and continuous use of the sidewalk cannot be justified. It was a practical appropriation by the defendant of the sidewalk in front of his store to his private use in disregard of the public convenience. Even if in some sense such use was necessary to the convenient and profitable transaction of his business, and if the obstruction of the sidewalk was no more and even less than it would be by any other method of doing business, these circumstances do not justify the obstruction. If the defendant cannot transact his extensive business at that place without thus encroaching upon, obstructing and almost appropriating the side- walk during the business. hours of the day, he must either remove ''Accord: Haight v. Keokuk, 4 Towa 199 (1856) ; Halsev v. Rapid Tran- sit St. R. Co., 47 N. J. Eq. 380 (1890) ; Jochem v. Robinson, 66 Wis. 638 (1886), 72 Wis. 199 (1888), and see Denby v. IViller. 59 Wis. 240 (1884); Sikes v. Manchester, 59 Iowa 65 (1882); Judd v. Fargo, 107 Mass. 264 (1871), ve- hicles standing in street while being, or waiting to be, loaded or unloaded ; see Vanolinda v. Lothrop, 21 Pick. 292 (Mass. 1838). The length of time the goods or vehicles remain on the sidewalk or street and the fact that the highway is much or little frequented are important factors in determining whether the obstruction is reasonable, Jiidd v. Fargo, 107 Mass. 264 (1871). FRITZ r. HOBSON. I287 his business to some other place or enlarge his premises so as to accommodate it. It was incumbent upon the defendant to show, not only that the use he made of the sidewalk was necessary in his busi- ness, but also that it was reasonable in reference to the public con- venience. That it was unreasonable is too clear for dispute.'^ He might use the bridge to load or unload a single truck, and this he could do at intervals during the day, at no one time obstructing the street for any considerable length of time. But there is no authority and no rule of law which would warrant such an obstruction daily for hours, or even one hour continuously. The defendant was, there- fore, guilty of a public nuisance.* FRITZ V. HOBSON. Chancery Division, 1880. L. R. 1880, 14 Ch. Div. 542. This action brought to restrain an alleged nuisance committed by the defendant, and for damages. Fry, ]., after stating the nature of the relief claimed, and ob- serving that the trespasses proved, as distinguished from the nui- sance, were of the most trifling descriptions, and that he could only award the plaintiff one farthing damages in respect of them, con- tinued : — The serious part of the case arises out of the allegation of loss of custom to the plaintiff in his character of a dealer in articles of antiquity, old china, and so forth, and of a tailor. With regard to the business of a tailor there is no evidence of loss ; the other business I shall consider presently. The plaintiff puts his case in two ways. He says, first, the de- fendant has created a public nuisance, which has resulted in special or peculiar damage to me in consequence of the place where I re- side and the place where the nuisance has been committed being so near to each other ; and, secondly, I have a private right of entrance from the highway to my dwelling-house, and that private right the defendant has interfered with. Before I consider those rights separately, I must inquire whether the defendant's user of the roadway of Fetter Lane and the plaintiff's passage has been reasonable or unreasonable. The law with regard to the point appears to be easily gathered from one or 'As to the function of court and jury in determining whether the de- fendant's use of the highway is reasonable, compare Jochem v. Robinson 72 Wis. 199 (1888). ^Accord: Flynn v. Taylor, 127 N. Y. 596 (1891). The burden rests on the abuttmg owner to show that his use is reasonable, Jochem v. Robinson 66 Wis. 638 (1886) ; Graves v. Shattuck, 35 N. H. 257 (1857). The fact that 'the other owners make the same use of the highway is no justification if it be unreasonable, Commonivcalth V. Passmore, Jndd v. Fargo, 107 Mass 264 (1871), McCloughry v. Finney. Z7 La. Ann. 27 (1885). As to the power of a municipality to authorize such obstructions, see Chap- mwn^ V. Lincoln, 84 Nebr. 534 (1909), 25 L. R. A. (N. S.) 400, with exhaustive 1288 FRITZ V. HOBSON. two cases. In Rex v. Jones, 3 Camp. 230, Lord Ellenborough said : "So as to the repairing of a house — the pubhc must submit to the inconvenience occasioned necessarily in repairing the house ; but, if this inconvenience is prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nui- sance." Again, in Benjamin v. Storr, Law Rep. 9 C. P. 400, the question left by Air. Justice Honeyman to the jury was, p. 402, "whether or not the obstruction of the street was greater than was reasonable in point of time and manner, taking into consideration the interests of all parties, and without unnecessary inconvenience, telling them that they were not to consider solely what was conve- nient for the business of the defendants." The defendant has as- serted at the Bar an unqualified and absolute right to approach the area of the building operations which he was carrying on by the nearest road, to any extent, for any materials, for any time, and without regard to the plaintiff's convenience or inconvenience. Such a claim is, in my judgment, untenable. It appears to me to be the expression of the selfish and not of the social man, of the man who recollects his rights but forgets his obligations, and human life could not be carried on if such extreme rights were asserted and insisted on. The question I have to decide is whether the user of the road or the roads in question by the defendant was, having regard to all the circumstances of the case, reasonable. The cir- cumstances are undoubtedly peculiar. The block of building which the defendant had to erect could be approached from roads only by means of three passages — Crane Court, leading from Fleet Street: Fleiir-de-Lis Court, leading from the southern part of Fetter Lane: and that which has been called for convenience the plaintitl's pas- sage,^ leading directly from the northern part of the site of the new buildings into Fetter Lane. The last passage was undoubtedly the most convenient mode of access for the defendant to the site. It was the most convenient for several reasons. It was the shortest, and it also led to that portion of the site which the defendant used as a yard for the purpose of his building operations. Moreover, the operations which the defendant had to carry on were very consid- erable. The building contract was for nearly £6000. He had to re- move a very large quantity of old building materials and rubbish, the removal of which occupied from the 21st of May to the 9th of July. He had to carry in a very large quantity of new materials, and the building operations lasted for several months. LTnder these circumstances, it appears to me that to carry on thfe whole of the defendant's operations through the plaintiff's passage was not rea- sonable. I am unable to see why a large proportion of the old ma- terials might not have been carried down Crane Court, or why a much larger proportion might not have been carried down Fleiir- de-Lis Court, and the inconvenience necessarilv created bv carrying away rubbish of that character distributed over the -whole of the passages which gave access to the site. Further than that; it ap- * Upon which was the entrance to the plaintiff's shop and one of the, windows in which his wares were shown. FRITZ Z'. IIOBSON'. I289 pears to me that the defendant, having regard to the pecuHar dif- ficulties of the case, should have made some different arrangement as to the time during which his operations were carried on. In fact he carried them on during the busiest hours of the day, and took no pains to diminish the inconvenience by carrying them on early in the morning or late at night. What was the result to the plaintiff of the operations thus car- ried on by the defendant? Undoubtedly the passage by his house was for a long period of time practically devoted to the defendant's building operations. ,For exactly how many days it was unsafe to cross that passage I do not know, but certainly for months those operations went on, and it appears to me that they went on in such a manner as to render it exceedingly difficult, if not impossible, for persons coming up from Fleet Street on the eastern side of Fetter Lane, to obtain access to the plaintiff's premises, and the natural effect would be to drive away persons who might have become cus- tomers of the plaintiff, and to render the access to his house so dif- ficult that most persons would abandon passing along that side of the road. And there is some evidence that persons who were in the frequent habit of going to the plaintiff''s house as customers ceased to do so during a portion of the time in which these operations were going on. What then has been the result of these operations to the plain- tiff? I have come to the conclusion that the plaintiff* has proved that he has sustained considerable loss in his business as a dealer in old curiosities in consequence of the defendant's operations, and al- though it is very difficult to assess the amount of that loss, I have, sitting as a judge of fact, arrived at the conclusion that he has sus- tained loss to the extent of £60.- I shall direct the whole sum which I have mentioned, and which, as I have said, includes the damages sustained subsequent to the issue of the writ, be paid by the de- fendant to the plaintiff.^ "A part of the opinion is omitted holding that the plaintiff's damage was sufficiently special to him to give him a private right of action though the nuisance was public, and that the fact that the nuisance had been discon- tinued before decree did not oust the jurisdiction of equity once having ac- quired but the court might enter a decree for the payment of the damages sus- tained up to the time of said discontinuance. *In the following cases the defendant's use of the highway was held unreasonable as interfering with the rights of the abutting owner, Cohen v. New York, 113 N. Y. 532 (1889), storing a wagon in street in front of plaintiff's premises, Turner v. Holtsman, 54 Md. 148 (1880), stage coach kept standing where it blocked access to a camp meeting; Branahan v. Cincinnati Hotel Co., 39 Ohio St. 333 (1883), hackney coaches standing immediately in front of plaintiff's premises; see Graves v. Shattuck, 35 N. H. 257 (1857), frame building being moved through the streets of a town at the peril of in- juring the shade trees growing thereon. To allow a horse and carriage to stand in front of a house while the owner makes a business or social call is not an unreasonable interference with the public's right to the unobstructed use of the highway, Norristown V. Mayer, 67 Pa. 355 (1871), p. 367; but to stand one's wagons in the street, for the purpose of selling goods therefrom, is; Davis v. Bangor, 42 Maine 522 (1856), semble. But see State v. Edens, 85 N. Car. 522 (1881), holding that such a merely temporary use, unlike a permanent structure in the highway, is only a nuisance if it substantially 1290 LETTS Z'. KESSLER. SECTION 2. Acts Permitted in Order to Secure to Property Owner thv Freedom of Choice in Their Use Thereof. KNOWLES V. RICHARDSON. IModern Reports, 55 (1669). Error of a judgment in the common pleas in an action upon the case, for obstructing a prospect. Sympson. The stopping of a prospect is no nuisance, and consequently no action on the case will lie for it. Aldred's case, Rep. 9, is express, that for obstructing a prospect, being matter of delight only, and not of necessity, an action will not lie. Twisden. Why may not I build up a wall, that another man may not look into my yard? Prospects may be stopped, so you do not darken the light. Judgrnent nisi, etc. LETTS V. KESSLER. Supreme Court of Ohio, 1896. 54 Ohio St. 73. Petition to restrain a high board fence which the defendant was building on his land. The demurrer was overruled. The plaintiff owned and occupied certain premises which he used as a boarding house ; defendant owned and occupied premises adjoining those of the plaintiff; between the two houses is a drive- way and an open space about twenty feet wide. The plaintiff' and defendant had a litigation on account of the defendant having at- tached a shed roof to the plaintiff's building without her consent. After the trial of the litigation the defendant removed the shed roof and built up against the plaintiff's house a tight board fence eighty-six feet long, reaching from two feet from the ground up to the eaves of the plaintiff's building, completely covering up the win- dows of all the rooms on that side of the house and shutting out the light and air from them. The defendant nailed to a board on this fence a shed roof forty feet long, under which he piled lumber. The structure was erected from motives of unmixed malice toward said plaintiff and for no useful or ornamental purpose except said shed interferes with the passing of travellers thereon, Craves v. Shattuck, 35 N. H. 257 (1857), and Sikes v. Manchester, 59 Iowa 65 (1882), doubting whether farmer's wagons left in the street and occupying half thereof while the horses were being fed would be an unlawful obstruction, since "it would be well for the towns and villages of the state to have their streets freely used for such purposes by farmers who are trading there." That the partic- ular use is one to which they are ordinarily put in that and similar places is regarded as tending to show it to be reasonable. Graves v. Shattuck, 35 N. H. 2S7 {\^i7),Sikes V.Manchester, S9lowii6S {\^m. As to the use of vehicles, such as automobiles, especially heavy omni- buses, difficult to control and likely to skid in wet weather, compare Wing v. London General Omnibus Co., L. R. 1909, 2 K. B. 652, pp. 666-667, and Parker v. London General Omnihus Co.. 26 T. L. R. 18 (1909), with Philpot V. Fifth Ave. Coach Co., 142 App. Div. 811 (N. Y. 1911), and Walton v. Van- guard Co., 25 T. L. R. 14 (1908). LETTS Z'. KESSLER. I2gi roof and the wall below the shed roof, which may serve some use- ful purpose of the defendant in the use of his property, by protect- ing his lumber pile thereunder. Decree: that defendant be enjoined from proceeding further with the erection of the fence ; and that the defendant take down all of said fence and scantling projecting above the roof of said shed, and all the remainder of said fence outside of and beyond said shed. BuRKET, J. The only question in this case arises upon the following findings of fact by the circuit court: "Said structure was erected upon the land of the defendant and belonged to him. The structure was erected by said defendant from motives of unmixed malice toward said plaintiff, and for no useful or ornamental purposes of the property of said defendant." It is not claimed that the person of the plaintiff" was interfered with in this case, so that we have for consideration only the rights of property. The fence complained of is upon the land of the defendant and belongs to him. Plaintiff fails to aver, and the court fails to find, that she has any right to, or upon, the lot of defendant below by contract, statute, or any other way known to the law for acquiring a right to, in, or upon lands, unless such right may be acquired by, and transferred to her, by means of the aforesaid "motives of un- mixed malice." This is a manner of acquiring on the one hand, and of transferring on the other, a right to property unknown to the law. But it is urged in her behalf, that even if she had no right of property, and even if he was the owner of the lot, that he could not use his own land for the purpose of erecting structures thereon which subserve no useful or ornamental purpose, and are erected through motives of unmixed malice toward his adjoining neighbor. It is and must be conceded that he might, by erecting a build- ing on his lot, shut off her light and air to exactly the same ex- tent as is done by this fence, and that in such a case she would be without right and without remedy, even though done with the same feelings of malice as induced him to erect the fence; thus making his acts lawful when the malice is seasoned with profit, or some show of profit to himself, and unlawful when his malice is unmixed with profit, the injury or inconvenience to her, meanwhile, remain- ing the same in both cases. If through feelings of malice he desires to shut the light and air from her windows, it is nothing to her whether he makes a profit or loss thereby. Her injury is no_ greater and no less in the one case than in the other. As to her it is the effect of the act, and not the motive. In effect he has the right to shut off the light and air from her windows by a building- on his own premises, and she is not in effect concerned in the means by which such effect is produced, whether by a building or other structure ; nor is she concerned as to the mo- tive, nor as to whether he makes or loses by the operation. In the one case she might have a strong suspicion of his malice, while in the othef such suspicion would be ripened into a certainty. But 1292 LETTS Z: KESSLER, this is nothing to her as affecting a property right. As long as he keeps on his own property, and causes an effect on her property which he has a right to cause, she has no legal right to complain as to the manner in which the effect is produced, and to permit her to do so, would not be enforcing a right of property, but a rule of morals. It would be controlling and directing his moral conduct by a suit in equity, by an injunction. To permit a man to cause, a certain injurious effect upon the premises of his neighbor by the erection of a structure on his own premises if such structure is beneficial or ornamental, and to pro- hibit him from causing the same effect in case the structure is neither beneficial nor ornamental, but erected from motives of pure malice, is not protecting a legal right, but is controlling his moral conduct. In this state a man is free to direct his moral conduct as he pleases, in so far as he is not restrained by statute. But it is said that such acts are offensive to the principles of equity. Not so. There is no conflict between law and equity in our practice, and what a man may lawfully do cannot be prohibited as inequitable. It may be immoral, and shock our notions of fair- ness, but what the law permits, equity tolerates. It would be much more inequitable and intolerable to allow a man's neighbors to question his motives every time that he should undertake to erect a structure upon his own premises, and drag him before a court of equity to ascertain whether he is about to erect the structure for ornament or profit, or through motives of unmixed malice. The case is not like annoying a neighbor by means of causing smoke, gas, noisome smells, or noises to enter his premises, there- by causing injury. In such cases something is produced on one's own premises and conveyed to the premises of another ; but in this case nothing is sent, but the air and light are withheld. A man may be compelled to keep his gas, smoke, odors and noise at home, but he cannot be compelled to send his air and light abroad. Mullen V. Strieker, 19 Ohio St. 135. If smoke, gas, offensive odors, or noise pass from one's own premises to or upon the premises of another to his injury, an ac- tion will lie therefor, even though the smoke, gas, odor or noise should be caused by the lawful business operations of defendant and with the best of motives. Broom's Legal Maxims, 372. But it is strongly urged by counsel for defendant in error, that the maxim, "Enjoy your own property in such a manner as not to injure that of another person," applies in such cases as this, and that as it must be conceded that the fence in question is an injury to the property of defendant in error, that his acts are in conflict with the above maxim. At first blush this would seem to be so, but a careful con- sideration shows the contrary. The maxim is a very old one, and states the law too broadly. In this case, for instance, it is con- ceded that the plaintiff in error had the right to enjoy his property by erecting a house so as to do the same injury which was done by the fence, and that while that would be an injury to the property; BARGER V. BARRINGER. 1 293 of defendant in error, she would be without remedy, and his act in erecting such house would not be regarded as violating the maxim. In Jeffries v. Williams, 5 Exch. 797, it was claimed, and in Railroad Company v. Bingham, 29 Ohio St. 369, it was held, that the true and legal meaning of the maxim is, "So use your own prop- erty as not to injure the rights of another." Boynton, J., in that case says : "Where no right has been invaded, although one may have injured another, no liability has been incurred. Any other rule would be manifestly wrong." The maxim should be limited to causing injury to the rights of another, rather than to the property of another, because for an injury to the rights of another there is always a remedy, but there may be injuries to the property of an- other for which there is no remedy, as in draining a spring or well, or cutting oif light and air or a pleasant view by the erection of buildings, and many other cases which may be cited. Thus limiting the maxim to the rights of the defendant in er- ror, it is plain that the acts of plaintiff in error in the use which he made of his property did not injure any legal right of hers, and that therefore what he did, was not in violation of such maxim. Judgment reversed.^ BARGER V. BARRINGER. Supreme Court of North Carolina, 1909. .151 N. Car. 433. Brown, J. The plaintiff's evidence in this case tends to prove that the premises of plaintiff and defendant adjoin, and that they mutually constructed a 4-foot wire fence on the division line ; that thereafter the plaintiff, as chief of police of the town of West Hickory, was compelled by his duty to report the filthy condition of defendant's stables ; and from pure, unadulterated vengeance and malice the defendant erected a very rude, unsightly board fence, 8 feet, 6 inches high on his side of the division fence, and within 4 feet of plaintiff's windows, which cuts off plaintiff's view, air and light; so much so that j)laintiff testifies he cannot see'how to shave by sunlight since the fence was built. His Honor's ruHng was based upon what we admit to be the generally received view of the com- mon law of England ; that the erection of a fence upon one's own land is not actionable injury to one's neighbor, although he may be ^Accord: Lord Penzance in Capitol and Counties Bank v. Henty, L. R. 7 A. C. 741 (1882), p. 766, semblc: Ciller v. IVest, 162 Ind. 17 (1903); Bordeaux v. Greene, 22 Mont. 254 (1898) ; Brostrom v. Lauppe, 179 Mass. 315 (1901); Mahan v. Brown, 13 Wend. 261 (N. Y. 1835), where, however, it was assumed that the plaintiff might acquire an easement for light and air over the defendant's adjoining land unless the latter shut off his windows; Pickard v'. Collins, 23 Barb. 444 (N. Y. 1856) ; Lew v. Brothers, 4 Misc. 48 (N. Y. 1893) ; Koblegard v. Hale, 60 W. Va. 27 (1906) ; Metzger v. Hach- rein, 107 Wis. 267 (1900), and see Lapere v. Luckey, 23 Kans. 534 (1880): TriMett V. Jackson, 5 Kans. App. 777 (1897); Guest v. Reynolds, 68 Til. 478 (1873); Honsel v. Comnt, 12 111. App. 259 (1882). and compare Shell v. Kemmerer, 13 Phila. 502 (Pa. 1877). 1294 BARGF.R 1'. DARRIXGER. deprived of light and air tiiereby, and the act may be dictated by motives of ill-will. Counsel for plaintiff does not deny the general proposition that one has a right to improve his property as he sees fit, and that resultant injury would be damnum absque injuria. But it is contended that if one in the use of his property is ac- tuated solely by a malicious purpose to injure his neighbor, with no benefit accruing to himself, he will not be permitted to use his property for such an unworthy purpose. It must be admitted that this proposition embodies good morals, and we think it is supported by recognized authority and well-considered precedents. We are therefore disposed to follow those courts which, in this respect, teach that the principle of the common law, above stated, should not be held to authorize the creation and maintenance of a nuisance for the sole purpose of gratifying a most ignoble passion. There are respectable authorities in this country which support the view that malice makes that actionable which would otherwise not be so, and the doctrine has been held to be well founded, both in law and morals, that "a fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor's win- dow, is a nuisance." 12 Am. & Eng. Enc. Law, 2d ed. p. 1058, and cases cited in note ; i Cyc. Law & Proc. p. 789. This question came before the Supreme Court of Michigan in 1888, and the court was equally divided. An elaborate and well- reasoned opinion was delivered by Justice Morse (Burke v. Smith, 69 Mich. 383), from which we cannot do better than quote at length: The learned justice says: It is argued "that, while it is true that when one pursues a strictly legal right, his motives are im- material, yet no man has a right to build and maintain an entirely useless structure for the sole purpose of injuring his neighbor. The argument has force, and appears irresistible in the light of the moral law that ought to govern all human action. And the civil law. coming close to the moral law, declares that 'he who, in making a new work upon his own estate, uses his right without trespassing, either against any law, custom, title, or possession which may subject him to any service toward his neighbors, is not answerable for the damages which they may chance to -sustain thereby, unless it be that he made that change merely with a view to hurt others, without advantage to himself.' Thus the civil law recognizes the moral law, and does not permit the owner of land to do an act upon his own premises for the express purpose of injuring his neighbor, where the act brings no profit or advantage to himself. The law fur- nishes redress, because the injury is malicious and unjustifiable. The moral law imposes upon every man the duty of doing unto others as he would that they should do unto him ; and the com- mon law ought to, and in my opinion does, require him to so use his own privileges and property as not to injure the rights of others maliciously and without necessity. It is true that he can use his own property, if for his own benefit or advantage, in many cases, to the injury of his neighbor; and such neighbor has no redress, because the owner of the property is exercising a legal right whiciij BARGER V. BARRINGER. I295 infringes on no legal right of the other. Therefore, and under this principle, the defendant might have erected a building for use- ful or ornamental purposes, and shut out the light and air from complainant's windows, but when he erected these 'screens' or 'obscurers' for no useful pr ornamental purpose, but out of pure malice against his neighbor, it seems to me a different principle must prevail. I do not think the common law permits a man to be de- prived of water, air, or light for the mere gratification of malice. No one has an exclusive property in any of these elements, except as the same may exist or be confined entirely on his own premises."^ The same principle has been applied by other courts where the owner of land upon which there is an underground spring of water attempts to cut off the underground flow from his neighbor. It is held generally that any person might rightfully appropriate the whole of the water from the spring on his own land, or of water which percolates through it, without forming a well-defined stream. Hale, Torts, p. 425 ; Roath v. Dnscoll, 20 Conn. 533. Nevertheless, there are able courts which hold that if such appropriation is mali- ciously done to injure a neighbor, it is actionable. Hale, p. 426; Wheatley v. Baugh, 25 Pa. St. 528, and cases cited. We fail to see why this principle should not apply with equal force to light and air, especially in a state where no prescriptive rights can be acquired in windows. Justice Morse in his admirable opinion already cited, asks this pertinent question : "If a man has no right to dig a hole upon his premises, not for any benefit to himself or his premises, but for the express purpose of destroying his neighbor's spring, why can he'be permitted to shut out air and light from his neigh- bor's windows maliciously, and without profit or benefit to him- self?" Light and. air are as much a necessity as water, and all are the common heritage of mankind. While, for legitimate purposes, a person's rights in them may sometimes be curtailed without con- sulting his comfort or convenience, the common welfare of all for- bids that this should be needlessly permitted in order to gratify one of the basest and most degrading passions that sometimes takes possession of the human heart. The law would be untrue to its soundest principles if it declared that the wanton and needless in- fliction of injury can ever be a legal right. Instead of saying that malice will not make a lawful act unlawful, it is much more con- sistent with elementary principles of right and wrong to say that wilful and wanton damage done to another is actionable unless ^"This opinion was approved by a unanimous court, the personnel of which had been changed in 1890, in the case of Flaherty v. Moran, 81 Mich. 52, in which it was held that a fence erected maliciously, and with no other purpose than to shut out light and air from a neighbor's windows, is a nuisance. This ruling was again unanimously approved in 1893 by the Michigan court, although its membership had again been changed, in Kirk- wood V. Finegan, 95 Mich. 543, and again in Kuzniak v. Kosmhiski, 107 Mich. 444. In 1896 the same court, again differently constituted, unani- mously followed and approved those precedents. Peck v. Roe, 110 Mich. 52; Sankcy v. 5"^ Mary's Female Academy, 8 Mont. 267; Havens v. Klein, 49 How. Pr. 95 (N. Y.)." 1296 BARGER V. BARRINGER. there is some just or legal cause or excuse for it. An eminent English judge has declared this to be a general rule of English law in these words : "At common law there was a cause of action whenever one person did damage to another wilfully and intention- ally, and without just excuse." Lord Justice Brown, in Skinner v. Sheiv, (1893) I Ch. 422.- In the administration of the criminal law, the motive with whicJi an act is committed has a marked effect upon the guilt of the accused, and in determining the degrees of crime. Why not, for the same reasons, let it become a potent element in determining civil rights, so as to deter malicious persons from the infliction of wanton injury upon their fellow men? This involves no harm- ful restriction upon the right of ownership of property. There are many limitations placed by the common law upon such rights, and we see no difficulty in principle in limiting an owner's rights so far that he shall not be permitted to use his land in a particular way with no other purpose than to damage his neighbor. This has been done without injurious effect, in the matter of so-called "spite fences," by some of the most enlightened states of this Union, which have remedied by legislation the errors of the courts in failing to recognize this "fundamental doctrine of the rights of man," when dealing with this kind of injury. In cases brought under such stat- utes, the courts have declared that malevolence must be the dom- inant motive, without which the fence would not have been built, in order to bring the case within the statute. 12 Am. & Eng. Enc. Law, p. 1058, and cases cited; Lord v. Langdon, 91 Me. 221; Rideout v. Knox, 148 Mass. 368; Smith v. Morse, 148 Mass. 407; Hunt V. Coggin, 66 N. H. 140.^ If the right to use one's property, solely for malicious purposes, in a manner which would be lawful for other ends, is a legal right, and an incident to the legal exer- ""Mr. Justice Holmes, delivering the opinion of the Supreme Court of the United States, stated the same rule more fully: 'It has been consid- ered that prima facie the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification, if the defendant is to_ escape. * * » If this is the correct mode of approach, it is obvious that justifications may vary in extent according to the principles of policy upon which they are founded; and that while some, for instance, at common law, those affecting the use of land, are absolute, * * * others may depend upon the end for which the act is done.' Aikens v. Wisconsin, 195 U. S. 194; Pollock, Torts, 7th ed. 319. See also, 22 Law Quarterly Rev. (1906) p. 118." ^The statutes of California, Maine, Massachusetts and New Hampshire declare "fences or similar structures" exceeding a. certain height "enclosed or maintained with the malicious purpose of annoying the owner or occu- pant of adjacent premises" to be private nuisances. Such statutes do not apply to buildings other than those on or near the division line between the two premises, Ingwersen v. Barry, 118 Cal. 342 (1897) ; Brostrom v. Lauppe. 179 Mass. 315 (1901). In Connecticut and Washington it is provided that injunctions may be granted to retain the "malicious erection or maintenance of any structure intended to spite, injure or annoy an adjoining proprietor", Gollaqher v. Dodge. 48 Conn. 387 (1880); Karasck v. Peier. 22 Wash. 419 (1900). While in Vermont, the erection or maintenance of "an unnecessary fence or other structure" for such purpose is forbidden under penalty of a fine, and the selectmen are empowered to remove it after notice to the evictor and his failure to remove it himself. Holmes v. Fuller, 68 Vt. 207 (1896). BARGER V. BARRIXGER. I297 cise of such property which the courts ought not and cannot right- fully deny, how can such right be taken away by legislation, as legislatures, no more than courts, have power of confiscation? Yet these statutes have been upheld by the courts and approved by the people of those states wherein they have been enacted. The truth is that the right to use one's property for the sole purpose of injuring others is not one of the immediate and indestructible rights of ownership, and such acts may and ought to be prohibited by courts without the aid of legislation/ We are aware that this court has recognized the general prin- ciple that malice, disconnected with the infringement of a legal right, is not actionable, as in Richardson v. Wilmington & W. R. Co., 126 N. Car. lOO, where the master discharged his servant, there being no fixed term of employment. It was properly held, the present .chief justice speaking for the court, that as either party had the legal right to terminate the service at will, the motive could not be inquired into. We also adhere to the law as de- clared in Lindsay v. First Nat. Bank, 115 N. Car. 553, that in this country the easement of light and air cannot be acquired by prescrip- tion,^ upon which ground this court refused to enjoin the erection of a building, one wall of which excluded the light from plaintiff's photograph gallery. There was no allegation that the obstruction was useless and erected for malicious purposes solely. The differ- ence between these cases and this is apparent upon even a cursory reading. We are not aware that this court has ever extended the rights of ownership in property so far as to authorize an owner to use it for the express purpose of creating a nuisance and no other; and, if it had, in the light of further investigation, we should feel impelled to hold the case not well decided. There are many annoyances arising from legitimate improvements and businesses which those living near must endure, but no one should be compelled by law to submit to a nuisance created and continued for no useful end, but solely to" inflict upon him humiliation, as well as physical pain. The ancient maxim of the common law. Sic ntere tuo ut alieniiin non lacdas, is not founded in any human statute, but in that sentiment expressed by Him who taught good will toward men, and said, "Love thy neighbor as thyself." Freely translated, it enjoins that every person, in the use of his own property, should avoid injury to his neighbor as much as possible. No one ought to have the legal right to make a malicious use of his property for no benefit to him- * See Horan v. Byrnes, 72 N. H. 93 (1903). accord. Such acts have been held constitutional in Rideout v. Knox, 148 Mass. 368 (1889), and Karasek V. Pcicr, 22 Mont. 419 (1900), though it was intimated that an act prohib- iting an owner erecting a store or house or other useful structure, though its erection was inspired by a desire to injure an adjoining proprietor; sec Jones v. Williams, 56 Wash. 588 (1910). The reasoning in Huber v. Mcrkel, 117 Wis. 355 (1903), would require that such statutes should be held uncon- stitutional in Wisconsin. '-Accord: Guest v. Reynolds, 68 111. 478 (1873); Keats v. Hugo, 115 -Mass. 204 (1880), semble, and cases cited therein: Rcnnxson's Appeal, 94 Pa. 147 (1880) ; Parker v. Foote, 19 Wend. 309 (N. Y. 1838). 1298 BARGER v. BARRINGER, self, but merely to injure his fellow man. To hold otherwise makes the law an engine of oppression with which to destroy the peace and comfort of a neighbor, as well as to damage his property for no use- ful purpose, but solely to gratify a wicked and debasing pa^ion. The doctrine of private nuisances is founded upon this humane and ven- erable maxim of the law. If it can be- successfully invoked to prevent the keeping of stables and hogpens so near one's neighbor as to cause discomfort, why cannot he whom it is sought to needlessly and maliciously deprive of air and sunlight also seek the aegis of its protection? The right thus to injure one's neighbor with impu- nity cannot long continue to exist anywhere in an enlightened coun- try where God is acknowledged and the Golden Rule is taught. On this subject, if need be, we will do better to follow the pandects of the heathen Roman, whose jurists have inculcated a doctrine more consistent with the teachings of Him whom they permitted to be crucified, than to be governed by the principles of the common law as expounded by some Christian courts and text writers. The judgment of nonsuit is set aside, and the cause remanded, to be proceeded with in accordance with the principles laid down in this opinion.® New trial. Hoke, J., dissenting. We are all, I trust striving, at times somewhat blindly, to attain to the perfect righteousness of the great Teacher as well as Saviour of men, but in the present stage of our development, and with our limited, human ken, it has been found best to confine litigation in our civil courts to the enforce- ment of rights, and the redress of wrongs growing out of an inva- sion of those rights, done or threatened, and not allow causes of action to be based upon motive alone. For here we enter upon the domain of taste and temperament, involving questions entirely too complex, varied, and at times fanciful for satisfactory inquiry and determination by municipal courts. In a case so near the border line as to divide this court on a fundamental question as to rights of property, it is well to recur to the facts. The plaintiff, a chief of police, and owner of a house and lot, on complaint made, has caused the defendant to remove his stable from an adjoining piece of property. The defendant, smarting under a. sense of defeat, makes ° Accord: Smith v. Speed, 11 Okla. 95 (1901), proceeding to punish as contempt the erection of a "spite fence" restrained by a District Court; and see the charge of the trial court in Haverstick v. Sipe, 3i Pa. 368 (1859). In Mots V. Tierney, 13 N. Mex. 363 (1906), the court refused to express any opinion on the point, holding that the fence or screen in question was erected for a legitimate purpose, to protect the privacy of his premises, as to this see accord: McCorkle v. Driskcll, 60 S. W. 172 (Tenn. 1900) ; Shell v. Kemmerer, 13 Phila. 502 (Pa. 1879) ; Haverstick v. Sipe, 2,Z Pa. 368 (1859), s^mble, and compare Burke v. Smith with Flaherty v. Moran, 81 Mich. 52. For the law of France, Germany and Switzerland and the civil law on the subject, see "Motive as an Element in Torts in the Common and in the Civil Law" by F. P. Walton, Esq., of McGill University, Montreal, 22 Harv. L. R. 501 (1909), a very valuable discussion on the whole subject indicted in the title of the article, especially p. 502, citing Doerr v. Keller, Court of Colmar, Dalloz, 1856, 2, 9; Sirey, 1904, 2, 217. HORAN V. BYRNES. 1299 some hasty and ill-considered expressions, erects a^fence on his own land, and in the protection of his own property. He is now brought into court on the charge that the fence has been constructed from malicious motives ; that it is too high ; the planks are rough and undressed; and the house of plaintiff, presumably one room of it, has been rendered so dark that he cannot see how to shave. If plaintiff can succeed in this, the next grievance will very likely be found in the shape of the roof or the color of the paint, and the de- fendant, who had supposed that he was the owner of a piece of property, no doubt descended to him from his fathers, will find that in the evolution of things modern he is only an occupant, holding subject to the capricious whims of some supersensitive and overly aesthetic but influential neighbor. I am of opinion that no cause of action has been stated in the complaint or in the evidence, and that the judgment of nonsuit should be sustained. Manning, J., concurs in the dissenting opinion. HORAN V. BYRNES. Supreme Court of New Hampshire, 1903. 72 N. H. 93. Case, under sections 28 and 29, chapter 143, Public Statutes, for maintaining a structure in the nature of a fence, in violation of the statute. / Upon the trial, defendant moved for a nonsuit, on the ground that the statute is unconstitutional. The motion was denied, and defendant excepted. Parsons, C. J. The act forbids the use by one landowner of his land for the unnecessary erection of a fence exceeding five feet in height, when the purpose of such unnecessary height is the annoy- ance of the adjoining owner or occupant, if such unnecessary height injures the adjoining owner in his comfort or the enjoyment of his estate. The claim of the defendant in support of his motion for a nonsuit, that the statute is unconstitutional, raises the question whether the statutory prohibition is an interference with the defend- ant's "natural, essential, and inherent" right of "acquiring, pos- sessing, and protecting property," or deprives him of that protection in its enjoyment, which is the right of "every member of the com- munity." Bill of Rights, arts. 2, 12. "While one may in general put his property to any use he pleases not in itself unlawful, his neighbor has the same right to the undisturbed enjoyment of his adjoining property. * * * What standard does the law provide ? * * * Whatever may be the law in other jurisdictions, it must be regarded as settled in this state that the test is the reasonableness or unreasonableness of the business in question under all the circumstances." Ladd v. Brick Co., 68 N. H. 185, 186. "The common-law right of the ownership of land, in its relationship to the control of surface water, as un- 1300 HORAX Z\ BYRNES. derstood by the courts of this state for many years, does not sanc- tion or authorize practical injustice to one landowner by the arbi- trary and unreasonable exercise of the right of dominion by an- other" (Franklin v. Diirgee, yi N. H. 186), but makes the test of 5.he right the reasonableness of the use under all the circumstances. In such case the purpose of the use, whether understood by the iandowner to be necessary or useful to himself, or merely intended to harm another, may be decisive upon the question of right. It cannot be justly contended that a purely malicious use is a reason- able use. The question of reasonableness depends upon all the cir- cumstances — the advantage and profit to one of the uses attacked, and the unavoidable injury to the other. Where the only advantage to one is the pleasure of injuring another, there remains no foun- dation upon which it can be determined that the disturbance of the other in the lawful enjoyment of his estate is reasonable or neces- sary. There is no sound ground upon which a distinction can be made against the plaintiff's right to use his land for the enjoyment of tha air and light which naturally come upon it, in favor of his right to use it to enjoy the waters which naturally flow upon or under it, except the fact that the use of land for buildings necessa- rily cuts off air and light from the adjoining estate. The fact that the improvement of real estate in this way for a useful purpose, uni- versally conceded to be reasonable, may affect the adjoining owner's enjoyment of his estate to the same extent as a like act done solely to injure the other, is not a sufficient reason for distinguishing the right to build upon the surface from the right to dig below it or to control the surface itself. Jurisdictions which reject the doctrine of reasonable necessity, reasonable care, and reasonable use, which "prevail in this state in a liberal form, on a broad basis of general principle" {Haley v. Colcord, 59 N. H. 7), as applied to the own- ership of real estate, in favor of the principle of absolute dominion, may properly consider a malicious motive immaterial upon the rightfulness of a particular use ; but in this state, to do so would be to reject the principle announced in Bassett v. Company, 43 N. H. 569, and repeatedly reaffirmed during the last forty years. But the landowner's right in the enjoyment of his estate being that of reasonable use merely, there attaches at once to each the correlative right not to be disturbed by the malicious, and hence unreasonable, use made by another. To hold that a right is infringed because, by the noxious use made by another, the air coming upon a landowner's premises is made more or less injurious, and to deny the invasion of a right by an unreasonable use which shuts off air and light entirely, is an attempt to bound a right inherent and es- sential to the common enjoyment of property by the limitations of an ancient form of action. An unreasonable use of one estate may constitute a nuisance by its diminution of the right of enjoyment of another, without furnishing all the elements necessary to maintain an action qnare clausum f regit. As, therefore, the statute does not deprive the plaintiff of any right to a reasonable use of his land, but only prohibits an unnecessary, unreasonable use, it does not GALLAGHER f. DODGE. I3OI deprive him of any property right. Hence it is not necessary to in- f|uire whether, as an invasion of property rights, the Hmitation of the statute is one which might properly be made for the gen- eral good. ■f- ^ ^ ^ ^ The objection based upon the unconstitutionality of the statute is not sustained, and the exception to the denial of the motions for a nonsuit and to direct a verdict upon that ground is overruled. GALLAGHER r. DODGE. Supreme Court of Errors, Connecticut, 1880. 48 Conn. 387. LooMis, J. This is a petition for an injunction under the stat- ute (Gen. Statutes, p. 477, sec. 4) which provides that "an injunc- tion may be granted against the malicious erection by an owner or lessee of land of any structure upon it intended to annoy and injure any proprietor of adjacent land in respect to his use or disposition of the same." The structure which it is sought to enjoin the defendants against erecting, is a show-case in front of their store and upon their own premises, but to be so placed as to obstruct a side window in the plaintiff's store, which store projects several feet beyond that oc- cupied by the defendants, and thus has space for a side window looking out u-pon the platform constructed from the front of the defendants' store to the street line. This side window is upon the line between the premises of the two parties, and serves the occu- pant of the plaintiff's store both for light and for the display of his goods. It is found that the object of the defendants in procuring the show-case was two-fold — first, to display their own goods to the best advantage ; and second, to prevent the public from seeing the goods of the occupant of the plaintiff's store through his side win- dow. It was the right of the defendants, and the exercise of the right could not be regarded as unreasonable, to occupy the space between the front of their store and the street line in the way most ad- vantageous to their business. They were under no obligation to consult the interests of an adjoining proprietor. So far as he was availing himself of the open space to secure to himself more light by a window looking out upon it, or an opportunity to display his goods by exposing them in the window, he was availing himself of an opportunity that he held, and must have known that he held, l)y mere sufferance, for the defendants' store could at any time have been built out in front up to the street line, and so as com- pletely to darken his side window, with no invasion of his rights and no ground of complaint on his part. If possibly a buildingline established by the city would have prevented them from building out to the street line, the mere fact that the plaintiff's building was erected before the building line was established was one that gave 1302 GALLAGHER Z'. DODGE. him no rights against the defendants as to the open space in front of their premises. What they might have done so effectually by build- ing out over this space they had an equal right to do in any other mode no more injurious to the adjoining proprietor. We cannot see why they might not reasonably do it in the mode which they adopted. But it is claimed that the whole character of the act as to its legality is changed by the fact that an element of malice went into it. And this brings us to the difficult question where the line shall be drawn between structures that are useful and proper in them- selves, but into the erection of which a subordinate malicious motive enters, and those where the malicious intent is the leading feature of the act, and the possible usefulness of the structure a mere inci- dent. The only case in which this statute has come up for construc- tion is that of Harbison v. JVhite, 46 Conn. 106, in which it was held that a coarse structure erected for the malicious purpose of darken- ing the windows of a neighbor fell within the intent of 'the statute, although it might serve a useful purpose in screening the defendants' premises from observation. Here the malicious purpose was alto- gether the predominant one, and the usefulness of the structure very limited and merely incidental. In the present case these conditions are reversed, and it is found that the primary purpose was the rea- sonable and proper one of displaying the defendants' goods, while the malicious part of the motive was secondary. While we are not prepared to say that this relation of the two motives should always determine the court against the granting of an injunction, and the opposite relation in favor of granting one, yet we regard the pre- dominance of the malicious motive as generally essential to a case in which the court will think itself justified in interfering. The statute speaks of the structure intended as a "malicious erection." and one the intent of which is "to annoy and injure any proprietor of adjacent land." We think we do not go too far in saying that this malicious intent must be so predominating as a motive as to give character to the structure.^ It must be so manifest and positive that the real usefulness of the structure will be as manifestly subordinate and incidental. The law regards with jealousy all attempts to limit the use to which a man may put his own property. This right to use is always subject to the wholesome limitation of the common law, that every one must so use his own property as not to injure another's, and the person who violates this rule is liable to the per- son injured whether he has any malicious intent or not ; but here the new principle is introduced, that the landowner may erect no structure on his own premises, however lawful it would otherwise ^ See Kirkwood v. Finegan, 95 Mich. 543 (1893), where it was held that the character and style of the building was such as to show "the motive which prompted its erection"; and Park. J., in Mctz v. Tierney, 13 N. Mex. 363 (1896), "It may be that a structure of this kind" (a rude screen put up to shut off the defendant's windows from observation) "might under some cir- cumstances, be so grossly unsuited or disproportionate to the uses claimed for it as to amount to proof of malice." GALLAGHER 7'. DODGE. I3O3 be, if he does it maliciously, with intent to annoy his neighbor. The common law has always regarded the existence of malice in the exercise or pursuit of one's legal rights as of no consequence; just as its absence is of no consequence in the cases of injury caused by wrongful acts. The inquiry into and adjudication upon a_ man's motives has always been regarded as beyond the domain of civil ju- risprudence, which resorts to presumptions of malice from a party's acts instead of inquiring into the real inner workings of his mind. When, therefore, we inquire how far a man was actuated by malice in erecting a structure upon his own land, we are inquiring after something that it will always be very difficult to ascertain, unless we adopt, as in other cases where the courts inquire after malice, a pre- sumption of malice from the act done. And in this view of the matter we think no rule can be laid down that is on the whole more easy of application, than that the structure intended by the statute must be one which from its character, or location, or use, must strike an ordinary beholder as manifestly erected with a leading purpose to annoy the adjoining owner or occupant in his use of his premises. If the defendant has erected a house or block on his own land, so close to the dividing line between his lot and his neighbor's as to darken the side windows of his neighbor's house, no one would say that he had done a thing that was mainly intended to annoy his neighbor, and yet in his heart there may have been a malicious de- light at the damage he was doing his neighbor. In such a case the obvious propriety of such an erection should determine the ques- tion in favor of the party making it, without putting him under oath as to his motives. In the same way, if a landowner should locate a privy or pig-sty directly on his line, and as close as possible to the near parlor windows of his neighbor,- or should erect a rough screen of boards before his windows to darken them, the very char- acter and location of the structures would strike every beholder as decisive evidence of an intent to annoy, and of this intent as an entirely predominant one ; and a court might very properly so deter- mine without leaving the case to rest on proof, generally the party's own oath, that there was no malice in the case. Applying this rule to this case it is very questionable whether any ordinary observer would not see, in the structure here com- plained of, one which the defendants might reasonably erect, as a proper means of exhibiting their own goods, and a proper use of the space in front of their store, which was theirs for every reason- able and legitimate use, and therefore one of which the plaintiff has no right to complain ; while the intent to annoy the occupant of the plaintiff's store, though found as a fact, and though without the show-case might not have been procured, was really subordinate to the legitimate purpose. But whether or not an ordinary observer 'Compare Kucniak v. Kozminski, 107 Mich. 444 (1895), holding that if the structure, a shed used by tenants for storing coal, serves, a useful purpose, ''while there may have been some malice displayed in putting it so near the complainant's house as to shut off some of the light, that would not be a suf- ficient reason on which to found a right in complainant to have the build- ing removed." 1304 GALLAGIlllK I-. DOUGE. would have so regarded the structure, the court has here found as a fact, upon what evidence it does not appear, that the primary ob- ject of the defendants was the legitimate one of displaying their goods, and the intent to annoy the neighbor only a secondary one. And we think it therefore, considering all the circumstances, a case that falls within the line, which we do not attempt to define with exactness, that divides structures that the court will not interfere with from those against which the statute intended to furnish a protection. There is a feature of this case that we ought perhaps to notice more particularly. The occupant of the plaintiff's store and the defendants were rivals in business. It was the right of each not only to show his own wares to the best advantage, but also to pre- vent the other from getting any advantage in the exhibition of his to which he was not legally entitled. While such competition in all business tends to benefit the public, there are yet many things done in it that are by no means commendable, and which often belong to a low level of morality, but which are yet beyond the control of law. The act of the defendants in this case was, at the worst, of that character. So far as it was intended to annoy the occupant of the plaintiff's store it was not so much from malice, as we ordinarily understand that term, and as we think it is to be understood in the statute, as from a spirit of competition in business — of ill will per- haps — yet not so much against the object of it as an individual as against him as a rival in business. We do not mean to say that such acts may not be carried so far as to fall within the condemna- tion of the statute, but we think that, to do so, they must as a gen- eral rule gO' quite beyond the petty hostilities of business compe- tition. A question was made by the defendants whether the action could be maintained by the plaintiff, as owner of the premises, while the acts complained of were directed wholly against his lessee, who was occupying the store, and whose business, it was claimed, was injured by them. In the view we have taken of the case we have not thought it necessary to consider this question. We have treated the case as if the plaintiff had himself been the occupant. There is nb error in the judgment complained of. In this opinion the other judges concurred.^ 1 'In Ridcouf v. Knox, 148 Mass. 368 (1889), it was held that the desire to injure must be the dominant motive. "A man," says Holmes, J., "cannot be punished for malevolently maintaining a fence for the purpose of annoy- ing his neighbor, merely because he feels pleasure at the thought that he is giving annoyance, if that pleasure alone would not induce him to maintain it for other reasons, if that pleasure was denied him. If the height above six feet is really necessar}^ for any reason, there is no liability, whatever the motives of the owner in erecting it." Accord: Lord v. Langdon, 91 Maine 221 (1898), and compare Hunt v. Coggiii. 66 N. H. 140 (1889). But it is not necessary' that the purpose to annoy should be the sole motive, Healey v. Spauldiiig, 104 Maine 122 (1909). In Jones v. Williams. 56 Wash. 588 (1910). it is held that if the structure enhances "the value, usefulness or en- joyment of land" it is not a nuisance, no matter how malicious the owner's ^ purpose in erecting it; and see Kuzniak v. Kocminski, 107 Mich. 444 (1895). II HOLBROOK V. MORRISON. I305 HOLBROOK ^iJ. MORRISON. Supreme Judicial Court of Massachusetts, 1913. 214 Mass. 209. ]\IoRTON, J. The plaintiffs are dealers in real estate and own a number of lots on Wellington Hill in the Dorchester District of the City of Boston. The defendant owns a house and lot abutting on two of the lots belonging to the plaintiffs and in close proximity to the others. She has caused to be placed on the front of her house a large sign headed with the words "For Sale," and concluding with the words "Best offer from Colored Family," all in large letters. The first entrance on to Wellington Hill and the way prospective purchasers would take in going there is past her house. She has also caused, it is alleged, advertisements of a like tenor to be in- serted in the "Boston Globe," a newspaper of large circulation, and has threatened and is threatening to sell her house and lot to a colored family. This is a bill to restrain the defendant from ma- liciously interfering with the plaintiffs' business by means of such sign and advertisements and by such threats. The bill alleges that the effect of the defendant's acts has been greatly to injure the sale of the plaintiffs' lots and that the defendant's purpose is to injure the plaintiffs' business, and that she had no real intention of selling her house and lot, to members of the negro race. The case was heard by a single justice, Loring, J., and comes here on a report by him of the evidence and of a finding made by him "that the defendant did not put up the sign for the sole pur- pQse of selling her property, but that she did it for the purpose of annoying the plaintiffs." This finding was made by the single jus- tice "without going into the question of whether she (the defendant) was justified in having that ill feeling;" and the report concludes, "such decree to be entered by the court as justice and equity may require." It appeared from the uncontradicted evidence that the threat- ened sale by the defendant of her house and lot to a colored family has injured and will continue to injure the business of the plaintiffs unless prevented. We interpret the finding made by the single jus- tice as meaning that one purpose which the defendant had in putting up the sign and in advertising her property as she did was to sell it. She also had the purpose, as he finds, of annoying the plaintiffs. There can be no doubt that the defendant has the right to ad- vertise her property for sale by signs or otherwise in the usual way, and to sell it if she sees fit to a negro family, even though the effect may be to impair the business of the plaintiffs ; just as, for instance, the owner of land on a hillside may cultivate it in the usual way even though the effect of the surface drainage may be to fill up his neighbor's mill pond below. Middlesex Co. v. McCue, 149 ^lass. 103. Does the presence in the sign and advertisements of a malevo- lent motive quoad the plaintiffs, although they are not named, in- tended to annoy and in fact annoying and injuring the plaintiffs' business by announcing in effect that the property is for sale to a 1306 BRADFORD V. PICKLES. colored family change what otherwise would be a legal right into an actionable wrong? It would seem clear according to our own decisions that it does not. Rideoiit v. Knox, 148 Mass. 368. Green-' leaf V. Francis, 18 Pick. 117. Walker v. Cronin, 107 Mass. 555. See also F racier v. Brown, 12 Ohio St. 294 ; ChatHeld v. Wilson, 28 Vt. 49; Mahan v. Broxvn, 13 Wend. 261. In the present case it is plain, as we have said, that the defendant has the right, if she sees fit to do so, to sell her house and lot to a negro family whatever the effect may be upon the plaintiffs' business and property. If she had put up the sign and had caused the advertisements to be inserted without any such intention as alleged in the bill of selling her prop- erty but solely with the purpose of injuring the business and prop- erty of the plaintiffs, there can be no doubt that such conduct on her part would have been actionable. As was said in Rideout v. Knox, 148 ]\Iass. 368, 372, "the right to use one's property for the sole purpose of injuring others is not one of the immediate rights of ownership." But as we have construed the finding of the single justice, one of her purposes in putting up the sign was to sell her property, which was a lawful purpose and one of the indefeasible rights of ownership.^ SECTION 3. The Right to Appropriate the Benefit of Natural Resources, Common to Several Landowners. CORPORATION OF BRADFORD v. PICKLES. Court of Appeals, 1894. L. R. 1895, Ch. Div. 145. House of Lords, 1895. L. R. 1895, App. Cas. 587. LixDLEV, L. J. The plaintiffs in this case are (inter alia) a waterworks company, and they want water. The defendant is the owner of some land which is full of water which he does not want. This water supplies some wells which belong to the plaintiff, and, if cut off by the defendant, will materially diminish the water which the plaintiff's will be able to pump. The defendant says to the plain- tiffs, "If you want me to supply you with water you must pay me for it, and if you will not pay me what I want, you shall not have the water from my land, and I will cut it off." The defendant and the plaintiffs being unable to come to terms, the defendant has be- gun to construct works which, if completed, will cut off, or at all ^ See Falloou v. Schilling, 29 Kans. 292 (1883), where the court refused to restrain the defendant, who had quarreled with the plaintiff because he had refused to sell his adjoining property to the defendant, from erecting near the division line small tenements to be rented to negroes. BRADFORD V. PICKLES. I307 events greatly diminish, the plaintiff's supply. The plaintiffs there- upon bring this action and apply 'for an injunction, which Mr. Jus- tice North has granted. The defendant has appealed; and this Court has now to decide whether the injunction can be maintained or not. I entirely concur in the view taken by Mr. Justice North of the conduct of the defendant. He does not want the water himself, nor does he want to get rid of it in order the better to work his own land. He simply wants to force the plaintiffs to buy his land, or the water coming from it, at his own price, regardless of the interests of other people who will be seriously inconvenienced if the defend- ant cuts off the supply. But Mr. Justice North held, and in my opinion rightly held, that these circumstances are not enough to jus- tify the Court in interfering with the defendant. The only ques- tion a Court of Law or Equity can consider is whether the defend- ant has a right to do what he threatens and intends to do. If he has he cannot be interfered with, however selfish, vexatious, or even malicious his conduct may be: see Chasemore v, Richards, 7 H. L. C. 349. This is not one of those in which an improper object or mo- tive makes an otherwise lawful act actionable. It is not like libel or malicious prosecution, or what are called frauds on powers. Apart 'from special legislation, the -right of the defendant to drain his own land by getting rid of all the water which percolates into and through it underground cannot be denied : see Chasemore V. Richards and Acton v. Bliinddl, 12 M. & W. 324, 354; and this is all that he is doing. He is not diverting any defined stream. If, as the plaintiffs say, he is not entitled to do what he intends to do, it must be by reason of some special legislation, and not by reason of the ordinary law of the country. Lord Halsbury, L. C. Apart from the consideration of the particular Act of Parliament incorporating the plaintiffs, which re- quires separate treatment, the question whether the plaintiffs have a right to the flow of such water appears to me to be covered by authority. In the case of Chasemore v. Richards, it became neces- sary for this House to decide whether an owner of land had a right to sink a well upon his own premises, and thereby abstract the sub- terranean water percolating through his own soil, which woidd otherwise, by the natural force of gravity, have found its way into springs which fed the River Wandle, the flow of which the plaintiff in the action had enjoyed for upwards of sixty years. The question was then determined by this House, and it was held that the landowner had a right to do what he had done what- ever his object or purpose might be, and although the purpose might be wholly unconnected with the enjoyment of his own estate. The only remaining point is the question of fact alleged by the plaintiffs, that the acts done by the defendant are done, not with any view which deals with the use of his own land or the percolating water through it, but is done, in the language of the pleader, "ma- liciously." I am not certain that I can understand or give any in- telligible construction to the word so used. Upon this supposition 1308 BRADFORD PICKLES. on which I am now arguing, it conies to an allegation that the de- fendant did maliciously something that he had a right to do. If this question were to have been tried in old times as an injury to the right in an action on the case, the plaintiffs would have had to allege, and to prove, if traversed, that they were entitled to the flow of the water, which, as I have already said, was an allegation they would have failed to establish. This is not a case in which the state of mind of the person do- ing the act can affect the right to do it. If it was a lawful act, how- ever ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it. ^Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant. But I am not prepared to adopt Lindley L. J.'s view of the moral obliquity of the person insisting on his right when that right is challenged. It is not an uncommon thing to stop up a path which may be a convenience to everybody else, and the use of which may be nc inconvenience to the owner of the land over which the path goes. But when the use of it is insisted upon as a right, it is a famil- iar mode of testing that right to stop the permissive use, which the owner of the land would contend it to be, although the use may form no inconvenience to the owner. So, here, if the owner of the adjoining land is in a situation in which an act of his, lawfully done on his own land, may divert the water which would otherwise go into the possession of this trading company, I see no reason why he should not insist on their purchas- ing of his interest from which this trading company desires to make profit. For these reasons, my Lords, I am of opinion that this appeal ought to be dismissed without costs, and that the plaintiffs should pay to the defendant the costs both here and below. Lord Watson. But the appellants pleaded at your Lordships' Bar, as they did in both Courts below, that the principal of Chase- more V. Richards is applicable to the present case, because, in the first place, the operations contemplated and commenced by the re- spondent are by statute expressly prohibited ; and, in the second place, these operations were designed and partly carried out by the respondent, not with the honest intention of improving the value of his land or minerals, but with the sole object of doing injury to their undertaking. The second plea argued by the appellants, which was rejected by both Courts below, was founded upon the text of the Roman law (Dig. lib. 39, tit. 3, art. i, s. 12), and also, somewhat to my surprise, upon the law of Scotland. I venture to doubt whether the doctrine of Alarcellus would assist the appellants' contention in this case ; but it is unnecessary to consider the point, because the noble and learned Lords who took part in the decision of Chasemore v. Richards, held that the doctrine had no place in the law of England. I desire, however, to say that I cannot assent to the law of Scotland as laid down by Lord Wensleydale in Chasemore v. Rich- BRADFORD X'. PICKLES. I3O9 * ards, 7 H. L. C. at p. 388. The noble and learned lord appears to have accepted a passage in Mr. Bell's Principles (sect. 966), which is expressed in very general terms, and is calculated to mislead unless it is read in the light of the decisions upon which it is founded. I am aware that the phrase "in aemulationem vicini" was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a pro- prietor has been found to be illegal, or restrained as being in aemu- lationem, where it was not attended with offence or injury to the legal rights of his neighbor. In cases of nuisance a degree of in- dulgence has been extended to certain operations, such as burning limestone, which in law are regarded as necessary evils. If a land- owner proceeded to burn limestone close to his marsh so as to cause annoyance to his neighbor, there being other places on his property where he could conduct the operation with equal or greater convenience to himself and without giving cause of offence, the Court would probably grant an interdict. But the principle of aemulatio has never been carried further. The law of Scotland, if it differs in that, is in all other respects the same with the law of England. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. I therefore concur in the judgment which has been moved by the Lord Chancellor. Lord Ashbourne. Mr. Pickles has acted within his legal rights throughout ; and is he to forfeit those legal rights and be punished for their legal exercise because certain motives are imputed to him? If his motives were the most generous and philanthropic in the world, they would not avail him when his actions were il- legal. If his motives are selfish and mercenary, that is no reason why his rights should be confiscated when his actions are legal. Lord MacNagiiten. As regards the first point, the position of the appellants is one which is not very easy to understand. They cannot dispute the law laid down by this House in Chasemore v. Richards, 7 H. L. C. 349. They do not suggest that the under- ground water with which Mr. Pickles proposes to deal flows in any defined channel. But they say that ]\lr. Pickles' action in the matter is malicious, and that because his motive is a bad one, he is not at liberty to do a thing which every landowner in the country may do with impunity if his motives are good. Mr. Pickles, it seems, was so alarmed at this view of the case that he tried to persuade the Court that all he wanted was to unwater some beds of stone which he thought he could work at a profit. In this innocent enter- prise the Court found a sinister design. And it may be taken that his real object was to show that he was master of the situation, and to force the corporation to buy him out at a price satisfactory to himself. Well, he has something to sell, or, at any rate, he has something which he can prevent other people enjoying unless he is paid for it. Why should he, he may think, without fee or reward, keep his land as a store-room for a commodity which the corpora- I3IO BARCLAY V. ABRAHAM. tion dispense, probably not gratuitously, to the inhabitants of Brad- ford ? He prefers his own interests to the public good. He may be churlish, selfish, and grasping. His conduct may seem shocking to a moral philosopher. But where is the malice? Mr. Pickles has no spite against the people of Bradford. He bears no ill-will to the corporation. They are welcome to the water, and to his land too, if they will pay the price for it. So much perhaps might be said in defence or in palliation of ^Ir. Pickles' conduct. But the real answer to the claim of the corporation is that in such a case mo- tives are immaterial. It is the act, not the motive for the act, that must be regarded. H the act, apart from motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element.^ BARCLAY V. ABRAHAM. Supreme Court of Iowa, 1903. 121 Iowa 619. Ladd, J. The particular district wuthin which flowing wells may be obtained at a depth varying from one hundred to two hun- dred feet is three or four miles in length by about one-half mile in ^Accord: Meeker v. East Orange, 76 N. J. L. 435 (1908), facts practically identical to Chasemore v. Richards; Chatfield v. Wilson, 28 Vt. 49 (1855), de- fendant dug a well which intercepted the percolating water which had pre- viously supplied the plaintiff's well, so causing it to go dry, the defendant's ob- ject, or motive as it was called, was held immaterial; Hubcr v. Mcrkcl, 117 Wis. 355 (1903), defendant sank an artesian well which seriously diminished the flow of the plaintiff's well. In Hague y. Wheeler, 157 Pa. St. 324 (1893), the owner of land was held to have a similar right to appropriate the nat- ural gas from strata underlying after reducing it to possession, and to use, sell or waste it or to do otherwise what he pleased with it; and see Kellcy V. Ohio Oil Co., 57 Ohio St. 317 (1897), accord: semble, where, however, the defendant's proposed wells were designed to obtain oil for his own use and sale, the allegation being that by their location near the plaintiff's line, they would enable the defendant to appropriate more than his fair share of the common supply. In Smith v. Brooklyn, 160 N. Y. 357 (1899), it was held that it is wrong- ful to diminish the waters in a defined surface channel by the appropriation by pumping of the subsurface water on adjacent lands ; contra, Meeker v. East Orange, 76 N. J. L. 435 (1908) ; compare Grand Junction Canal Co. v. Shugar, L. R. 9 Ch. 493 (1871). A landowner's right to sub-surface water free from contamination, if not from diminution by reason of his neighbor's actions is recognized in Ballard V. Tomlinson, L. R. 29 Ch. Div. 115 (1885), the defendant at a con- siderable distance (the distance being immaterial) deposited sewage in a disused well which percolated into and polluted the plaintiff's well; Collins v. Chartiers Valley Gas Co., 131 Pa. St. 143 (1890); Kiuuaird v. Standard Oil Co., 89 Ky. 468 (1890), compare New River Co. v. Johnson, 2 E. & E. 435 (1860). As to the liability of persons, other than adjacent owners appropriating by operations in their land the water underlying it by diverting the supply of the plaintiff's springs, see Parker v. Boston & M. R. Co., 3 Cush. 107 (Mass. 1849) ; Hart v. Jamaica Pond Aqueduct Corp., 133 Mass. 488 (1882) ; United States v. Alexander, 148 U. S. 186 (1892). wells drained by the execu- tion of public works or of private operations carried on upon the lands of others under statutes authorizing such operations and providing for the re- covery of damages for the harm done thereby ; as to the liability of a mere stranger, see Springfield Water-works Co: v. Jenkins, 62 Mo. App. 74 (1895). BARCLAY V. ABRAHAM. I3II width, following the direction of the creek. Within this area there are at least eleven wells which are now or have been flowing above the earth's surface. That of plaintiff, near his barn, is one hun- dred and fifty-two feet deep. The well sunk by defendant is only one hundred and seven feet deep, but on ground about as much lower as the difference. Its casings are three inches in diameter, and the flow, when uninterrupted, has the effect of stopping plain- tiff's well and of several others. It is located near the south line of defendant's land, from which the water runs in the creek, and, save that necessary for about thirty head of cattle, is without ben- efit to him or any one else. The water in excess of a stream one- fourth inch ill diameter, to which extent the district court directed him to restrain the flow, is absolutely wasted, and so done without excuse. True, he pretended that the entire flow was essential to pre- vent clogging with sand or gravel, but the evidence shows conclu- sively that this was less likely with the smallest available exit. Again, he pretended to have in contemplation the elevation to his tenant's house, across the eighty acres, up some forty feet, of water for do- mestic use by the operation of a hydraulic ram. But the extent of his preparation therefor was the reading of a circular from some manufacturing company. There was no proper showing that the flow permitted would be inadequate for this purpose, and it con- clusively appears that it had nothing to do with his insistency upon utterly wasting the water his neighbors so much needed. But the presumption obtains that such waters are percolating waters, unless shown to be supplied by a stream of known and defined channel. Gould on Waters, sections 280, 281 ; Hanson v. McCtie, 42 Cal. 303 ; Tampa Waterzvorks Co. v. Cline, 37 Fla. 586 ; Metcalf v. Nelson, 8 S. D. 87 ; Wheatley v. Baugh, 25 Pa. 528 ; Hiibcr V. Merkel, iiy Wis. 355. And it follows that the burden of proof is upon those asserting right to waters below the surface, on the ground that they flow in a defined and known channel, to estab- lish the existence of such channel. Black v. Ballymena Com'rs., 17 L. R. Ir. 459; Hiiher v. Merkel, sitpra.^ There is nothing in the ^ "It is to be observed that the mere existence of the channel is not enough ; its location must be known or reasonably ascertainable. Lybe's Ap- peal, 106 Pa. St. 626; Collins v. Chartiers Valley Gas Co., 131 Pa. St. 143. where the court concludes that it is clear, 'from the principles and reasoning of all the cases, that the distinction between rights in surface and in subterranean waters is not founded on the fact of their location above or below the ground, but on the fact of knowledge, actual or reasonably acquirable, of their existence, location, and course.' And in Black v. Ballymena Com'rs, 17 L. R. Ir. 459: 'So far the law on the subject is clear; but a difficulty ap- pears still to exist as to the application of this rule by reason of the use of the word "known" in connection with the word "defined," and it does not seem to have been laid down as yet what the nature or extent of the knowledge is which must be proved to exist in order to constitute the riparian relations. It cannot mean that a channel should be visible throughout its course, which would be an impossibility, from the very fact of its being subterranean. In considering the question, the knowledge required cannot be reasonably held ^o be that derived from a discovery in part by excavation exposing the chan- nel, but must be knowledge by reasonable inference from existing and ob- served facts in the natural, or, rather, the pre-existing, condition of the sur- 13 12 BARCLAY Z'. ABRAHAM. record to overcome the presumption that the supply of the entire district is percolating water. This being true, there is no doubt but defendant had the right to make such beneficial use of the water in the improvement of his land as he might choose. But it does not follow that he had the right to draw from this reservoir within the earth wherein nature had stored water in large quantities for beneficial purposes merely to waste or carry out a design to injure those having equal access to the same supply. Decisions to the effect that percolating waters are to be treated the same in law as the land in which found, and may be diverted, consumed, or cut off with impunity, without lia- bility for interfering or destroying the supply, are numerous in this country and England — too numerous for citation ; but see Wheat- ley V. Baugh, supra. Mayor & Aldeman, etc., v. Pickles, A. C. ( 1895) 587, and Frazier v. Brozvn, 12 Ohio St. 294. In the last of these cases the principle imderlying the right to such waters, and the reasons upon which it rests, were thus stated: "In the absence of express contract and of positive authorized legislation, as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing, or fil- trating through the earth ; and this mainly from considerations of public policy : ( i ) Because the existence, origin, movement, and course of such waters, and the causes which govern and direct their movements, are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would be, therefore, practically impossible;- (2) Because any such recognition of correlative rights would interfere, to the material detriment of the commonwealth, with drainage, and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building, and the general progress of improvement in works of embellishment and utility." An examination of the authorities, however, indicates that they proceed upon the theory that the right thereto relates to the benefi- cial iise of the land, and is connected with its enjoyment for the purposes of agriculture, mining, trade, improvement, and the like. This thought is emphasized by the dicta in many decisions to the eft'ect that percolating waters may not be extracted from the earth face of the ground. The onus of proof, of course, lies on the plaintifif claim- ing the right, and it lies upon him to show that without opening the ground by excavation, or having recourse to abstruse speculations of scientific per- sons, men of ordinary powers and attainments would know, or could with reasonable diligence ascertain, that the stream when it emerges into light comes from and has flowed through a defined subterranean channel." Sur- face indications of a stream are discussed in Tampa Jl'aterzvorks Co. v. Cline, 37 Fla. 586, where surface depressions extended on either side of a spring: in Hale v. McLea, 53 Cal. 578, where a line of bushes usually found nowhere except over water courses extended from a spr;n!T on adjoining land." *"But see Ballard v. Tomlinson and Collins v. Chartier's Valley Gas Co., Note 1 to Bradford v. Pickles, ante, p. 1306. BARCLAY V. ABRAHAM. I3T3 to the injury of others merely to gratify malice. Thus, in the leading case of IVheatley w Bgiicjh, the court declared that '"neither the civil law nor the common law permits a man to be deprived of a well or spring or stream of water for the mere gratification of malice. The reason is that water, like air, is of such a nature that no one can have an exclusive right in it. In the process of evapora- tion and condensation it is sent in refreshing showers all over the earth. In its descent into the ocean it necessarily passes from one to the other, and is intended for the benefit of all. The right of each is more or less dependent upon that of his neighbor."^ See, also, Greenleaf v. Francis, i8 Pick. 119, where it was held that an owner may dig a well in any part of his land, even though the water in his neighbor's well be diminished, but with this limitation, that in doing so he is not actuated by a malicious intent to deprive his neighbor of water without benefit to himself.'* The right being conceded, possibly the intent with which exercised would be im- material. On this point the authorities are in conflict. See Chesley V. King, 74 Me. 164 (43 Am. Rep. 569) ; Huher v. Merkel, (Wis.) 94 N. W. Rep. 354. The doctrine of correlative rights between landowners respect- ing the appropriation and use of percolating waters has been broadly applied in New Hampshire (Bassett v. Salisbury Mfg. Co., 43 N. H. 569 ; Swett v. Cutis, 50 N. H. 439) , where the court declared that no good reason could be given why it should not be applicable in all cases where the rights of owners of adjoining lands to col- lect and use percolating waters are in apparent, though not real hostility. The courts of New York seem to have held that the owner of land may not sink wells on his own land from which, by the use of pumps of potential force and reach, he may drain the percolating waters from the premises of his neighbors to their injury, merely for the purpose of merchandising the water to consumers distant ^ The dictum is cited with approval in Miller v. Black Rock etc. Co., 99 Va. 747 (1901), and in many of the later Pennsylvania cases, Haldeman V. Briickhart, 45 Pa. 514 (1863); L\be's Appeal, 106 Pa. St. 626 (1884); Williams v. Ladew, 161 Pa. St. 283 ( 1894) ; but in all of them it was, as in IVheatley v. Baugh, mere dictum, the acts done by the defendant being clearly appropriate to and intended for the improvement and development of his own property. But see Hague v. Wheeler, 157 Pa. St. 324 (1893). * The actual language used is "unless in so doing" (digging the well which diminishes the water in the plaintiff's well) "he is actuated by mere malicious intent to deprive his neighbor of water" ; this is quoted with approval in Roath v.Driscoll, 20 Conn. 533 (1850): in Chesley v. King, 74 Maine 164 (1882), it is said that while the plaintiff's rights in the spring in question "were completely subject to the defendant's right to consult his own con- venience and advantage in the digging of a well in his own land for the better supply of his own premises with water", they, "should not be ignored if it were true that the defendant did it for the mere, sole and malicious purpose" of cutting off the sources of the spring and injuring the plaintiff, and not for the improvement of his own estate; in Wyandot, Club Co. v. Sells. See also. Springfield Water-works Co. v. Jenkins, 62 Mo. App. 74 (1895), p. 82; Gagnon v. French Lick Springs Hotel Co., 163 Ind. 687 (1904), p. 696; and Louisville Gas Co. v. Kentucky Heating Co., 117 Ky. 71 (1903). I3I4 BARCLAY V. ABRAHAM. from the land. Forbell v. City of Nczv York, 164 N. Y. 522.^ In that case it was said: "In the absence of contract or enactment, whatever it is reasonable for the owner to do with his sub-surface water, regard being had to the definite rights of others, he may do. He may make the most of it that he reasonably can. It is not unrea- sonable, so far as it is now apparent to us, that he should dig wells, and take therefrom all the water that he needs, in order to the fullest enjoyment and usefulness of his land as land, either for purposes of pleasure, abode, productiveness of soil, trade, manufacture, or for whatever else the land as land may serve. He may consume it, but must not discharge it to the injury of others. But to fit it up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored in the plaintiff's land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff and others whose lands are thus clandestinely sapped, and their value impaired." The opinion seems to be grounded upon the notion that extracting the water by force constituted a trespass, and the court, apparently in recognizing a departure from previous decisions, added : "We more readily conclude to affirm because the immunity from liability which defendant claims violates our sense of justice. It seems to pervert just rules to unjust purposes. It ^Accord: Hathorn v. Natural Carbonic Gas Co., 194 N. Y. 326 (1909), where emphasis is laid upon the powerful artificial means to monopolize the common source of supply and upon the fact that the use for which the water was appropriated, the extraction of carbonic acid for sale, was un- connected with the improvement and enjoyment of the land. As to the use of artificial means to secure a share of subjacent water, oil or gas, greater than would flow naturally to the defendant's well, com- pare Manufacturers' Gas &c. Co. v. Indiana Nat. Gas &c. Co., 155 Ind. 461 (1900), holding wrongful, with' lanes v. Forest Oil Co., 194 Pa. St. 379 (1900), holding lawful, the use of gas pumps of a sort customarily used and which by their low cost are within the reach of all well owners; and see Richmond Nat. Gas Co. v. Enterprise Nat. Gas Co., 31 Ind. App. 222 (1903). The appropriation of sub-surface water for a use not incidental to the development of the land which it underlies, is regarded as unlawful in Kat3 V. Walkinshaw, 141 Cal. 116 (1903), water pumped from the land piped to a distant reservoir and sold; Cohen v. LaCanada Land Src. Co., 142 Cal. 437 (1904); Gagnon v. French Lick Springs Hotel Co., 163 Ind. 687 (1904) ; Hathorn v. Carbonic Gas Co., 194 N. Y. 326 (1909) ; see also, Willis^ V. Perry, 92 Iowa 297 (1894), city using water of a "subterranean strearn" for the supply of its inhabitants; contra, Huber v. Merkel, 117 Wis. 355 (1903), and Meeker v. East Orange. 76 N. J. L. 435 (1908), p. 441, and see Stillwater Water Co. v. Farmer, 89 Minn. 58 (1903), dubitante, compare Smindon Waterworks Co. v. Wilts and Berks Canal, L. R. 7 Eng. & Irish App. Cas. 697 (1875), and Scranton Gas & Water Co. v. Delaware, L. & W. R. Co., 240 Pa. St. 604 (1913), holding that riparian owners have as such no right to carry off water from the stream for sale or use outside their riparian land. The tendency of the later cases is to assimilate the rights of landowners to appropriate the sub-surface water or to divert it or ob- struct its flow to adjoining land to the similar rights of riparian owners to use, detain or divert the water of a defined surface stream ; see Louisville Gas Co. V. Kentucky Heating Co., 117 Kv. 71 (1903), p. 78; Bassett v. Salis- bury Mfg. Co., 43 N. H. 569 (1862), and see Katz v. Walkinshaw. 141 Cal. 116 (1903). BARCLAY v. ABRAHAM. I315 does wron^^ under the letter of the law, in defiance of its spirit." Smith V. City of Brooklyn, 14 App. Div. 340 (N. Y. 1897), is re- ferred to approvingly. In that case, upon full consideration, the court declared that, while waters might be extracted from the depths for the reasonable use or improvement of the land, the law will not allow this to be done for some purpose unconnected with the use, improvement, or enjoyment of the land itself to the detriment of adjoining owners. See same case on appeal (160 N. Y. 367). It is not necessary to go to this extent in order to sustain the decree in this case. The water from defendant's well, in excess of that allowed him by the court, fell to the earth, and immediately flowed from his land on that of a neighbor below. He proposed to draw the percolating waters, not to supply the people of a great city, but to waste without advantage to any one. In principle the case is like that of Stilhvater Water Co. v. Farmer, (Minn.) 93 N. W. Rep. 907, and we are inclined to approve the doctrine therein announced. There the plaintiff supplied water for domestic pur- poses to the people of the city of Stillwater from a spring about which it had constructed a wall some six feet in diameter. This was within a few feet from the boundary line between the company's and Farmer's land. Near this line, and not more than ten feet from the center of the spring, Farmer excavated a trench, and placed in it a ten-inch tile drain connected with the city sewer. As a result perco- lating waters were drawn away from the spring, where they would naturally have gone, materially affecting the supply of water in the spring. Thereupon the company made a change in the outlet and in the mains to guard against such loss ; whereupon Farmer began to lay his tile at a lower level, commencing at the sewer. A temporary injunction was granted, and in a well-considered opinion the court held that defendant might not even collect percolating waters merely to squander them to the detriment of his neighbor. The theory of the decision is that, while ownership of the soil extends to the center of the earth, it is somewhat restrained by the maxim, "Sic iitere tiio ui alienuni iwn laedas." The court directs attention to the fact that in nearly every case where the right to collect or divert percolating waters has been upheld this has been for some beneficial purpose, and pertinently suggests that there is no good reason for not apply- ing the doctrine of correlative rights in such a case, and that such application will not interfere with proper improvement of land, but tend to promote the general welfare of all citizens alike. The rule ap- proved is thus stated : "Except for the benefit and improvement of his own property or for his own beneficial use, the owner of land has no right to drain, collect or divert percolating waters thereon, when such acts will destroy or materially injure the spring of another per- son, the waters of which spring are used by the general public for domestic purposes. He must not drain, collect, or divert such waters for the sole purpose of wasting them. Briefly stated, a land- owner must not collect and wantonly waste percolating waters, which would" otherwise be or have theretofore been appropriated by his neighbor for the general w^elfare of the people." A I316 BARCLAY Z: ABRAHAM, contrary conclusion would permit defendant by allowing his well to flow at full capacity, not only to stop plaintiff's well, but every other well in the neighborhood, and this without the slightest benefit to himself. Indeed, this is precisely what he has threatened if interfered with. ]\Iay one man thus waste the waters stored by nature for the community and wantonly deprive it of their use? Are the courts powerless to remedy such a wrong? The Supreme Court of Wisconsin seems to have so held. Hiiber v. Merkel, supra. A distinction between an injury to the quality of the neighbor's land, as in Forbell v. City of Keiv York, and to the enjoyment of its use, is suggested, but this is not substantial. See, also, Hague v. Wheeler, 157 Pa. St. 324. Certainly no good reason can be found for allowing the owner of land to draw sub-surface water therefrom merely to waste, when this results in draining like water from his neighbor's land, to his detriment in its use and enjoy- ment. Water moves so readily from one place to another that any definite portion of it cannot be said to be the property of the owner of the soil until in some way reduced to control. The water flow- ing in defendant's well may have been from plaintiff's land or that of some other well-owner a moment previous. In this respect it differs from minerals beneath the surface, and is more like natural gas, which may not be allowed to escape by a landowner, when not made use of, to the detriment of his neighbors. Ohio Oil Co. v. In- diana, 150 Ind. 689; Ohio Oil Co. v. Indiana, 177 U. S. 190. Possibly he may waste that on his own land, if he can do so without draining water from his neighbor's. But the source of the supply of percolating waters can seldom be determined, and this is one of the main reasons for permitting its free appropriation by the owner of the soil. A different rule would Undoubtedly restrict the use and improvement of land. But the prevention of carrying the water from the land of the, owner for the purposes of commerce or waste cannot retard the improvement of the land itself, and there is no just ground for tolerating such diversion when the direct re- sult is to deprive the adjoining landowners by the incidental drain- age of their land of a supph- of water from the same natural reser- voir. This would be extracting the subterranean water from the adjoining land to its injury, without any counter benefit to the land through which taken. This is a stronger case for the interference of a court of equity than Forbell v. City of Nezv York. There the drainage rendered the adjoining land unfit for the growth of water cresses, which had formerly been raised upon it ; here it destroyed the water supply essential for its customary use and enjoyment. There the drainage was to secure water to distribute to the inhab- itants of a great city for profit; here the object was to turn it into a creek to flow unused in any way down to another's land below. The soundness of some of the reasoning of the Forbell Case may well be doubted. The exertion of the force there was in the removal of the subterranean waters in the city's land, and the only suction oc- casioned was by emptying a cavity into which the water naturally drained from the surrounding country. It is at least exceedingly BARCLAY 7'. AISRAHAM. ^31? doubtful whether this constituted trespass. In a lesser degree this happens whenever the sinking- of one well has the effect of drying up another. The doctrine of Smith v. City of Brooklyn, that the free use of such waters is limited to the improvement, use, and en- joyment of the land from which taken, and cannot be carried away for the purposes of commerce, to the injury of the premises of an adjoining owner, has the better reason for its support. But we need not go this far, even to sustain the decree of the district court, as in the case at bar the owner derived no benefit -from the sale or use of the water. As said, the case is in principle like Stillwate)' Water Co. v. Farmer, supra. The doctrine there announced is in harmony with good morals. It interferes with no valuable right of the defendants. It shields from destruction property rights of great value belonging to the plaintiff and others. It goes no farther than to say that a landowner may not collect, drain, or divert waters percolating through the earth merely to carry from his own land for no useful purpose, when such action on his part will have the effect of materially injuring or destroying the well or spring of an- other, the waters of which are devoted to some beneficial use con- nected with the land where found. It applies in principle the doc- trine of correlative rights to the control of sub-surface waters when- ever the appropriation proposed is unconnected wath the use, en- joyment, or improvement of the land from which taken. Affirmed. "^ Deemer, J., concurs in result. WYANDOT CLUB CO v. A. C. SELLS. Court of Common Pleas, Ohio, 1895. 3 Ohio Nisi Priiis Re/y. 210. PuGH, J. The question raised by the demurrer to the plaintiff's amended petition is identical with that which is raised by, and de- " In the following cases the waste of water, gas or oil was held wrong- ful, Stillwater Water Co. v. Farmer, 89 Minn. 58 (1903) ; Springfield Water- works Co. V. Jenkins, 62 Mo. App. 74 (1895) ; Gagnon v. French Lick Springs Hotel Co., 163 Ind. 687 (1904) ; Louisville Gas Co. v. Kentucky Heating Co., 117 Ky. 71 (1903) ; contra, Hubcr v. Mcrkel, 117 Wis. 355 (1903) ; Hague v. Wheeler, 157 Pa. St. 324 (1803); in all of thesd except the first the object was to force the plaintiff to buy up the defendant's land, to take him into his enterprise, or to rid the defendant of the plaintiff's competition. _ In Bassett v. Salisbury Mfg. Co.. 43 N. H. 569 (1862), the flow of plain- tiff's sub-surface water was impeded by the defendants' erection of a mill- dam and the consequent creation of a mill-pond, it was held that this inter- ference was actionable unless caused by the reasonable use of the defendants' own land or privilege of erecting the dam, which was said to be a mi.xed question of law and fact ; as to the factors to determine what is a reasonable use in New Hampshire, see the editor's article on "The Rule in Rvlaiids v. Fletcher." 59 U. P. L. R. 4, and 59 Am. L. Reg. 373 (1911), pp. 382-383. In Huber v. Merkcl, 117 Wis. 355 (1903) (O. S.), a statute making the owner of an artesian well who permits the discharge of more water than is reasonably necessary for his use liable to the owner of another well whose flow is thereby diminished, was held unconstitutional as taking private prop- ertv for private use without compensation; contra. Ohio Oil Co. v. Indiana, 177 U. S. 190 (1899) ; Hague v. Wheeler. 157 Pa. St. 324 (1893), semble. 13 18 WYANDOT CLUB CO. V. SELLS. cided on, the demurrer to the original petition, the decision having been rendered by Judge Badger. The complaint is, that the defendant, b}- digging a hole within a few feet of the plaintiff's line, diverted the water from a definite and well known channel under the plaintiff's land, which flowed into a spring on its land, and abstracted, prevented and intercepted the flow of said water, which ought to have flowed into the plaintiffs' said spring. It is charged that the defendant was actuated by un- mixed malice, and that his purpose was neither for the ornament or use of his own lands, which adjoined the plaintiffs' lands. From such an examination and study as I was able to give the pertinent authorities,^ I extract this rule, or exception to a rule : If the proprietor of lands by digging a well, or making any other excavation, on his own lands, withdraws water from the spring on the neighboring proprietor's land, which has either percolated into it through the former's land, or flowed into it by well de- fined and well known subterranean streams or currents, — currents or streams coursing through and under the former's land, and if he does that, not for the purpose of accommodating or benefiting himself or others, but for the purpose of injuring the neighboring proprietor, or, in other words, if in doing it he is actuated by pure and unalloyed malice towards the latter, he is answerable for the damages sustained by his neighbor. The amended petition shows facts, which bring the case within the application of the exception to the rule, which I have thus ex- tracted from the authorities ; and it is, therefore, not vulnerable to the demurrer. BADOIT V. ANDRE. Court of Lyons, 1856. Dallos, 1856, Part 2, p. 199. The Court; — On the question of responsibility; Considering that it has been proved that the mineral spring of Badoit and that of the Andre partner- ship, are only three meters apart from each other and are only at a few meters from the mineral spring belonging to the commune of Saint-Galmier ; — Considering that the great proximity of the three springs must make it an admitted fact, agreeing with the facts found by the medical inspector of the springs, that they communicate with each other, either by infiltration or by arising from a common water shed or reservoir; — Considering that it re- sults from the documentary evidence in the case : first that it was with the intention to injure Badoit that the Andre partners had pumps placed at the well of their spring; second that the use of this pump causes a diminution of two-thirds of the water of the Badoit spring and a lowering in the level of the water of the spring belonging to the commune; third that the Andre partners do not utilize in any way the surplus of mineral water obtained by the use of their pump or run it off into the Coise; — Considering that these ^Haldeman v. Bruckhart, 45 Pa. 514; Wheatley v. Baugh, 25 Pa. 528 (1855); Parker v. Boston & M. R. Co., 3 Cush. 107 (Mass. 1849); PI clpx V. Nowlen, 72 N. Y. 39 (1878) ; Chesley v. King, 74 Maine 164 (1882). BADOIT Z'. ANDRE. 13 ^9 facts convince the court that the hjdraulic apparatus of the Andre partners has been a means employed solely for the purpose of withdrawing from the neighboring property by reason of the existing communication between the two springs, the greater part of the mineral water supplied to the Badoit spring and for the purpose of running it off into the river; — Considering that for that reason, the difficulty is one of an undertaking affecting the waters of neighboring land and that this act accomplished with no other purpose than to injure, has resulted in damage, of which, under the terms of article 1382, the others owe reparation ; Considering that the Andre partners cite ineffectually the maxim nemo injuria facit qui jure suo iititur, raising the defense that they may use their spring at will and that in this respect their right of property, under article 544 of the Civil Code, is absolute, and that this right includes even that of abusing the object of ownership; — Considering, in regard to the defense thus raised, that the right of the owner of necessity is limited by the obligation of allowing one's neighbor to enjoy also his property; that the power to abuse the object of one's ownership cannot serve to color the nature of an act, which, inspired exclusively by the desire to injure, assumes, by reason of a subterranean communication between the two pieces of land, the character of an undertaking affecting the neighboring land, affecting its very substance and destroying or lessening a natural advantage, which is in fact its principal value ; that such an act rationally viewed in the light of the rule malitiis non est indulgcndum, constitutes one of the cases of quasi-torts covered by ar- ticle 1382.^ * See note 6 to Barger v. Barringer, ante, p. 1293. 1320 IIAM-MKKSMIIII >K:C. R. CO. 7'. BRAND. CHAPTER VI. Acts Directed or Permitted by Legislative Enactment. HAMMERSMITH, &c. RAILWAY CO. v. BRAND. House of Lords, 1869. L. R. 1869-70, 4 Eng. & Ir. App. Cases, 171. ■ Mr. Justice Blackburn : My Lords, — I have come to the conckision that the plaintiffs below have no right to compensation for the vibration mentioned in the special case. I need not say that finding I stand alone amongst the Judges consulted by your Lordships, I give this opinion with diffidence. My reasons are as follows : — I think it is agreed on all hands that if a person, not authorized by Act of Parliament so to do, erected a railway or any other pri- vate road on his land, and then worked it by running locomotives or trains, or any other species of carriages, upon it, so that the vibration and noise were to such an extent as really to be annoying to a neighbor, that injury would be a nuisance, -and that neighbor would have a fresh cause of action against the maintainer of the way every time that the way was so worked as to give rise to the nuisance, and he might, I apprehend, obtain an injunction to pre- vent the continuance of the nuisance. But if, instead of making and maintaining a private way of his own, the owner of the land dedicated it as a public highway, and the public brought traffic on it to such an extent that the noise and vibration seriously affected the neighbors, I apprehend they would be without remedy. The common law would leave them suffering a private hardship for the public benefit. This distinction may have some bearing on the construction of the statutes (8 Vict. c. i8, and 8 Vict. c. 20), on the true meaning of which I think the present case depends. And I think that it is agreed on all hands that if the Legisla- ture authorizes the doing of an act (which if unauthorized would be a wrong and a cause of action) no action can be maintained for that act, on the plain ground that no Court can treat that as a wrong which the legislature has authorized, and consequently the person who has sustained a loss by the doing of that act is without! remedy, unless in so far as the legislature has thought it proper toj provide for compensation to him. He is, in fact, in the same po- sition as the person supposed to have suffered from the noisy traffic on a new highway is at common law, and subject to the same hardship. He suffers a private loss for the public benefit. Now the legislature has thought fit to authorize the. defendants! to make a railway, and by 8 Vict. c. 20, s. 86, "to use and employ locomotive engines and other moving power, and carriages and IIAM.MKRSMITH .KC. R. CO V. BRAND. 1 32 1 wagons to be drawn or propelled thereby." And the first question is, whether this is such a legislative authorization of the use of such power as to render all such consequences as inevitably attend it no longer wrongful. If this were a new matter I should think there was a great deal in what is thrown out by Baron Bramwell in his judgment in the Exchequer Chamber in this case ; but the contrary was held in Rex V. Pease, 4 B. & Ad. 30, so long ago as 1832, and acted on in Vaughan V. The Taff Vale Raihvay Company, 5 H. & N. 679. And if your Lordships were to reverse those decisions the consequence would fol- low that any owner of a house or field so adjacent to a railway that the inevitable disturbance from the working of the line amounted to a nuisance might (at least where the railway has not been opened for twenty years) stop the working of the line. So large an amount has been invested in the belief that the trains might be run, even though some mischief to others was inevitable, that I think your Lordships will hold that even if the principle of Rex v. Pease was originally an error, it has long become communis error, and ought to be held to have made the law. I come, therefore, to the conclusion that, but for the statutes, the plaintiffs would have had a right of action for the vibration arising from the working of the defendant's line, and that the stat- utes have taken away that right of action. The question then arises, whether" the legislature has given the plaintiffs any compen- sation ; and that must be a question depending on the construction of the statutes.^ Lord Chelmsford : — My Lords, this is a proceeding in error upon a judgment of the Court of Exchequer Chamber reversing a judgment of the Court of Queen's Bench in favour of the plaintiffs in error upon a special case. The question raised for the opinion of the Court below was, whether the plaintiffs iri the action, who are owners of a house ad- jacent to the Hammersmith and City Raihvay, were entitled to com- * Blackburn, J., with whom agreed the majority of the House of Lords, was of the opinion that neither the Land Clauses Act nor the Railway Clauses Act, expressed an intention that compensation should be paid for such in- juries, Willes, Lush, Bramwell, JJ., and Lord Cairns, diss., were of the con- trary opinion. The majority held that the compensation in § 68 of the for- mer Act for those whose lands have been "injuriously affected by the con- struction" of the railway, included only injuries resulting from the physical construction or erection of the works and did not cover injuries due to their operation after construction. In Peinisylvauia R. Co. v. Lippincoft, 116 Pa. St. 472 (1887), and Pennsylvania R. Co. v. Marchant, 119 Pa. St. 541 (1888) a similar provision contained in the Pennsylvania Constitution, Sec. 8, Art. 16 of 1874, was given a similar construction, but see Pennsylvania, S. V. R. Co. v. Walsh, 124 Pa. St. 544 (1889), and IVilloek v. Beaver Valley R. Co.. 222 Pa. St. 590 (1909). On the other hand, similar constitutional provi- sions and statutes have been construed to give compensation for annoy- ances, etc., to adjacent owners, which, but for the legislative authority given for the railroad's operations, would be actionable nuisances. Baker v. Boston Elev. R. Co., 183 Mass. 178 (1903), though such operations are not actionable as nuisances, Chicago, M. &c. R. Co. v. Darke, 148 111. 226 (1893). 1322 HAMMERSMITH &C. R. CO. V. BRAND. pensation from the railway company for injury to their house from the vibration caused by the passage of trains over the hne in the or- dinary use of the railway, without negligence, whereby the house was depreciated in Value to the extent, as found by a jury, of £272. It must be borne in mind that this is not a case in which it was possible to claim compensation before the construction of the rail- way, nor, indeed, till after its workings had commenced, because till then it could not be known whether there would be any vibra- tion injurious to the house occasioned by the passing of the trains. The simple question, therefore, is, whether the Legislature has provided compensation for any damage to land or houses not arising from negligence, but the inevitable consequence of the proper and ordinary use of the railway. Assuming that before the passing of their Act the defendants would have been liable to an action for the injury caused to the plaintiffs' house, it is necessary for the plaintiffs in the first place to establish that the company's Act has taken away the remedy by action in order to open the way to their claim to compensation. If the cases of Rex v. Pease, 4 B. & Ad. 30, and Vanghan v. The Taff Vale Raihvay Company, 5 H. & N. 679, were rightly de- cided, this question has been determined. It was established by those cases "that \vhen the legislature has sanctioned the use of a locomotive engine there is no liability for any injury caused by using it so long as every precaution is taken consistent with its use." Mr. Baron Bramwell, in his answer to the question put by your Lordships to the Judges, adverting to the above cases, said, "With great respect I think those cases clearly wrong, and that they have proceeded on an inadvertent misapprehension of the object and ejfect of the clauses in question." And he then reasoned in this man- ner. Law Rep. 2 Q. B. 232 : "The 86th section of the 8 & 9 Vict. c. 20, which gives the company the right to be carriers on their own line, is preceded by a heading 'With respect to the carrying of pas- sengers and goods upon the railway, and the tolls to be taken there- on ;' there is not a word (said the learned Baron) in this heading as to the legalizing or allowing of nuisances. The company wanted no power to enable them to use a locomotive. A man may use a loco- motive on his soil and freehold, and so may a corporation. They do not possess the power to use it so as to be a nuisance to their neighbors. If this were intended to be given, where are the words? The words are sufficient if meant to give z'ires ultra those of a com- pany to make a railway, but insufficient if meant to authorize the do- ing of damage." With great respect to the learned Baron we do not expect to find words in an Act of Parliament expressly authorizing an indi- vidual or a company to commit a nuisance or to do damage to a neighbor. The 86th section gives pov/er to the company to use and employ locomotive engines, and if such locomotives cannot pos- sibly be used without occasioning vibration and consequent injury to neighboring houses, upon the principle of law that "Cuicunqne aliquis quid cencedit, conccdere videtur et id sine quo res ipsa esse HAMMERSMITH &C. R. CO V. BRAND. 13-3 non potiiit," it must be taken that power is given to cause that vi- bration without habihty to an action.- The right given to use the locomotive would otherwise be nugatory, as each tmie a trani passed upon the line and shook the houses in the neighborhood actions might be brought by their owners, which would soon put a stop to the use of the railway. I therefore think, notwithstanding the respect to which every opinion of Mr. Baron Bramwell is en- titled, that the cases of Rex v. Pease, 4 B. & Ad. 30, and Vaughan V. The Taff Vale Railway Company, 5 H. & N. 679, were rightly decided. 'Accord: Decker v. Evansville &c. R. Co., 133 Ind. 493 (1892); Duns- more V Central Iowa R. Co., 72 Iowa 182 (1887) ; Atchison, T. & S. F. R. Co. V. Armstrong, 71 Kans. 366 (1905); Whitney v. Marine Cent R-Co, 69 Maine 208 (1879) ; Carroll v. Wisconsin Cent. R. Co., 40 Minn 168 (1889) ; Randle v. Pacific R. Co., 65 Mo. 325 (1877) ; Parrot v. C. H &D. R. CoA 10 Ohio St. 624 (1858); Columbus &c. R. Co. v. Gardner. 45 Ohio St. 309 (1887), and Fliehman v. Cleveland. C. & St. L. R. Co.. 11 Ohio Dec 543 (1893); Thomason v. Seaboard Air Line R. Co.. 142 N. Car. 3.18 (1906); Bcseman v. Pennsylvania R. Co., 50 N. J. L. 235 (1888) ; Louisville & Nash- ville Terminal Co. v. Lellyett, 114 Tenn. 368 (1903) ; Fisher v. Seaboard Air Line, 102 Va. 363 (1904) ; Taylor v. Baltimore & O. R. Co., Z2, W. Va. 39 (1889). Contra, Baltimore Belt R. Co. v. Sattler, 100 Md. 306 (1905), though here the smoke, etc., complained of was greatly increased by the defendants^ disobedience of a municipal ordinance; Fort Worth &c. R. Co. v. Pearce 7d Tex. 281 (1889), and Trinity & B. V. R. Co. v. Jobe. 126 S. W. 32 (Tex. Civ. App. 1910) ; and see IVillis v. Kentucky &■ L Bridge Co., 104 Kv, 186 (1898), a railroad hable if, but only if, the plaintiff's premises are invaded by foreign substances such as smoke, soot, etc., compare Cosby v. Owensboro etc. R. Co., 10 Bush 288 (Ky. 1834). Accord: also the following cases in which the tracks were laid upon pub- lic highways, Carson v. Central R. Co., 35 Cal. 325 (1868) ; Chicago B. &c. R. Co. V. McGinnis, 79 111. 269 (1875), but compare Chicago M. &c. R. Co. v. Darke, 148 111. 226 (1893) ; Harrison v. New Orleans Pac. R. Co.. 34 La. Ann. 462 (1882) ; Grand Rapids & L R. Co. v. Heisel, 38 Mich. 62 (1875) ; Struth- ers V. Dunkirk W. &c. R. Co., 87 Pa. 282 (1878) •,C. & P. R. Co. v. Speer, 56 Pa. 325 (1867), contra, R. R. v. Pearce, and Trinity & B. V. R. Co. v. J ope, 126 S. W. Z2 (Tex. Civ. App. 1910). In Adams v. Chicago &c. R. Co., 39 Minn. 286 (1888), the abutting owner is held entitled to recover, because as such he owns the fee of the street to the center thereof, compare R. R. v. Heisel, 38 Mich. 62 (1875), and as to the distinction drawn between the lay- ing and operation of surface roads and elevated railroads, compare Fobes v. Ro7ne W. &c. R. Co., 121 N. Y. 505 (1890) with Story v. New York El. R. Co., 90 N. Y. 122 (1882) ; Lahr v. Met. Elev. R. Co., 104 N. Y. 268 (1887) ; Sperbv. Metropolitan Elev.R. Co., U7 N.Y.ISS {\%9Z). So where the defendant has legislative authority to lay gas pipes it is not liable for the escape of gas therefrom except on proof of negligence in their installation or maintenance. Price v. So. Met. Gas Co., 65 L. J. Q. B. 126 (1895); see Jaggard, J. in Gould v. Winona Gas Co.. 100 Minn. 258 ^ (1907) ; and one authorized to use electricity is not answerable for its escape, if its plant is equipped with those appliances which experience shows to be best to prevent such escape, National Tel. Co. v. Baker, L. R. 1893, 2 Ch. 186; Cumberland Telephone &c. Co. v. United Electric R. Co., 42 Fed. 273 (1890) ; Lake Shore & Mich. So. R. Co. v. Chicago L. S. & S. B. R. Co., 48 Ind. App. 584 (1911) ; Railway Co. v. Tel. Assn., 48 Ohio St. 390 (1891). Where, however, the operation, as the running of trains is on the particu- lar occasion in violation of a statute, e. g., a statute prohibiting Sunday traffic, a general legislative authority is no protection, Georgia R. &c. Co. v. Maddox, 116 Ga. 64 (1903), and see Taylor v. Seaboard Air Line, 145 N. Car. 400 (1907). 1324 METROPOLITAN ASYLUM DLSTRICT Z'. HILL. The plaintiffs' remedy by action being taken away, the question remains whether they are entitled to receive compensation from the company for the injury done to their house, a question which must be decided entirely by the provision of the Acts of Parliament re- lating to the subject. Lord Cairns : On one part of the case I do entirely concur with them. It appears to me that the effect of the legislation on this subject is to take away any right of action on the part of the landowner against the railway company for damage that the land- owner has sustained. It must be taken, I think from the statements in this case that the railway could not be used for the purpose for which it was intended without \^bration. It is clear to demonstra- tion that the intention of parliament was, that the railway should be used. If, therefore, it could not be used without vibration, and if vibration necessarily caused damage to the adjacent landowner, and if it was intended to preserve to the adjacent landowner his right of action, the consequence would be that action after action would be maintainable against the railway company for the damage which the landowner sustained ; and after some actions had been brought, and had succeeded, the Court of Chancery would interfere by injunction, and would prevent the railway being worked — whichj of course, is a reductio ad absurdtim, and would defeat the inten- tion of the legislature. I have, therefore, no hesitation in arriving at the conclusion that no action would be maintainable against the railway company.^ The fact alone would certainly prejudice the mind to find, in the enactments upon the subject, compensation given, in some form or other, for the loss which, beyond all doubt, the landowner in such a case sustains. I do not mean to say that it would be safe to strain the words of an Act of Parliament on account of considerations of that kind, but if there be any doubt or ambiguity in the words, the consideration ought not to be overlooked that, beyond all doubt, the intention of legislation of this kind is that, in some shape or other, compensation should be made to those who sustain loss or harm by the operation of the parliamentary powers. Judgment of Exchequer Chamber reversed. MANAGERS OF THE METROPOLITAN ASYLUM DIS- TRICT V. HILL. House of Lords, 1881. L. R. 1880-81, 6 App. Cases, 193. The Lord Chancellor (Lord Selhorne) : My Lords, it must be assumed for the present purpose, that the small-pox hospital which the appellants have established at Hampstead, is, in its actual position, and independently of the par- ticular way in which it is conducted, necessarily a nuisance to the ^ But see Galveston, Harrisburg & San Antonio R. Co. v. De Groff . 102 Tex. 433 (1909) ; Ravmond v. Transit Development Co., 65 Misc. 70 (N. Y. 1909), and compare Chicago M. &c. R. Co. v. Darke, 148 111. 226 (1893). METROPOLITAN ASYLUM DISTRICT V. HILL. I325 neighbors ; and the injunction, which has been granted by the order appealed against "using the plot of land mentioned in the state- ment of claim, and buildings thereon, as a hospital for small-pox or any other infectious or contagious disorder, in such manner as to create a nuisance to the plaintiffs, or either of them." The appel- lants are therefore obliged, in order to succeed in this appeal, to prove that they have statutory authority to create a nuisance for the purpose of, and as incidental to, the maintenance of a small-pox hos- pital in this place. The appellants say that such authority has been given to them by the 5th, 7th, and 15th sections of the Metropolitan Poor Act, 1867. and by orders of the Poor Law Board made pursuant thereto. As far as the orders of the Poor Law Board are concerned, they did undoubtedly direct the appellants to purchase the land in question at a specified price, and to build upon it an asylum for the recep- tion of poor persons infected with or suffering from fever or small-pox ; and I assume that the building, as erected and fitted up on that land, is in strict accordance with plans which the Poor Law Board has prescribed or approved. The statute when examined is found to confer, in general terms, powers exJtending over a rather wide range of subjects. So far as relates to a hospital or asylum of this particular kind, there is nothing in it mandatory or imperative. Everything which it nec- essarily requires may be done, though no such hospital should ever, or anywhere, be established.^ The result is: (i) That this act does not necessarily require anything to be done under it which might not be done without causing a nuisance ; (2) That as to those things which may or may not be done under it, there is no evidence on the face of the ^The 5th section says that, "asylums to be supported and managed ac- cording to this Act, may be provided under this Act for reception or relief of the sick, insane or infirm, or other class or classes of the poor chargeable in unions or parishes in the Metropolis." The 6th section authorizes the forma- tion of districts ; and the 7th requires that, in each district so formed, "there shall be In asylum or asylums as the Poor Law Board from time to time by order direct ;" leaving the class of poor persons, for whom any such asylum may be provided, entirely open. The 15th section enables the Poor Law Board from time to time, by order, to direct the managers "to purchase or hire, or to build, and (in either case) to fit up a building or buildings for the asylum, of such nature and size, and according to such plan, and in such manner, as the Poor Law Board think fit;" and the managers are required to carry such directions into execution. Subsequent clauses put the arrange- ment and conduct of any such asylum under the superintendence of the Poor Law Board. No compulsory power is given to acquire land, or any interest in land, for any asylum purposes. The Lands Clauses Acts are indeed incor- porated by sec. 52 ; but sec. 53 expressly provides, that so much of those Acts as relates to the purchase of land, otherwise than by agreement, shall not be put in force except for certain purposes, not including these asylums. It ap- pears incidentally from sec. 69 (which provides for the repayment of certain expenses therein specified out of the common poor fund), that asylums might be "specially provided under this Act for patients suffering from fever or smallpox ;" but, except in that way. and from the fact that the general cate- enry of "sick" necessarily includes patients suffering from any kind 0^ disease. 1326 METROPOLTTAX ASYLUM DISTRICT V. HILL. Act that the legislature supposed it to be impossible for any of them to be done (if they were done at all) somewhere and under some circumstances, without creating a nuisance; and (3) That the legislature has manifested no intention that any of these op- tional powers, as to asylums, should be exercised at the expense of, or so as to interfere with, any man's private rights. The only sense in which the legislature can be properly said to have au- thorized these things to be done, is that it has enabled the Poor Law Board to order, and the managers to do them, if, and when, and where, they can obtain by free iDargain and contract the means of doing so. If the legislature has authorized some compulsory interference with private rights of property, within local limits which it might have thought fit to define, for the purpose of establishing this asylum to be used for the reception of patients suffering from small-pox or other infectious disorders, and provided for compen- sation to those who might be thereby injuriously affected (in such cases and under such conditions as it might have prescribed) the present case might have been like Rex v. Pease, 4 B. & Ad. 30, and the Hammersmith Raikvay Company v. Brand, Law Rep. 4 H. L. 171. Xo person outside the statutory line of compensation, even if the use of the asylum in the manner authorized by the statute had been productive of serious damage to him, could then have obtained any relief or remedy, upon the footing that what the statute au- thorized was a legal nuisance to himself, or, in itself an actionable wrong. But the case is different, when (as here) no interference at all with any private rights is authorized, and no place, or limit of space, is defined within which the establishment of such an asylum is made lawful. Neither the Poor Law Board nor the man- agers could for this purpose have taken a single foot of ground, or have interfered with any, the most insignificant, easement against the will of the plaintiffs, or of any other person to whom such land or easement might belong. Xo line is here drawn by the legisla- ture between interests which are, and interests which are not, proper subjects for compensation. Under these circumstances, I am clearly of opinion that the Poor Law Board and the managers had no statutory authority to do anything which might be a nuisance to the plaintiffs without their consent. I therefore move your Lordships to affirm the judgment of the Court below, and dismiss this appeal. Lord Blackburn: If it be the fact that such an asylum must be a nuisance, unless on a site so extensive as to keep all habitations at a considerable distance, it may be that such a site cannot be obtained at all in the neighborhood of the metropolis, or only at a cost so enormous to make it practically impossible. If that is the case it might be for the consideration of the legislature whether the certain danger of infection, from leaving the infectious sick paupers where they fell ill. exceeded that which would arise from a well-regulated hospital erected in another place, to such an extent that it was for the pub- METROPOLITAN ASYLUM DISTRICT V. HILL. 1 327 lie benefit that this latter risk should be run, and whether the rights of owners of property there should stand in the way of such a public benefit, or should be made to give way, with or without compen- sation. It is clear that the burden lies on those who seek to establish that the legislature intended to take away the private rights of in- dividuals, to show that by express words, or by necessary implica- tion, such an intention appears. There are no express words in this Act, and I think the. weight of argument is rather against than in favor of such an implication. There is no power given to take land for a site otherwise than by agreement. For, though the Lands Clauses Acts are incorporated by sect. 52, yet by sect. 53 so much of the Lands Clauses Acts as relates to the purchase of lands other- wise than by agreement, shall not be put in force except for the purpose of enlarging an existing workhouse. The asylum under this Act must therefore be either made by (under sect. 18) converting a workhouse into an asylum, which is not the present case, or by erecting one on land purchased or hired by agreement. In Clozvcs v. Staffordshire Potteries Waterzvorks Company, Law Rep. 8 Ch. Ap. 125, Lord Justice Mellish says (p. 139) : "if no compulsory powers were given for the purpose of purchasing lands upon which the works were to be built, it cer- tainly seems extraordinary that compulsory powers should be given to take away the rights of other persons, who have rights in the na- ture of easements over the lands so purchased." Lord Watson : — The judgment of this House in The Hammersmith Railway Company v. Brand, Law Rep. 4 H. L. 171, determines that where Parliament has given express powers to construct certain buildings or works according to plans and specifications, upon a particular site, and for a specific. purpose, the use of these works or build- ings, in the ttianner contemplated and sanctioned by the Act, can- not, exc*ept in so far as negligent, be restrained by injunction, al- though such use may constitute a nuisance at common law ; and that no compensation is due in respect of injury to private rights, unless the Act provides for such compensation being made. Accord- ingly the respondents did not dispute that if the appellants or the Local Government Board had been, by the Metropolitan Poor Act, 1867, expressly empowered to build the identical hospital which they have erected at Hampstead, upon the very site which it now occupies, and that with a view to its being used for the treatment of patients suffering from small-pox, the respondents would not be en- titled to the judgment which they have obtained. The appellants do not assert that express power or authority to that effect has been given by the Act either to themselves or to the Board ; but they contend that, having regard to the nature of the public duties laid upon them, and the necessities of the case, it must, on a fair con- struction of the Act, be held that the legislature did intend them to exercise, such power and authority under the direction and control of the Poor Law Board. 1328 METROPOLITAN ASYLUM DISTRICT V. HILL, I see no reason to doubt that, wherever it can be shown to be matter of plain and necessary impHcation from the language of a statute, that the legislature did intend to confer the specific powers above referred to, the result in law will be precisely the same as if these powers had been given in express terms. And I am disposed to hold that if the legislature, without specifying either plan or site, were to prescribe by statute that a public body shall, within certain defined limits, provide hospital accommodation for a class or classes of persons laboring under infectious disease, no injunction could issue against the use of a hospital established in pursuance of the Act, provided that it were either apparent or proved to the satisfac- tion of the Court that the directions of the Act could not be complied with at all, without creating a nuisance. In that case, the necessary result of that which they have directed to be done must presumably have been in the view of the legislature at the time when the Act was passed. On the other hand, I do not think that the legislature can be held to have sanctioned that which is a nuisance at common law, ex- cept in the case where it has authorized a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where the particular plan or locality not being prescribed, it has imperatively directed that a building shall be provided within a certain area and so used, it be- ing an obvious or established fact that nuisance must be the re- sult. In the latter case the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the legislature, lies upon the persons seeking to justify the nui- sance. Their justification depends upon their making good these two propositions — in the first place, that such are the imperative orders of the legislature ; and in the second place, that they cannot possibly obey those orders without infringing private rights. If the order of the legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute ; and, on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, un- less they are also able to show that the legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons em- powered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the legislature intended that discretion to be exercised in strict con- formity wath private rights, and did not intend to confer license to commit nuisance in any place which might be selected for the pur- pose. "^^ * * There is no question as to the bona fides both of the lloard and of the managers. It is clear that they acted in the honest belief that all they did was for the benefit of the community, and within their statutory powers. But that will not avail if the Act does not empower either of them, or both, in conjunction, to erect an asylum to the nuisance of neighboring proprietors. These powers appear to me to be from first to last permissive and not imperative. I METROPOLITAN ASYLUM DISTRICT V. HILL. 1 329 Whether they shall be exercised at all, and, if so, to what extent and effect their exercise shall be carried, is left to the discretion of the Local Government Board. No doubt, the language of sect. 7 is imperative, and that is a circumstance upon which the appellants were fairly entitled to argue in support of their contention. But it is, in my opinion, a conclusive answer to their argument that, in the first place, the Board is not bound to form a district, and in the second pkce, if they do see fit to form a district in terms of sect. 6, they are under no statutory compulsion to establish an asylum for small-pox patients by reason of the provisions of sect. 7, but have ample means of satisfying these provisions by that erection and the use of an asylum or of asylums which do not constitute a nuisance to anybody. So far as regards a small-pox hospital, the discretion committed to the Board is not limited to determining on what site, of what size, and according to what plan it shall be built, but in- volves the duty of considering and determining whether it shall be built at all.- Gaynor, J., in Sadlier v. New York, (1903) 81 N. Y. S. 308. The law in England undoubtedly is that if Parliament authorize the actual taking of pri- vate property, or the construction and use by an individual or corporation of an3-thing which is necessarily a private nuisance, or injures the property of individuals, and provides no compensation therefor, the courts can give no redress for the injury. The question in each case is whether that is the in- tention of ParHament, and if it be the courts are bound to abide by it. But while Parliament has the power to do this, the courts of England refuse to construe an act of Parliamertt as doing or meaning so unjust a thing unless the act be so specific and precise that it cannot be otherwise construed. Man- agers v. Hill, 6 App. Cases, 193. But this is so in England only because Parliament is under no limitation or restraint. All lawyers and other students of constitutional history know that ParHament is not subject to the constitutional restraints in respect of pri- vate rights which legislative -bodies in this country are under. It is omnipo- tent, as the expression is. Bryce's Am. Com. vol. 1, p. 32; Lecky's Dem. & Lib. vol. 1, pp. 8, 53. The restraints upon government contained in Alagna Charta were extorted from the crown, and were and are to this day in Eng- land upon the crown or executive branch of government only. They were never restraints upon legislative power until made such in this country by our fundamental instruments of government. Those who made them such may not have been aware at the time that they were doing so, only having in mind, it may be, the sense in which such restraints had been theretofore un- derstood; at all events they were evidently unaware of their far-reaching effects as exemplified by modern constitutional development. In tliis country, the more plain and explicit the Legislature might be in authorizing the taking of private property, or a "direct" injury thereto, ])y a nuisance per se, or any trespass, the more plain it would make manifest that it had exceeded its constitutional powers. Kobbe v. Village of New Brighton, ■Accord: Canadian Pac. R. Co. v. Parke, L. R. 1899, A. C 535 See Adler V. Priictt, 169 Ala. 213 (1910). 1330 KING Z'. VICKSBURG R. & L. CO. 20 Misc. Rep. 477^ 45 X. Y. S. 777. The full extent of legislative power to legalize and shield a nuisance is to exempt it from public prosecution. Bohan V. Port Jcrvis G. L. Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711.^ KING V. VICKSBURG RAILWAY & LIGHT CO. Supreme Court of Mississippi, 1906. 88 Miss. 456. Campbell, Special J. The appellant is the owner of a piece of land ir Vicksburg, on the north side of Pine street, on which are five dwelling houses, one occupied by her and the others by tenants. The appellee owns and operates a plant on its land on south side of that street for generating electrical power to furnish light for the city and its inhabitants and a street railway system, under a franchise granted by the city, with which it has a contract to furnish lights. The appellee claimed that it is exempt from lia- bility for any damage, because it is operating under public authority confer- ring the right to do what it does. The court instructed the jury to find for the defendant, refusing all instructions asked by the plaintiff. The evidence shows that the property of the plaintiff was damaged by physical invasion of deleterious agents produced by the plant of the defend- ant and the Alabama & Vicksburg Railway, and it should have been left to the jury to say from which and to what extent. Considered as if between two private owners of the two properties, without reference to the public fran- chise, the right of the plaintiff to recover damages to the extent that it may be shown that they proceed from a physical invasion of her property by hurt- ful agents proceeding from the plant of the defendant is clear. Xo owner of property may set in motion agencies which physically invade the home of another without liability for the damage done. Surely no citation of author- ity for this proposition can be necessary. An elaborate discussion of the subject is contained in a note under the first case in volume 1, L. R. A. (new series). Public authority may confer the right to operate a public work, and thus make it lawful, but cannot confer a right to take or damage private property without compensating the owner for its value as taken or damaged — that is, diminished in its market value as property — by some physical in- vasion of it or by affecting some right of the owner in relation to it. Were an act passed by the legislature for the exercise of the right of eminent do- main declaring that no liability should arise for noise, smoke, soot, cinders, vibration, and the like, whatever their hurtful effect on the property of others might be, it would be void, because the elements or factors of damage to property depend upon facts, and are to be ascertained by evidence in ju- dicial proceedings. 'See Eaton v. Boston C. &c. R. Co., 51 N. H. 504 (1872), especially pp. 516-517. The question of what constitutes a "taking" or "injury" or "destruction" within the varying terms of the various constitutional prohibitions and the distinction between direct and consequential damage often held to be con- trolling belongs to the Constitutional law rather than to the law of Torts. It would seem that the distinction often drawn between acts which merely sub- ject the occupiers of adjacent lands to slight inconvenience and annoyance and those which seriously disturb their enjoyment. (See ScKvyer v. Davis, post, and cases cited in note 1 thereto.) DOLAN V, CHICAGO, M. & C. R. CO. I33I Constitution 1890, sec. 17,' makes the right of the owner of private prop- erty superior to that of the public, reversing the former rule that the individual might be made to suffer loss for the public. He still may be compelled to part with his property for public use, but only on full payment for it or any right in relation to it. The decisions of this court since the constitution of 1890 give full effect to the just rule established by its seventeenth section, by main- taining the right of the owner to be fully compensated for any loss of value sustained from any physical injury to his property or disturbance of any right in relation to it, whereby its market value is diminished. It is worthy of observation that the instruction prescribed to be given the jury in eminent domain proceedings is that "the defendant is entitled to due compensation, not only for the value of the property to be actually taken, * * * but also for damages, if any, which may result to him as a consequence of the taking." Code 1892, § 1690; Code 1906, § 1865. It is true that the lan- guage of section 17 of the constitution was intended for formal condemna- tion proceedings, wherein it provides for compensation to be first made in a manner to be prescribed by law ; but it is equally protective of the owner of private property, when no condemnation is had and his property is taken or damaged by public use. Due compensation is what ought to be made — that is, what will make the owner whole pecuniarily for appropriating or injuring his property by any invasion of it cognizable by the senses, or by interfer- ence with some right in relation to property whereby its market value is lessened as the direct result of the public, use. DOLAN V. CHICAGO, M. &c. R. CO. Supreme Court of Wisconsin, 1903. 118 IV is. 362. WiNSLOW, J. This is an action at law, under sec. 3180, Stats. 1898, to recover damages for, and secure the abatement of, a nui- sance. The alleged nuisance consists of stock-yards, maintained by the defendant upon its depot grounds at the village of Cashton, from which offensive and injurious odors and noises are said to proceed to the great discomfort of the plaintiff and his family. The evidence was entirely sufficient to sustain the findings of the jury, and the questions presented are purely questions of law. The defendant is a railway company duly chartered and op- eratmg a railroad. It is bound by positive requirement of law to receive and transport freight tendered to it for shipment, and pro- vide suitable facilities for receiving and handling the same at any of its stations. Stats. 1898, sec. 1798. It is also required to maintain a station at every village through which it passes which has a post office and a population of 200 people or more. Id. sec. 1801. It must receive for carriage all live stock offered to it from February ^"Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law ; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the con- templated use be public shall be a judicial question, and as such, determined without regard to legislative assertion that the use is public." 1332 DOLAN V. CHICAGO, M. & C. R. CO. 1st to September 30th, inclusive, and properly transport the same over its road. Id. sec. 1799a. In order to discharge the statutory duty of receiving and transporting live stock, it must have facilities for the purpose at its stations, or in some convenient place within a reasonable distance. Inasmuch as it cannot have a train ready at all times to immediately receive and transport the stock offered, it must necessarily have yards or inclosures in which the animals may be kept until they can be taken away in the regular course of the operation of the road. That offensive smells and unpleasant noises will inevitably come from such yards, when in use, is matter of common knowledge. The skill of man has not yet devised means, within the bounds of reasonable expense and diligence, by which these disagreeable results can be wholly avoided. It must follow that, if a railway company exercises reasonable and proper diligence and care in the location of its yards and in its manage- ment, it has performed its whole duty. Impossibilities cannot be required. Duties cannot be imposed, and punishments inflicted, simply because the duties have been performed. If injury results to others, it must in such case be damnum absque injuria. The same rule must apply which applies to noise and smoke and steam re- sulting from the operation of the railroad. If these annoyances result simply from the necessary and proper operation of the road, they must be borne. If the company use the best and most improved devices to prevent injury to others, it is protected by its franchises. If it is negligent in this regard, it must respond in damages, if a nuisance is thereby created. 2 Wood, Nuisances (3d ed.) § 755. So, in the case of stockyards, the railway company must use all reasonable diligence in the location of its yards, to avoid injury to others, and must manage them with approved methods, i;^ing all reasonable skill to prevent their becoming a nuisance. It cannot unnecessarily or unreasonably locate its yards in close proximity to dwellings or business houses, to their injury, without incurring liability. It must, doubtless, in order to perform its duty, place the yards in a reasonably practicable and convenient location in the vicinity of the station, for the reception and shipping of cattle, but it must at the same time place them where they will do the least possible injury to others. If these requirements be fulfilled, and if the yards be operated without negligence, and with that skill and diligence to avoid noise and noxious smells therefrom which the importance of the duty demands, there can be no liability, even though injury may result to others. Such injury, like many others, is simply one of the penalties we have to pay for the conveniences of modern methods of transportation. Much reliance was placed by the plaintiff upon Baltimore & P. R. Co. V. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, and Anderson v. C, M. & St. P. R. Co., 85 Minn. 337, 88 N. W. looi. In the first of these cases a railroad company had con- structed a roundhouse and machine shop next to a church, and the noise seriously disturbed the religious exercises. This was held to be an actionable nuisance, but the fact plainly appeared in the case COGSWELL V. NEW YORK N. H. & H. R. CO. 1333 that the location was unreasonable, and that there were many other places in the city where the shop could have been placed, and an- swer all railroad purposes fully as well. These being the facts, it Avas held that the shop so situated was a nuisance,, and that, what- ever rights were conferred on the railroad company by its charter, they were subject to the qualification that their works should not be so placed as by their use to unreasonably interfere with and disturb the comforts of others. The case goes no further, and, when rightly understood, it does not antagonize the propositions already laid down in this opinion. The second case cited is a stockyards case, and contains language tending to justify plaintifif's position here. In that case, however, the evidence established the fact that the yards were kept in an absolutely filthy condition, to the extent that dead animals were allowed to remain in them and become putrid. In view of these facts, the opinion must be read. The court said, in substance, that defendant's claim was that it had a right to select any place on its right of way for the reception and shipment of stock, but that it could not be conceded that a railroad company could rightfully create noxious conditions on its own property so near the private dwellings of others as unnecessarily to interfere with the health of the inmates. Here the element of necessity, which must mean reasonable necessity in the proper conduct of its business, is plainly recognized. This is not the case of a manufac- turing company, which may purchase property and locate its works wherever it may choose. The stockyards must be adjacent to the railroad line, the location of which is fixed, and they must be at or in convenient proximity to a station. It will not do to say that the company must go out into unsettled districts in the country for its stockyards, for that is to say that, as soon as people begin to reside •in the vicinity, the yards must be again removed to some more se- cluded spot, and so on ad infinitum.^ COGSWELL V. NEW YORK N. H. & H. R. CO. Court of Appeals of New York, 1886. 103 N. Y. 10. Appeal from judgment of the General Term of the Superior Court, of the city of Xew York, entered upon an order made De- cember 12, i88i, which affirmed a judgment in favor of defendant. ^Accord: Cleveland & Pittsburgh R. Co. v. Speer, 56 Pa. 325 (1867). power to construct railroad in the most direct and least expensive route held to authorize the construction of switches and side-tracks and to give to the company wide discretion to determine where they should be constructed, compare London Brighton & South Coast R. Co. v. Truman. L. R. 11 A. C. 45 (1885), reversing the decision of the Court of Appeal, L. R., 25 Ch. Div. 423; Beidehnan v. Atlantic City R. Co., 19 Atl. 731 (N. J. Ch. 1890). power to condemn land for terminal held to authorize its location near residences ; Georgia R. &c. Co. v. Maddox. 116 Ga. 64 (1902) ; Tavlor v. Seaboard Air Line. 145 N. Car. 400 (1907). Tn Romer v. St. Paul Citv R. Co.. 75 Minn. 211 (1899), a distinction is drawn between the shops, round-houses, etc., of steam railroads as to which it is intimated that there is a wide choice of prac- 1334 COGSWELL -c'. NEW YORK N. H. & H. R. CO. entered upon a decision of the court on trial without a jury. (Re- ported below, i6 J. & S. 31.) This action was brought to recover damages to plaintiff's prem- ises in the city of Xew York, alleged to have been caused by the use on the part of defendant of an engine-house on adjoining premises, and to restrain such use. The material facts are stated in the opinion. Andrews, J. We are relieved by the findings of the trial judge, from any question as to the sufficiency of the evidence to establish that the engine-house as used by the defendant, constitutes, under the general rule of law, a private nuisance to the property of the plaintiff. It is scarcely necessary to cite authorities to show that the engine-house as used, was, within every definition a nuisance, for which, as between individuals, an action would lie for damages, and for which a court of equity would afford a remedy by injunction. The court placed its judgment denying relief, upon the ground that the defendant was a railroad corporation, authorized by law to acquire real estate for an engine-house ; that an engine-house at the point where this engine-house was erected was necessary for the operation of its road ; and that in the construction and use of the engine-house and coal-bins, it had exercised all practicable care. The finding of law from these premises, was that "whatever dam- age resulted to the plaintiff or his property, by reason of the de- fendant's use and occupation of its engine-house and coal-bins, is damnum absque injuria. It is manifest that if this judgment can stand a most serious injury is inflicted by the defendants upon the plaintiff for which she has no redress. Her premises are subjected to a burden in the na- ture of a servitude in favor of the defendant, which seriously im- pairs the value and enjoyment of her property. The principle upoi> which the court below proceeded, was that what the legislature has authorized the defendant to do, can neither be a public nor private wrong; in other words the legislature has authorized the mainte- nance of this nuisance by the defendant and the plaintiff must bear the consequences. The court below, in denying any relief to the plaintiff, of course assumed that the legislative authority and the act of the defendant thereunder resulting in flooding the plaintiff's premises with soot, smoke and noxious gases was not a taking of the plaintiff's property within the constitution. We place our judg- ment in this case on the ground that the legislature has not author- ized the wrong of which the plaintiff complains, and it is, therefore, unnecessary to determine whether the legislature could have au- thorized it consistently with the principles of the constitution for the security of private rights, without providing for compensation. We shall pass without examination the question whether the authority given to the defendant to purchase land for an engine- ticable location and a car-barn of a street railway, which it said must be lo- cated in a residential district, and holding that, in the choice of the location of such a barn, the rights of the railway and the public served by it must be consulted as well as those of adjacent property owners. COGSWELL V. NEW YORK X. II. & H. R. CO. 1 335 house is implied in the power conferred in the sixth section of the act of 1848, to enter into an agreement with the Harlem railroad for the use of the tracks of that road, and to run its cars thereon to the city of New York. For the purpose of this case we shall assume that the general power conferred included the latter power as inci- dent. It is no doubt a settled principle of the law that many things may be done by the owner of land, causing consequential damages to his neighbor, for which the law affords no remedy. The cases embraced within this rule are those either where what was done was in the lawful and reasonable use by an owner of land of his own property, or where the damages suffered, although by possibility attributable to the wrongful act of another, were too remote there- from to justify the court in treating the one as the sequence of the other. The case before us belongs to neither of these categories. The defendant's engine-house, as maintained, was a palpable nui- sance, causing special injury to the plaintiff, for which, by the gen- eral rule of the common law, she has a right of action. The de- fendant, however, does not rely for its justification upon the ordi- nary rule governing the rights of adjoining proprietors, but, as we have said, rests upon the claim that the legislature has authorized the acts of which the plaintiff complains, and has, therefore, made that lawful which otherwise might be unlawful, and has taken away any remedy which the plaintiff otherwise might have had. It is undoubtedly true that there are cases in which the legislature in the public interest may authorize and legalize the doing of acts resulting in consequential injury to private property, without providing com- pensation, and as to which the legislative sanction may be pleaded in bar of any claim for indemnity. Indeed such is the transcendant power of parliament, that it is the settled doctrine of the English law that no court can treat that as a public or private wrong which parliament has authorized, and consequently, as stated by Black- burn, J., in Hammersmith,- etc., Raikvay Co. v. Brand (4 H. L. Cas. (Eng. & Ir. App.) 171), "the person who has sustained a loss by the doing of that act is without remedy, unless in so far as the leg- islature has thought it proper to provide for compensation." The legislative power in this country is subject to restrictions, but never- theless private property is frequently subjected to injury from the execution of public powers conferred by statute, for which there is no redress. The case of consequential injuries resulting from street improvements authorized by the legislature is a familiar example.^ The case of Bellinger v. A^ew York Central Railroad Companv- is perhaps the strongest case to be found in our reports, of the appli- cation of the doctrine that a statutory authority justifies acts which otherwise would give a right of action. But it will be noticed that it was a case where the line of the road was fixed by the charter. It was necessary in constructing the road on that line, to cross the creek on a bridge, and the low lands upon an embankment. The flooding of the plaintiff's premises was an unusual occurrence, and 'Citing Radcliff v. Ma\or, 4 N. Y. 195. '23 N. Y. 42. 1336 COGSWELL ^'. NEW YORK N. H. & II. R. CO. the evidence was very slight that it was caused by the structures of the defendant. It was under these circumstances that the court reached the conchision that the damages suffered by the plaintiff were not recoverable in the absence of negligence on the part of the defendant in the construction of the road. But the statutory sanction which will justify an injury to pri- vate property, must be express, or must be given by clear and un- questionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury." This is but an appli- cation of the reasonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private prop- erty, must be strictly construed. For it cannot be presumed, from a general grant of authority, that the legislature intended to authorize acts to the injury of third persons, where no compensation is pro- vided, except upon condition of obtaining their consent. This con- struction of statutory powers, applies with peculiar force to grants of corporate powers to private corporations, which are set up as a justification of corporate acts to the detriment of private property.* The authority conferred upon the defendant by the sixth section of the act of 1848, to run its trains over the Harlem railroad, was not, however broadly construed, a legislative sanction to commit a nuisance upon private property. The authority expressly given was not absolute, but conditional upon obtaining the consent of the Harlem railroad. It could not be known by the legislature that the building of an engine-house would necessarily interfere with private rights. However necessary it may be for the defendant that its engine-house should be located where it is, this constftutes no justi- fication for the injury suffered by the plaintiff, nor is it any answer to the action that it exercises all practicable care in its management. It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a loca- tion as will enable it to conduct its operations without violating the just rights of others. Public policy indeed reqiiires that in adjust- ing the mutual relations between railroad companies and individ- uals, courts should not stand upon the assertion of extreme rights on either side, but in this case facts leave no room for doubt that the plaintiff has suffered a substantial and unauthorized injury. The case of Baltimore & Potomac Railroad Co. v. Fifth Bap- tist Church (108 U. S. 317) fully supports the conclusion we have reached in this case, and the able opinion of Mr. Justice Field in 'See Schopp v. St. Louis, 117 Mo. 131 (1893), and Sultan v. Parker- Washington 'Co., 117 Mo. App. 636 (1906). , Mn Beidelman v. Atlantic City R. Co., 19 Atl. 731 (N. J. Ch. 1890). the fact that the defendant had been given the power to condemn land for terminal was regarded as important. COGSWELL V. NEW YORK N. H. & H, R. CO. I337 that case vindicates the right of private property to protection against substantial invasions under color of corporate franchises. The judgment should be reversed and a new trial ordered. All concur. Judgment reversed.^ Mn Choctaw O. & G. R. Co. v. Drew, 130 Pac. 1149 (Okla. 1913), Lows- rille & Nashville Terminal Co. v. Lcllvctt, 114 Tenn. 389 (1905), and Mis- souri K. &c. R. Co. V. Mott, 98 Tex. 91 (1904), it is held that railroads m locating their necessary terminals, engine-houses, shops, etc., do so at their peril; in Terrell v. C. & O. R. Co., 110 Va. 340 (1909), it is held that while a railroad in carrying passengers and freight is performing public functions, it acts in a private capacity in providing means for such carriage, as by the erection and operation of shops, engine-houses and power plants. In the following cases the location was manifestly improper or the de- fendant failed to show that his plant could not have been located at some point where it would have done less or no harm to adjacent owners, Chicago G. &c. R. Co. V. First M. E. Church. 102 Fed. 85 (C. C. A. 8th Circ. 1900), and Baltimore & Ohio R. Co. v. Fifth Baptist Church, in the one case, a water tank for the supply of engines, in the other an engine-house and shop located in the residential district in the immediate vicinity of complainant church; Shivelv v. Cedar Rapids, lozva Falls & Northtvcstern R. Co., 74 Iowa 169 (1887), cattle pens and yards; Churchill v. Burlington Water Co., 194 Iowa 89 (1895), water works located at a point not yet approved by local councils; Sultan \. Parker-Washington Co.. 117 ]Mo. App. 636 (1906), con- tract to lay asphalt for city held to give no license to operate a movable plant at the point where the work was being done; Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749 (1909), power company furnishing electric power to municipalities held not entitled to erect dams where they collect stagnant water, which serve as a breeding place for mosquitoes. So the defendant must show that the act which causes injury or annoyance to others is itself expressly authorized or is necessary to carry out the operations expressly authorized, it is not enough that it is a convenient or economical means for so doing, Bohan V. Port Jcrzis Gaslight Co., 122 N. Y. 18 (1890), gas company, for the sake of economy, adopted a new process which greatly increased the offensive character of its operations; Rosenheimer v. Standard Gaslight Co., 36 Anp. Div. 1 ( N. Y. 1898); Kohhe v. Nezv Brighton. 23 App. Div. 243 (1897) ; Illinois Central R. Co. v. Grahill 50 111. 241 (1869), cattle pen kept in unnecessarily filthy condition; Wylie v. Elzvood, 134 111. 281 (1890), held to be a question for the jury whether the method of unloading coal adopted by the defendant was proper; McAndrews v. Collerd, 42 N. J. L. 189 (1880), explosives, necessary to do the blasting required to construct an authorized tunnel, stored near the scene of the operation but within city limits; and compare Pennsylvania R. Co. v. Angel, 41 N. T. Eq. 316 (1886), and Pennsyl- vania R. Co. v. Thompson, 45 N. J. En. 870 (1889), with Beideman v. Atlantic Cifv R. Co., 19 Atl. 731 (N. J. Ch. 189(5") ; see also G. B. & L. R. Co. v. Eagles, 9 Colo. 544 (1886) ; Attorney-General v. Colney Hatch Lunatic Asylum, L. R. 4 Ch. App. 146 (1868), committee authorized to maintain large lunatic asylum held not justified in discharging the resulting sewage upon adjoining lands; JVcst v. Bristol Tramways Co., L. R. 1908, 2 K. B. 14. ante, p. 593, n. 1; Ogston V. Aberdeen District Tramzvavs, L. R. 1897, A. C. Ill; Alliance &c. Gas Co. V. Dublin, 1 Irish R. 492 (1901). This applies also to public works executed under legislative authority by a municipality, Morton V. New York, 140 N. Y. 207 (1893), Winona v. Botzet, 169 Fed. 321 (1909); but see Miller v. Webster City, 94 Iowa 162 (1895). Where the power of eminent domain is given to those executing the au- thority, it is suggested in Towaliga Falls Co. v. Sims, and Morton v. Mayor, 140 \. Y. 207 (1893), that if the structure or its operation is one necessarily injurious to adjacent property, destructive of the reasonable comfort or health of its occupants, all the lands likely to be injuriously affected should 1):' acouired bv condemnation. 1-538 SAWYER V. DAVIS. POTTSTOWN GAS COMPANY v. ^lURPHY. Supreme Court of Pennsylvania, 1861. 39 Pa. 257. LowRiE, C. J. (After approving the instructions of the court, under which the jury had found that the stench from the defendants' gas works and the percolation of offensive matter from them to the plaintiff's well were a nuisance.) But the defendants think that as a corporation, authorized by statute to carry on this business, and to purchase in fee simple such real estate as may be necessary for it, they are not answerable for such consequential damages as are com- plained of here. We cannot adopt this view. Xo such exemption is involved in the fact of incorporation, nor in the privilege of buy- ing land. The principle they invoke applies only where an incorpo- ration, clothed Avith a portion of the state's right of eminent domain, takes private property for public use on making compensation, and where such damages are not part of the compensation required. Judgment affirmed.^ Strong, J., dissented. SAWYER V. DAVIS. Supreme Judicial Court of Massachusetts, 1884. 136 Mass. 239. C. Allex, J. Nothing is better established than the power of the legislature to make what are called police regulations, declaring in what manner property shall be used and enjoyed, and business carried on, with a view to the good order and benefit of the com- munity, even although they may to some extent interfere with the full enjoyment of private property, and although no compensation is given to a person so inconvenienced. Bancroft v. Cambridge, 126 Mass. 438, 441. In most instances, the illustrations of the proper exercise of this power are found in rules and regulations restrain- ing the use of property by the owner, in such a manner as would cause disturbance and injury to others. But the privilege of con- tinuing in the passive enjoyment of one's own property, in the same manner as formerly, is subject to a like limitation; and with the in- crease of population in a neighborhood, and the advance and de- velopment of business, the quiet and seclusion and customary en- joyment of homes are necessarily interfered with, until it becomes a question how the right which each person has of prosecuting his lawful business in a reasonable and proper manner shall be made ^Accord: Hauck v. Tidewater Pipe Line, 153 Pa. St. 366; Rogers v. Phila. Traction Co.. 182 Pa. St. 473 (1897). See Schopp v. St. Louis, 117 Mo. 131 (1893), holding that no immunity attaches to a license granted not for the public good but for the benefit of the licensee; and compare Jones v. Sanitary District of Chicago, 252 111. 591 (1912), holding that legislative au- thority to a sanitary district gave immunity for only those the works for which compensation had been paid or secured, with Boothby v. AndroscoQ' gin &c. R. Co., 51 Maine 318 (1863). SAWYER V. DAVIS. 1 339 consistent with the other right which each person has to be free from unreasonable disturbance in the enjoyment of his property. MerriHeld v.' Worcester, no Mass. 216, 219. In this conflict of rights, pohce regulations by the legislature find a proper office in determining how far and under what circumstances the individual must yield with a view to the general good. It is ordinarily a proper subject for legislative discretion to de- termine by general rules the extent to which those who are engaged in customary and lawful and necessary occupations shall be required or allowed to give signals or warnings by bells or whistles, or other- wise, with a view either to the public safety, as in the case of rail- roads, or to the necessary or convenient operation and management of their own works ; and ordinarily such determination is binding upon the courts, as well as upon citizens generally. And when the legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid, upon the ground that the legislature is ordinarily the proper judge of what the public good requires, un- less carried to such an extent that it can fairly be said to be an un- wholesome and unreasonable law. Bancroft v. Cambridge, 126 Mass. 441. It is accordingly held in many cases, and is now a well- established rule of law, at least in this commonwealth, that the inci- dental injury which results to the owner of property situated near a railroad, caused by the necessary noise, vibration, dust, and smoke from the passing trains, which would clearly amount to an action- able nuisance if the operation of the railroad were not authorized by the legislature, must, if the running of the trains is so authorized, be borne by the individual, without compensation or remedy in any form. The legislative sanction makes the business lawful, and de- fines what must be accepted as a reasonable use of property and exercise of rights on the part of the railroad company, subject al- ways to the qualification that the business must be carried on with- out negligence or unnecessary disturbance of the rights of others. And the same rule extends to other causes of annoyance which are regulated and sanctioned by law. The recent case of Baltimore & Potomac Railroad v. Fifth Baptist Church, 108 U. S. 317, is strongly relied on by the defend- ants as an authority in their favor. There are, however, two mate- rial and decisive grounds of distinction between that case and this. There the railroad company had only a general legislative authority to construct works necessary and expedient for the proper comple- tion and maintenance of its railroad, under which authority is as- sumed to build an engine-house and machine-shop close by an exist- ing church, and it was held that it was never intended to grant a li- cense to select that particular place for such works, to the nuisance of the church. Moreover, in that case, the disturbance was so great as not only to render the church uncomfortable, but almost unendurable as a place of worship, and it virtually deprived the owners of the use and enjoyment of their property. We do not understand that it was intended to lay down, as a general rule applicable to all cases of comparatively slight though real annoyance, naturally and neces- 1340 SAWYER 7'. DAVIS. sarily resulting in a greater or less degree to all owners of propert}' in the neighborhood from a use of property or a method of carry- ing on a lawful business which clearly falls within the terms and spirit of a legislative sanction, that such sanction will not affect the claim of such an owner to relief ; but rather that the court expressly waived the expression of an opinion upon the point. In this Commonwealth, as well as in several of the United States and in England, the cases already cited show that the question is settled by authority, and we remain satisfied with the reasons upon which the doctrine was here established. Courts are compelled to recognize the distinction between such serious disturbances as ex- isted in the case referred to, and comparatively slight ones, which differ in degree only, and not in kind, from those suffered by others in the same vicinit3\ Slight infractions of the natural rights of the individual may be sanctioned by the legislature under the proper exercise of the police power, with a view to the general good. Grave ones will fall within the constitutional limitation that the legis- lature is only authorized to pass reasonable laws. The line of dis- tinction cannot be so laid down as to furnish a rule for the settlement of all cases in advance. The difficulty of marking the boundaries of this legislative power, or of prescribing limits to its exercise, was declared in Commonzvealth v. Alger, 7 Cush. 53, 85, and is uni- versally recognized. Courts, however, must determine the rights of parties in particular cases as they arise ; always recognizing that the ownership of property does not of itself imply the right to use or enjoy it in every possible manner, without regard to correspond- ing rights of others as to the use and enjoyment of their property ; and also that the rules of the common law, which* have from time to time been established, declaring or limiting such rights of use and enjoyment, may themselves be changed as occasion may require. Munn V. Illinois, 94 U. S. 113, 134. In the case before us, looking at it for the present without re- gard to the decree of the court in the former case between these parties, we find nothing in the facts set forth which show that the statutes relied on as authorizing the plaintiffs to ring their bell (St. 1883, c. 84) should be declared unconstitutional. It is virtually a license to manufacturers, and others employing workmen, to carry on their business in a method deemed by the legislature to be con- venient, if not necessary, for the purpose of giving notice, by ring- ing bells, and using whistles and gongs, in such manner and at such times as may be designated in writing by municipal officers. The defendants, however, contend that a different question arises in the present case, where the plaintiffs rely upon a legislative sanction given to acts after it had been determined by this court that the doing of them was attended with a peculiar injury to the defendants, which entitled them to a remedy as for a nuisance. There can be no doubt that such sanction would be a good defence to an indictment for a nuisance ; or to a proceeding instituted by an individual, whose only grievance was that he had sustained special damage in consequence of being disturbed in the enjoyment of some SAWYER V. DAVIS. 1 34 1 public right, such as a right to travel upon a highway or river. His public right may clearly be regulated and controlled by the legisla- ture, after a decision by the court as well as before. Commomvealth v. Essex Co., 13 Gray, 239, 247. But the argument is urged upon with great force, that in the present case there had been a judicial determination that the ringing of the bell, at the hours now author- ized by the terms of the* statute and the designation of the select- men, was a private nuisance to the defendants, not growing out of any public right, and that the statute ought not, as a matter of con- struction, to be held applicable to this case ; or, if such is its neces- sary construction, that it is unconstitutional, as interfering with their vested rights. In the first place, we can have no doubt that the statute by its just construction is in its terms applicable to the present case. It is undoubtedly true that neither a general authority nor a particular license is to be so construed as to be held to sanction what was not intended to be sanctioned. A general authority is not necessarily to be treated as a particular license ; Commomvealth v. Kidder, 107 Alass. 188 ; and in some cases, even where a particular license or authority has been given, as to keep an inn, alehouse, or slaughter- house in a particular place, which is specified, this authority has not been deemed to sanction the keeping of it in an improper manner. Rex V. Cross, 2 C. & P. 483. Commonwealth v. McDonough, 13 Allen, 581, 584. State v. Mullikin, 8 Blackf. 260. United States v. Elder, 4 Cranch. C. C. 507. And, ordinarily, a statute which au- thorizes a thing to be done, which can be done without creating a nuisance, will not be deemed to authorize a nuisance. In such case, it is not to be assumed that it was contemplated by the legislature that what was so authorized would have the necessary effect to create a nuisance, or that it would be done in such a manner as to create a nuisance ; and, if a nuisance is created, there will in such cases ordinarily be a remedy at law or in equity. Eames v. N'ew England Worsted Co., 11 Met. 570. Haskell v. Neio Bedford, 108 Mass. 208, 215. Commomvealth v. Kidder, 107 Mass. 188. But, on the other hand, the authority to do an act must be held to carry with it whatever is naturally incidental to the ordinary and reason- able performance of that act. When the legislature authorized fac- tory bells to be rung, it must have been contemplated that they would be heard in the neighborhood. That is a natural and in- evitable consequence. The legislature must be deemed to have de- termined that the benefit is greater than the injury and annoyance ; and to have intended to enact that the public must submit to the disturbance, for the sake of the greater advantage that would result from this method of carrying ort the business of manufacturing. It must be considered, therefore, in this case, that a legislative sanc- tion has been given to the very act which this court found to create a private nuisance. It is then argued that the Legislature cannot legalize a nuisance, and cannot take away the rights of the defendants as they have been ascertained and declared by this court ; and this is undoubtedly 1342 SAWYER V. DAVIS. true, so far as such rights have become vested. For example, if the plaintiff under an existing rule of law has a right of action to re- cover damages, for a past injury suffered by him, his remedy can- not be cut off by an act of the legislature. But, on the other hand, the legislature may define what in the future shall constitute a nui- sance, such as will entitle a person injured thereby to a legal or equitable remedy, and may change the existing common-law rule upon the subject. It may declare, for the future, in what manner a man may use his property or carry on a lawful business without being liable to an action in consequence thereof ; that is, it may de- fine what shall be a lawful and reasonable mode of conduct. This legislative power is not wholly beyond the control of the courts, be- cause it is restrained by the constitutional provision limiting it to wholesome and reasonable laws, of which the court is the final judge ; but, within this limitation, the exercise of all the police power of the legislature will apply to all within the scope of its terms and spirit. The fact that the rights of citizens, as previously existing, are changed, is a result which always happens ; it is indeed in order to change those rights that the police power is exercised. So far as regards the rights of parties accruing after the date of the statute, they are to be governed by the statute ; •. leir rights existing prior to that date are not affected by it. To iimstrate this view, let it be supposed that the case between the present parties in its original stage has been determined in favor of the manufacturers, under which decision they would have had a right to ring their bell ; and that afterwards a statute had been passed providing that manufac- turers should not ring bells except at such hours^as might be ap- proved by the selectmen ; and that these manufacturers had then proceeded to ring their bells at other hours, not included in such approval. It certainly could not be said that they had vested a right to do so, under the decision of the court. The injunction which was awarded by the court, upon the facts which appeared at the hearing, did not imply a vested right in the present defendants to have it continued permanently. . Though a final determination of the case before the court, and though binding and imperative upon the present plaintiffs, and enforceable against them by all the powers vested in a court of equity, yet they were at liberty at any time, under new circumstances making it inequitable for it to be longer continued, to apply to the court for a review of the case and a dissolution of the injunction. Demurrer overruled.^ ^Accord: Murtha v. Lovewell, 166 Mass. 391 (1896), injunction refused against persons melting iron under license from mayor and aldermen; Leznn V. Goodwin, 191 Mass. 341 (1906), licensed bowling alley causing only such noise, while considerable and annoying to neighbors, as is incident to such alley properly operated. But the legislature may "authorize small nuisances without compensation not great ones." Bacon v. Boston, 154 Mass. 100 (1891), serious disturbance of adjacent owner's enjoyment of his premises by offensive odors and percolation of filthy matter, caused by the city's opera- tion under statutory power of a sewage disposal plant, while not a taking of the land for which compensation was recoverable under the statute, was ac- SAWYER V. DAVIS. 1343 tionable in an action of tort, see Ganster v. Met. Elec. Co., 214 Pa. 628 (1906), and Baltimore & Potomac R. Co. v. Church, 108 U. S. 317 (1883), and Shively v. Cedar Rapids &c. R. Co., 74 Iowa 169 (1887). In Cohen v. Rit- tirmann, 139 S. W. 59 (Tex. Civ. App. 1911), it is held that a municipal hcense under legislative power will not give right to carry on a business endangering the lives, health or property of its citizens ; see also Towaliga Falls Power Co. v. Sims, 6 0a. App. 749 (1909), doubting the power of the legislature to "authorize the doing of a thing whjch in its nature would tend to destroy or materially impair the morals, the health or the safety of the people." Part 3 The Effect of the Plaintiff's Fault as a Bar to Re- covery for Injury Caused in Part Thereby. VIRTUE V. BIRDE. Court of King's Bench, 1677. 2 Lev. 196. Case, that whereas the defendant had hired him to carry a load of tim- ber from Woodbridge to Ipswich to be laid there at anj' place the defendant should appoint, and that he gave notice to the defendant that he would carry it such a day, and requested the defendant at Woodbridge to appoint where it should be laid, and that accordingly he carried it to Ipswich, and that the defendant appointed no place where it should.be laid, but made the horses of the plaintiff being hot stay so long in the cart, that they took cold, whereby some of them died, and the rest were spoiled. And after verdict for the plaintiff upon non ciilp., judgment was staid; because the action lies not. For, 1. he might have taken his horses out of his cart, aiad have walked them up and down, or put them into the stable; 2. As soon as he came there, and found no place appointed by the defendant, he might have unladen the timber in any convenient place, and returned. And therefore the injury which the horses received is owing to himself, and through his own default. WARD V. AYRE. Court of King's Bench, 1615. Cro. Jac. 266. Trespass of assault and batter^-, etc., quod cumulum pecuniae, contain- ing five marks, cepit, etc. The case was : The plaintiff and defendant being at play, the plaintiff thrust his money into the defendant's heap and mixed it, and the defendant kept it all; whereupon (they striving for the money) plaintiff brought this action. The whole Court were of opinion, in regard the plaintiff's own money cannot be known, and this his intermeddling is his own act and his own wrong, that by the law he shall lose all ; for, if it were otherwise, a man might then be made to be trespasser against his will, by the taking of his own goods; therefore, to avoid that inconvenience, the law will justify the defendant's detaining of all : and so it is of an heap of corn voluntarily in- termingled with another man's. Whereupon the rule of the Court was, quod querens nihil capiat per billant. Lord Kenyon, C. J., in Paslcy v. Freeman, 3 Term Rep. 51 (1788) 1344 CRUDEN Z'. FENTHAM. 1345 "Undoubtedly where the common prudence and caution of man are sufficient lo guard him the law will not protect him in his negligence.'" CHAPTER I. The Plaintiff's Deliberate Choice to Encounter a Known Risk Created by the Defendant. CRUDEN 7'. FEXTHAM. Court of King's Bench, at Xisi Prius, 1799. 2 Espinasse's R. 685. This was an action for negligently driving the defendant's chaise, by which the plaintiff's horse was killed. The case in evidence was, the defendant was returning to town in a one- horse chaise, with his family, from looting in Surry. He was driving on the wrong side of the load. The plaintiff's servant was on horseback, going from London. The road was of very considerable breadth, so that the serv- ant could have passed without any difficulty ; but he, without any reason, but conceiving it to be the right of the road, crossed over to the side where the chaise was driving, that being the right side of the road ; and endeavor- ing to pass between the chaise and the foot-way the horse was killed. Lord Kenyon, in summing up to the jury, told them, that what was called the law of the road was introduced for general convenience : That where carriages were driving on a narrow road, or where accidents might happen, it ought to be adhered to; and in driving at night the rule ought to be strictly adhered to, and never departed from, as it was the only mode by which accidents could be avoided : But he thought that where the road was sufficiently broad for all persons and carriages to pass, though a carriage might be driving on the wrong side of the road, if there was sufficient room for other carriages and horses to pass on the other, a person was not justi- fied in crossing out of the way, in order to assert what he termed the right of the road. It was putting himself voluntarily into the way of danger, and the injury was of his own seeking. That seemed to be the case here: but the jury were to be of that opinion; if they thought otherwise they would find for the plaintiff. The jury found a verdict for the plaintiff. Erskine and for the plaintiff. Garrow for the defendant. A rule was afterwards obtained for a new trial. In Easter term it came on, when the Lord Chief Justice delivered himself in nearly the same terms; but added, that after the finding of the jury, as it was a question of public convenience, the verdict had better rest as it was. New trial refused. " See also, the cases and notes in Book II, Part IV. Chapter 1 (d). 1346 CLA YARDS V. DETHICK. CLAY V. WOOD. Court of King's Bench, at Nisi Prius, 1803. 5 Espinasse's R., 44. This was an action on the case, for negligently driving a chaise against a certain horse of the defendant's, on which the plaintiff's servant then rode, by which he had his thigh broke; in consequence of which he died. The facts were, that the plaintiff's servant was riding on the wrong side of the road; but near the middle of it. The defendant was the owner of a chaise, then driven by his servant, coming out of another road, and crossing the road over to that side of the road on which the servant was riding, which was the proper side of the road for the defendant. In so crossing over, the shaft of the chaise struck the horse in the thigh, and broke it. The defendant's counsel replied. That it was the duty of the servant to have kept on his proper side; and that the accident being occasioned by his being so out of his place, the defendant was not liable. Lord Ellenborough said. That the circumstance of the person being on the wrong side of the road was not sufficient to discharge the defendant ; for though a person might be on his wrong side of the road, if the road was of sufficient breadth, so that there was full and ample room for the party to pass, he was of opinion he was bound to take that course which should carry him clear of the person who was on his wrong side: and that if any injury happened, by running against such person, he would be answerable. A per- son being on his wrong side of the road could not justify another in wan- tonly doing an injury, which might be avoided. Theijuestion therefore to be left to the jury was. Whether there was such room, that though the plain- tiff's servant was on his wrong side of the road, there was sufficient room for the defendant's carriage to pass between the plaintiff's horse and the other side of the road? If they were of opinion that there was, the plain- tiff was entitled to recover. Verdict for the plaintiff. CLAYARDS v. DETHICK. Court of Queen's Bench, 1848. 12 Q. B. (N. S.) 439. On the trial before Lord Denman, C. J., it appeared that the plaintiff was the proprietor of a livery stable at Gower Mews. The Mews communicated with the street by a passage and had no other outlet. The defendant, acting under the orders of the Commissioner of Sewers, was deepening the sewer in Gower street, for this pur- pose they made an open trench which obstructed the passage except for a space of four feet on one side and t\yo and a half feet on the other. Before the day on which the accident happened the commis- sioners had given notice to the owners of stables in the Mews that the trench would remain open for a few days and that they must put up with it and had advised them to get other stables. On the day of the accident excavators had thrown earth from the trench unavoidably, as was represented by the defendants, upon CLAYARDS V. DETHICK. 1347 the four foot space and to the heigjhth of four feet. The plaintiff was bringing one of his horses out of the Mews and was about to put planks over the trench when one of the defendants said he would not be answerable for anything that happened in taking the horse over in that manner. The plaintiff then asked how he was to do it, and said he must get the horse out. The defendant said, "Take him out on the other side (where the earth had been thrown) and I will be answerable." The plaintiff with assistance led the horse out. A little later the plaintiff* tried to get another horse out in the same way but the horse fell into the trench and was killed. There was evidence on the part of the defendant that on the second occasion their men cautioned the plaintiff not to make the attempt, that he would not only endanger his horse but the lives of the men in the trench, but he said he would go over. This statement was denied on the part of the plaintiff. The Lord Chief Justice in summing up observed "that, if the defendants' witnesses were to be believed, and the plaintiff on the second occasion had, in defiance of warning, incurred an evidently great danger, this was a rashness on his part which would excuse the defendants : but that it could not be the plaintiff's duty to re- frain altogether from coming out of the mews merely because the defendants had made the passage in some degree dangerous : that the defendants were not entitled to keep the occupiers of the mews in a state of siege till the passage was declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger: though, if the plaintiff had persisted in running upon a great and obvious danger, his action could not be mamtained. And he left it to the jury to say whether or not the plaintiff had so acted. Verdict for plaintiff : damages £20. Miller, in Trinity term, 1847, nnoved for a new trial on the ground of misdirection. He contended that the plaintiff here com- mitted such fault by attempting to bring his horse out of the mews, if the passage was at all dangerous ; and that, instead of incurring danger even if it had been slight, he should have kept his horse in the stable, and brought an action, if necessary, for the obstruction. (Lord Denman, C. J. I thought the plaintiff might be justified in incurring a moderate danger, and that the facts proved as to the first coming out shewed it to be no more.) A rule nisi was granted. Knozvles and Corrie now showed cause. The Lord Chief Jus- tice left to the jury, substantially, whether the plaintiff was in fault at all. And he was not. He could not afford to keep his horse at home. (Coleridge J. If the horse w-as wrongfully detained at home, an action lay for that.) Miller, contra. Here the plaintiff had an obvious danger before him, and was not justified in encountering it to avoid a delay. For that he might have had a legal remedy : if he chose rather to incur a danger, he might do so, but not at the cost of the defendants. If an extraordinary emergency had arisen, as a fire, the case might have been different. (Patteson J. Suppose the horse had been coming home ; must he have been kept out of the stable till the 1348 ' CLAYARDS V. DETIIICK. entrance was pronounced safe?) The plaintiff mio^ht have placed the horse at livery and brought an action for the keep. Patteson, J. The question arises on the declaration ; because it is there said that the defendants made the trench, and laid rub- bish, and neglected to fence, and that "by means of the premises" the plaintiff's horse fell and was killed. The averment, "by means of the premises," becomes parcel of the issue on Not guilty. And, such being the issue, we are to say whether it was properly left to the jury. Now the defendants had clearly no right to leave a trench open in the passage to this mews without a proper fence, and, having done so, to tell the plaintiff "you shall keep your horse in the stable till we inform you that you may remove him." But whether or not the plaintiff contributed to the mischief that hap- pened by want of ordinary caution, is a question of degree. If the danger was so great that no sensible man would have incurred it. the verdict must be for the defendants : and the case was rightly put to the jury as depending on this question. The plaintiff here had passed safely in the afternoon over the place at which the acci- dent happened. According to the evidence for the defendants, he was told, on attempting to pass in the evening, that he could not do it without danger to himself and the men below. The jury, however, do not appear to have believed this statement. The whole question was, whether the danger was so obvious that the plaintiff could not with common prudence make the attempt. That was properly put to the jury ; and they have found for the plaintiff. Coleridge J. The plaintiff was not boufid to abstain from pur- suing his livelihood because there was some danger. It was neces- sary for the defendants to shew a clear danger and a precise warn- mg. Whether these facts existed or not, was for the consideration of the jury; and if the jury disbelieved them, the plaintiff was en- titled to the verdict. Lord Denman C. J. The case was complicated ; and there was contradiction on almost every point. I have no doubt that I left it to the jury to say whether the plaintiff had used ordinary care ; for I always leave cases of the kind in that manner. I certainly told the jury that the plaintiff was not bound to keep his horse back un- less the danger was imminent : and I believe they gave credit to the plaintiff's evidence, and not to the evidence for the defendants. Rule discharged.^ ^Compare Pomeroy v. Wcstfield, ante, p. 22)7, and cases cited in the note thereto. See also, Lord Bramwell's vigorous criticism of the principal case in Lax V. Darlington, L. R. 5 Ex. Div. 28 (1879); p. 35, and in some observations printed in Horace Smith on Negligence, 2nd Ed., Appendix B., p. 275. For the decisions on the somewhat similar case of a passenger on a rail- way train, who being confronted with the real or apparent alternatives of being carried beyond his station or alighting while the train is in motion, chooses the latter, see cases cited in note 3 to Osborne v. London etc. R. Co., ante, page 344. HARDING V. PHILA. RAPID TRANS. CO. 1349 HARDING V. PHILA. RAPID TRANSIT CO. Supreme Court of Pennsylvania, 1907. 217 Pa. St. 69. Per Curiam. There was no evidence of defendant's negli- gence. The plaintiff had no recollection of the accident and the witnesses on his side who saw it only said in general terms that when the two cars passed each other the running board of the one on which plaintiff stood was crowded and several men jumped, fell or were pushed or brushed off. A witness for the defense testified that as the cars passed a man on plaintift""s car extended his hand, grasped the other car and was thrown backwards against the men behind him, including plaintiff. This is the most plausible account that was given, and apart from it there is nothing to show that plain- tiff on the approach of the car did not lose his nerve and jump or fall from the car. Under the circumstances there was no presumption of negli- gence on the part of defendant, but even if it had been clearly shown it would have been altogether immaterial. Plaintiff was rid- ing voluntarily in a place of manifest danger, and in so doing he assumed all the risks of the situation. One who takes a position of manifest and imminent danger assumes the risk of his position whether he could have got a safer place or not : Bard v. Traction Co., lyG Pa. 97; Malpass v. Pass. R. R. Co., 189 Pa. 599. It is argued by appellant that he was not warned by the con- ductor of the danger of his position. But the lowered bar was suffi- cient warning in itself. It was notice that the running board on that side was a place of danger and that passengers not expected, nor so far as the company could control the situation permitted, to use it even for the limited purpose of getting on or off the car for which the running board is intended. The alternative offered by plaintiff of having to wait for another car and thus being late in getting home is no justification. In any country than this, plain- tiff would have been forcibly prevented from getting on the car at all after the number of passengers had reached the limit of safety or even of convenience. To attempt the enforcement of such a regulation here would certainly lead to continual quarrels and breaches of the peace. A reasonable amount of concession, there- fore, to the American's impatience of control and confidence in his own ability to take care of himself should not be visited with pun- ishment by the infliction of penalties on the company for the pas- senger's own fault. It must be definitely recognized that one who undertakes to ride on the running board outside of a lowered bar, is negligent per se and can not recover for injuries incident to hi?, position, whether he could have got a safer position or not. Judgment affirmed.^ ^ See however, Watson v. Portland etc. Ry. Co., and Cattano v. Metro- politan Street R. Co., cited in note 2 to Southwick v. Hall and Upson Co., ante. I35O- TAYLOR V. HOME TELEPHONE CO, ECKERT V. LONG ISLAND RAILROAD CO.^ ante, page 345. LIMING V. ILLINOIS CENTRAL RAILWAY COMPANY/ ante, page 348. TAYLOR V. HOME TELEPHONE CO. Supreme Court of Michigan, 1910. 163 Mich. 458. It is alleged in the declaration and proved by the evidence that the defendant company had negligently removed the service cock from a city water main and that as a consequence water was forced into the open second story window of a building into apartments of which the plaintiff was the caretaker. In attempting to close the window the plaintiff was knocked down. by the force of the stream of water and her clothing was soaked, as a consequence giv- ing her a severe cold and rheumatism. The court directed a verdict for the defendant and judgments were entered thereon. The case presents the question whether, con- ceding the defendant to have been negligent, the plaintiff is entitled to the verdict of the jury. OsTRANDER, J. (after stating the facts). The plaintiff's act was voluntary, the wetting she got was inevitable. Did she, as de- fendant contends, assume all the consequences of the wetting, what- ever they might be? The principle expressed in the maxim, "'Volenti non at injuria," is subject to qualifications, which are sometimes stated as qualifications of the rule, but are quite as often recognized as rules in determining the proximate cause of an injury and the ^Accord: Dixon v. New York, N. H. & H. R. Co., 207 Mass. 126 (1910). ^ In addition to the cases cited in the notes ante, see accord: Pullman Palace Car Co. v. Laack, 143 111. 242 (1892); Pcnna. Co. v. McCaffrey. 139 Ind. 430 (1894); Louisville &c. R. Co. v. Seihert. 21 Ky. L. 1603 (1900); Winczewski v. Winona & IV. R. Co., 80 Minn. 245 (1900) ; Dailcv v. Burling- ton & M. etc. R. Co., 58 Nebr. 396 (1899) ; Texas Central R. Co. v. Bender, 32 Tex. Civ. App. 568 (1903) ; Kelley v. Chicago, M. & St. P. R. Co., 50 Wis. 381 (1880) ; Fisher v. Chesapeake & Ohio R. Co., 104 Va. 635 (1905). But if the injury threatened to the property, in this case of the plaintiff's employer, be slight and the risk to the plaintiff great, he can not recover, Judkins v. Maine Cent. R. Co., 80 Maine 417 (1888). Contra, Condiff v. Kansas City, Ft. S. & G. R. Co., 45 Kans. 256 (1891) ; Eversole v. Wabash R. Co., 249 Mo. 523 (1913) ; Morris v. Lake Shore & M. S. R. Co., 148 N. Y. 182 (1S96) ; Malthie v. Belden, 167 N. Y. 307 (1901) ; Scale V. Gulf, C. & S. F. R. Co., 65 Tex. 274 (1886). In Chattanooga Light &■ Power Co. v. Hodges, 109 Tenn. 331 (1902), the court, while refusing to decide between the two views, held that the defendant could not have con- templated that the plaintiff would return to his master's burning building in an effort to communicate with him by the telephone therein and so even if the fire was started by the defendant's negligence, such negligence was not the proximate cause of the plaintiff's negligence. CAMPBELL V. SEAMAN. 1 35 I contributory negligence of the injured person. Courts have fre- quently refused to so apply the principle as to deny to one who has at actual risk of injury sought to save property or a person from damage or destruction the right to recover damages. A valuable collection of authorities appears in the notes to Fisher v, Raihvay Co. (Va.), 2 L. R. A. (N. S.) 954. See also, i Thompson on Law of Negligence, § 185 ct seq. In Cook V. Johnston, 58 Mich. 437 (25 N. W. 388, 55 Am. Rep. 703), the plaintiff entered a burning shed to release a horse belonging to her husband and was burned. Under the circumstances, and as matter of law, the right to recover was denied. In these, as in all of the cases which have been examined, there was, or was supposed to be, a chance, more or less probable, of es- caping any direct consequences of defendant's negligence. In the case at bar no such chance existed or could have been supposed to exist. May the plaintiff say that the consequences other than a mere wetting were not anticipated by her, and therefore the peril of them was not assumed, and at the same time insist that they were the direct result of defendant's negligence — of the single oc- currence — and defendant must respond in damages ? We are of the opinion that she may not do so, and that the maxim referred to must be applied. CAMPBELL et al. v. SEAMAN. Court of Appeals of New York, 1876. 63 N. Y. 568. The action was brought to recover damages resulting from de- fendant's use of his land as a brick kiln for the manufacture of bricks, which was alleged to be a nuisance by reason of the sulphur- ous acid gas required therefor, and to restrain the continuance of such nuisance. Earle, J. (After determining that the brick yard as operated was a nuisance.) But every person is bound to make a reasonable use of his property so as to occasion no unnecessary damage or annoyance to his neighbor. If he make an unreasonable, unwarrant- able or unlawful use of it, so as to produce material annoyance, in- convenience, discomfort or hurt to his neighbor, he will be guilty of a nuisance to his neighbor. And the law will hold him responsi- ble for the consequent damage. As to what is a reasonable use of one's own property can not be defined by any certain general rules, but must depend upon the circumstances of each case. A use of property in one locality and under some circumstances may be law- ful and reasonable, which under other circumstances, would be un- lawful, unreasonable and a nuisance. To constit.ite a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment espe- cially uncomfortable or inconvenient. It matters not that the brick-yard was used before plaintiffs 135? LEROY FIDRH: CO. 1'. CHICAGO, M., ETC., R. CO. bought their lands or built their houses. (Taylor v. The People, 6 Parker Cr., 352; U'ier's Appeal, 74 Penn., 230; Brady v. Weeks, 3 Parb. 156; Bannvell v. Brooks, i Law Times (N. S.) 454.) One can not erect a nuisance upon his land adjoining vacant lands owned by another and thus measurably control the uses to which his neigh- bor's land may in the future be subjected. He may make a reason- able 'and lawful use of his land and thus cause his neighbor some inconvenience, and probably some damage which the law would re- gard as damnum absque injuria. But he can not place upon his land anything which the law would pronounce a nuisance, and thus compel his neighbor to leave his land vacant, or to use it in such way only as the neighboring nuisance will allow. ^ LEROY FIBRE CO. r. CHICAGO, M. & ST. P. R. CO. Supreme Court of the United States, 1914. 232 U. S. 340. The LeRoy Fibre Company brought an action against defendant in a state court of Minnesota to recover the' value of certain flax straw alleged to have been negligently burned and destroyed by de- fendant* The cause was removed to the circuit for the district of Minnesota, where it was tried. One of the grounds of negligence set forth was that a locomotive engine of defendant, while passing the premises of plaintiff, was so negligently managed and operated by de- * Though Blackstone in his commentaries, Vol. 2, 403, stated that "if my neighbor makes a tan-yard, so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if lie is first in possession of the air, and I fix my habitation near him, the nui- sance is my own seeking and may continue" ; the view expressed in the prin- cipal case was adopted in Bam ford v. Tuntley, 3 B. & S. 62 (1862), and St. Helens Smelting Co. v. Tipping, 11 H. L. C. 642 (1865). Accord: Bliss v. Hall, 4 Bing. New Cas. 183 (1838) : Cnwip v. Lambert, L. R. 3 Eq. 409 (1867) ; Hurlbut v. McKonc. 55 Conn. 31 (1887) : Laflin & Rand Pozvder Co. v. Tearncv, 131 111. 322 (1890) ; Baker v. Leka, 48 III. App. 353 (1892); Bushnell v. Robeson, 62 Iowa 540 (1883); Susquehanna ferti- liser Co. V. Malone, IZ Md. 268 (1890); Baltimore v. Fairfield Co., 87 :Md. 352 (1898) ; O'Brien v. St. Paul, 18 ^linn. 176 (1872) ; King v. Morris & E. R. Co., 18 N. J. Eq. 397 (1867) ; Bradv v. Weeks. 3 Barb. 157 (N. Y. 1848) ; Dallas V. Ladies Art Club. 4 Pa. Co. Ct. Rep. 340 (1887) ; City of Sherman v. Langham, 13 S. W. 1042 (Supreme Ct. of Texas 1890) ; and see Wier's Appeal, 74 Pa. 230 (1873). In some of these cases the plaintiff purchased the property after the erection of the defendant's nuisance, in others he there- after devoted his land to new uses to which only was the defendant's conduct injurious. The plaintifif may, however, so far encourage the defendant in erecting the nuisance or acquiesce in his expending money in its erection as to lose his right to either equitable or legal relief, Hu)itington and Kenova Land Development Co. v. Phoeni.v Poivdcr Mfg. Co., 40 W. Va. 711 (1895) and cases cited therein ; where the plaintifif company believing that the erection of the defendants' plant in its tract would aid its development, induced it to purchase part of its tract and build a mill, but afterwards finding the mill was a detriment and not an advantage to their remaining land, sought to en- join the mill as a nuisance; see also, Chaffee v. Telephone Co., 77 Mich. 625 (1889), and Alexander v. Kerr, 2 Rawle 83 (Pa. 1828). I LEROY FIBRE CO. V. CHICAGO, M., ETC., K. CO. 1 353 fendant's employees that it emitted and threw sparks and coal of unusual size upon the stacks of flax straw, and thereby set Are to and destroyed them. The evidence at the trial showed the following- facts : Some years after the defendant had constructed its line, the plaintitt es- tablished a factory for the manufacture of tow from flax straw. Upon its land, adjoining its factory and abutting on the defendants' right of way, it stored flax straw in parallel rows of stacks, the nearest some seventy-five feet, the other eighty-five feet, from the center of the right of way. There was some substantial evidence tending to show that a live cinder was emitted by a negligently operated engine of the defendant and carried by a high wind, then prevailing, into contact with one of the farther rows of stacks, which, being highly inflammable, it ignited. It was contended at the trial by the defendant, that plaintiff itself was negligent, and that its neg- ligence contributed to the destruction of its property. There was no evidence that plaintiff was negligent save that it had placed its property of an inflammable character upon its own premises so near the railroad tracks, that is to say, the first row of stacks, 70 or 75 feet, and the second row, in which the fire started, about 85 feet from the center of the railroad track. In other words, the character of the property and its proximity to an operated railroad, for which plaintiff was responsible, was the sole evidence of plaintiff's con- tributory negligence.. The trial court charged the jury that though the destruction of the straw was caused by defendant's negligence, yet if the plain- tiff, in placing and maintaining two rows of stacks of flax straw within a hundred feet of the center line of the railroad, failed to exercise that ordinary care to avoid danger of firing its straw from sparks from engines passing on the railroad that a person of or- dinary prudence would have exercised, under like circumstances, and that the failure contributed to cause the accident, the plaintiff could not recover. The trial court also submitted two questions to the jury, as follows: "i. Did the Fibre Company, in placing and keeping t\vo rows of flax straw within 100 feet of the center line of the railroad, fail to use the care to avoid danger to its straw from sparks of fire from engines operating on that railroad, that a person of ordinary pru- dence would have used under like circumstances? 2. Did the en- gineer McDonald fail to use that degree of care to preveijt sparks from his engine from firing the stacks as he passed them, on April 2, 1907, that a person of ordinary prudence would have used under like circumstances? "The jury answered both questions in the afiirmative and found a general verdict for the defendant. Judgment was accordingly entered for defendant. The plaintiff duly saved exceptions to the charge of the court regarding its contributory, negligence and to the submission of the first question to the jury, and has assigned the action of the court as error." Mr. Justice McKenna delivered the opinion of the court ; 1354 LEROY FIBRE CO. V. CHICAGO, M., ETC., R. CO. The questions certified^ present two facts — (i) The negh- gence of the railroad was the immediate cause of the destruction of the property. (2) The property was placed by its owner near the right of way of the railroad, but on the owner's own land. The query is made in the first two questions whether the latter fact constituted evidence of negligence of the owner, to be submitted to the jury. It will be observed, the use of the land was of itself a proper use, — it did not interfere with nor embarrass the rightful operation of the railroad. It is manifest, therefore, the questions certified, including the third question, are but phases of the broader one, whether one is limited in the use of one's property by its prox- imity to a railroad ; or, to limit the proposition to the case under review, whether one is subject in its use to the careless as well as to the careful operation of the road. We might not doubt that an immediate answer in the negative should be given if it were for the hesitation of the circuit court of appeals, evinced by its questions, and the decisions of some courts in the affirmative. That one's uses of his property may be subject to the servitude of the wrong- ful use by another of his property seems an anomaly. It upsets the presumptions of law, and takes from him the assumption, and the freedom which comes from the assumption, that the other will obey the law, not violate it. It casts upon him the duty of not only using his own property so as not to injure another, but so as to use his own property that it may not be injured by the wrongs of another. How far can this subjection be carried? Or, confining the question to railroads, what limits shall be put upon their im- munity from the result of their wrongtul operation? In the case at bar, the property destroyed is described as inflammable, but there are degrees of that quality ; and how wrongful must be the opera- tion? In this case, large quantities of sparks and "live cinders" were emitted from the passing engine. Houses may be said to be inflammable, and may be, as they have been, set on fire by sparks and cinders from defective or carelessly handled locomotives. Are ^ The following questions were certified : "1. In an action at law by the owner of a natural product of the soil, such as flax straw, which he lawfully stored on his own premises, and which was destroyed by fire caused by the negligent operation of a locomotive en- gine, to recover the value thereof from the railroad company operating the engine, is it a question for the jury whether the owner was also negligent, without other evidence than that the railroad company preceded the owner in the establishment of its business, that the property was inflammable in character, and that it was stored near the railroad right of way and track? "2. Is it a question for the jury whether an owner who lawfully stores his property on his own premises adjacent to a railroad right of way and track is held to the exercise of reasonable care to protect it from fire set by the negligence of the railroad company, and not resulting from unavoidable accident or the reasonably careful conduct of its business? "3. As respects liability for the destruction by fire of property lawfully held on private premises adjacent to a railroad right of way and track, does the owner discharge his full legal duty for its protection if he exercises that care which a reasonable prudent man would exercise under like circum- stances to protect it from the dangers incident to the operation of the rail- road, conducted with reasonable care?" I LEROY FIBRE CO. V. CHICAGO, M., ETC., R. CO. 1355 they to be subject as well as stacks of flax straw, to such lawless operation ? And is the use of farms also, the cultivation of which the building of the railroad has preceded? Or is that a use which the railroad must have anticipated, and to wiiich it hence owes a duty, which it does not owe to other uses? And why? The ques- tion is especially pertinent and immediately shows that the rights of one man in the use of his property can not be limited by the wrongs of another. The doctrine of contributory negligence is en- tirely out of place. Depart from the simple requirement of the law, that every one must use his property so as not to injure others, and you pass to refinements and confusing considerations. There is no embarrassment in the principle even to the operation of a railroad. Such operation is a legitimate use of property ; other prop- erty in its vicinity may sufifer inconveniences and be subject to risks by it, but a risk from wrongful operation is not one of them. The legal conception of property is of rights. When you at- tempt to limit them by wrongs, you venture a solecism. If you declare a right is subject to a wrong, you confound the meaning of both. It is difficult to deal with the opposing contention. There are some principles that have axiomatic character. The tangibility of property is in its uses, and that the uses by one owner of his property may be limited by the wrongful use of another owner of his is a contradiction. But let us pass from principle to authority. Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L. ed. 356, was an action for damages for the destruction of a sawmill, lumber shed, and other buildings and manufactured lumber, by fire communicated by a locomotive engine of a railroad. Some of the buildings were erected in part on the company's land near its track, .and the railroad company requested the court to charge the jury that the erection of the buildings or the storing of lumber so near the company's track, as the evidence showed, was an improvident or careless act, and that if such location contributed in any degree to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by the railroad company's loco- motive. The court refused the request and its action was sustained. Mr. Justice Strong, speaking for the court, said: "Such a location, if there was a license for it, (it not then being a trespass), was a lawful use of its property by the plaintififs ; and they did not lose their right to compensation for its loss occasioned by the negligence of the defendant. Cook v. Chainplain Transp. Co., i Denio, 91 ; Fero V. Buffalo & State Line R. Co., 22 N. Y. 215, 78 Am. Dec. 178." In Cincinnati, N. O. & T. P. R. Co. v. South Fork Coal Co., I L. R. A. _(N. S.) 533, 71 C. C. A. 316, 139 Fed. 530, there was the destruction of lumber placed on the railroad's right of way by permission of the railroad. It was destroyed by fire occurring through the negligent operation of the railroad's trains. Contribu- tory negligence was urged against the right of recovery.' The court (circuit court of appeals for the sixth circuit), commenting on the cases cited by the railroad, said: "But in so far as the opinions go upon the theory that a plaintiff must lose his right of compensation 1356 LEROY FIBRE CO. V. CHICAGO, M., ETC., R. CO. for the negligent destruction of his own property, situated upon his own premises, because he had exposed it to dangers which would come to it only through the negligence of the railroad company, they do not meet our approval." After citing cases, the court continued : "The rights of persons to the use and enjoyment of their own property are held upon no such tenure as this. The principle would forbid the use of property for many purposes if in such proximity to a railroad track as to expose it to dangers attributable to the negligent management of its business."- Other cases might be adduced. They are cited in ^ See also, the very able opinion of Dixon, C. J., in Kellog v. Chicago & N. W. R. Co., 26 Wis. 223 (1870). It is usually held that a landowner does not assume ihe risk of fires from the negligent operation of adjacent railroads because he fails to remove therefrom the dry leaves, stubble, grass and other debris which accumulates in the ordinary course of nature. Vaughan v. The Taff Vale R. Co., 3 H. & X. 743 (1858) ; Flymi v. San Francisco & S. J. R. Co., 40 Cal. 14 (1870) ; Fitch v. Pacific R. Co., 45 Mo. 322 (1869) ; Salmon V. Delaware, L. & IV. R. Co., 38 N. J. L. 5 (1875) ; Philadelphia & R. R. Co. v. Schidtz, 93 Pa. 341 (1880) ; or because he stores or uses inflammable mat- ter at a point thereon adjacent to the defendant company's tracks, Kalbflcisch V. Long Island R. Co., 102 N. Y. 520 (1886), where the plaintiff was thinning down varnish with benzine outside of his building which adjoined the de- fendant's right of way; Southern R. Co. v. Patterson, 105 Va. 6 (1906), kero- sene stored in a warehouse close to the defendant's right of w^ay; Boston Excelsior Co. v. Bangor, 93 iMaine 52 (1899) ; Peter v. Chicago & W. M. R. Co., 121 Mich. 324 (1899) ; Southern R. Co. v. Wilson, 138 Ala. 510 (1903) ; Cleveland C. C. & St. L. R. Co. v. Scantland, 151 Ind. 488 (1898) ; Erickson V. Penna. R. Co., 170 Fed. 572 (1909) ; St. Louis R. Co. v. Fire Association, 5o y\rk. 163 (1891). A distinction is, however, Urawn in Murphy v. Chicago etc. R. Co., 45 Wis. 222 (1878) and Coates v. Missouri K. & T. R. Co., 61 Mo. 38 (1875), between a failure to remove inflamm.able matter accumulating natu- rally and inflammable matter artificiallv brought upon the premises, see' accord, Macon & JV. R. Co. v. McConnelt. 27 Ga. 481 (1859). with which com- pare Albany & N. R. Co. v. Wheeler, 6 Ga. App. 270 (1909). Nor does the owner who erects a building upon his premises near to the wharf of a steamboat company or the tracks of a railway company assume the risk of injury from fires started by the negligent operation of the boats or engines of such companies, Cook v. Champlain Transportation Co.. 1 Denio 91 (N. Y. 1845) ; Burke v. Louisville & N. R. Co.. 7 Heisk. 451 (Tenn. 1872) ; Jacksonville R. R. v. Peninsular Land Co., 27 Fla. 1 (1891) ; Cincin- nati N. O. & T. P. R. Co. V. Barker, 94 Ky. 71 (1893) ; Ide v. Boston & Maine R., 83 Vt. 66 (1909), nor does he assume such risk because he places a frame house on the premises, Brian t v. Detroit L. & N. R. Co., 104 Mich. 307 (1895), or fails to keep the roof in good repair, Philadelphia R. R. Co. v. Hendrickson, 80 Pa. 182 (1876). On the other hand it is sometimes held to be for the jury to say whether the plaintiff is negligent in piling inflammable matter near a railroad track, Louisville & N. R. Co. v. Short, 110 Tenn. 717 (1903) ; Alabama & J\ R. Co. V. Fried Co., 81 Miss. 314 (1902) ; San Antonio & A. P. R. Co. v. Home In- surance Co., 70 S. W. 999 (Texas Ct. of Civ. Appeals 1902), or in locating an oil tank within thirtv-six feet of tracks of a railroad, Confer v. New York L. E. & W. R. CO./146 Pa. St. 31 (1892), or in throwing out straw from a ■stable very close to the defendants' tracks, during the summer. Collins v. New York Cent. & H. R. Co., 5 Hun 499 ( N. Y. 1875) : and see White, J. m Post v. Buffalo P. & W. R. Co., 108 Pa. 585 (1885) ; Fero v. R. R., supra. It is to be noted that the plaintiff has the same right to use any part of the defendants' right of wav which it permits him to occupy with its license as though it were his own,' Cincinnati N. O. & T. P. R. Co. v. South Fork Coal Co. 139 Fed. 528 (1905) ; 1 L. R. A. (X. S.) 533, and case« cited in the note LEROY FIBRE CO. V, CHICAGO, M., ETC., R. CO. I357 Thompson on Negligence, § 2314, and Sherman and Redfield on Xegligence, § 680, for the principle that an owner of property is not limited in the uses of his property by its proximity to a railroad, or in this latter report ; but it is contributory wrongdoing to place one's inflam- mable property upon the railway's right of way without its consent, Chicago B. & Q. R. Co. V. Cook, 18 Wyo. 43 (1909). On the other hand if the plaintiff invites upon his premises, for the purpose of serving him in his business, an engine of the defendants which he knows to be out of repair and so to emit sparks, he is bound to take care to protect his nearby property from being ignited by it, his knowledge of the defective condition of the engine and whether he has used due care to protect his property being usually held to be questions of fact for the jurv, Marquette etc. R. Co. v. Spear, 44 Mich. 169 (1880); Hohnan v. Boston Land Co., 8 Colo. App. 282 (1896); Liverpool, London & Globe Ins. Co. v. Southern Pac. R. Co., 125 Cal. 434 (1899). In Massachusetts it was held in Ross v. B. & W. R. Co., 88 Mass. (6 Allen) 87 (1863), that it was a matter for the jury to say whether the plaintiff was guilty of a want of ordinary care in leaving open the door which opened toward the railway in a shed filled with inflammable matter. In Ingersoll V. Stockbridge & Pitts field R. Co., 90 ^Slass. 438 (1864), it was held that the general statute, Chap. 68, sec. 101, having made railways responsible for fire communicated by their engines, the plaintiff could recover though his house was situated part on his own land and part, with the defendants' license, upon its right of way. In Wall v. Pratt, 169 Mass. 398 (1897), it is said that it would be doubtful whether contributory negligence on the part of the owner of property destroyed by fire communicated by a locomotive engine would be a defense unless so gross as to amount to fraud; but in ll'ild v. Boston & M. R. R. Co., 171 Mass. 245 (1898), the court doubts whether the right of the property owner is not there (in IP'all v. Pratt) stated too broadly, but holds that the defendant has no right to complain of an instruction leaving the question to the jury. Where the defendant negligently or, if a railroad, in breach of its statu- tory obligation, fails to fence its property or right of way so as to prevent the intrusion of cattle from adjacent property, it held the owner of such property does not, by putting the cattle into a field which he knows is un- fenced or where he knows the fence is defective, assume the risk of injury through the escape of his cattle, McCoy v. California Pac. R. Co., 40 Cal. 532 (1871) ; Rogers v. Neivburyport.R. Co., 1 Allen 16 (Mass. 1861) ; Gardner v. Smith. 7 Mich. 410 (1859) I Donovan v. Hannibal & St. J. R. Co., 89 Mo. 147 (1886) ; Cressey v. Northern R. Co., 59 N. H. 564 (1880) ; Cleveland etc., R. Co. v. Scudder, 40 Ohio St. 173 (1883) ; Heller v. Abbott, 79 Wis. 409 (1879). In Jl'ilder v. Maine Cent. R. Co., 65 Maine 332 (1876) ; E^mns v. St. Paul & S. C. R. Co., 30 Minn. 489 (1883) and Currv v. Chicago cS- N. W. R. Co., 43 Wis. 665 (1878),— with which compare Heller v. Abbott, 79 Wis. 409 (1879), — it was held that it was a question for the jury to say whether under the circumstances the plaintiff's conduct was careful or negligent, while in Krnm & Peters v. Anthony, 115 Pa. St. 431 (1886), it was held that if the plaintiff put his cattle in a field, knowing that his neighbor had failed to keep in repair the fence around his adjacent quarry as he had agreed to do, he, the plaintiff, was guilty of contributory negligence. An owner of property whether real or personal is, after knowledge that it has been set on fire, bound to take every reasonable precaution to ex- tinguish it, Haverly v. State Line & S. R. Co., 135 Pa. St. 50 (1890) ; Van Dyke V. Grand Trunk R. Co., 84 Vt. 212 (1911). So a landowner is bound to restore fences which his neighbor or another has wrongfully broken down and can not recover for the loss of cattle escaping tlirough breaches in the fences left open by him, Lokcr v. Damon, 17 Pick. 287 (Mass. 1835), though he need not find other pasture for his own cattle to such an extent as to diminish the necessarj^ pasturage fields of the plaintiff, Gilbert v. Kennedy, 22 Mjch. 117 (1871). This is said by Dixon. C. J. in Kellog v. Chicago R. Co., 26 Wis. 223 (1870), not to conflict with the rule announced in the prin- cipal case, the distinction being between "known present and immediate dan- 1358 ' LEROY FIBRE CO. Z'. CHICAGO, M., ETC., R. CO. subject to other risks than those which come from the careful opera- tion of the road or unavoidable accident. The first and second questions we answer in the negative, and the third question in the affirmative. So ordered. • Mr. Justice Holmes, partially concurring: If a man stacked his flax so near to a railroad that it obviously was likely to be set fire to by a well-managed train, I should say that he could not throw the loss upon the railroad by the oscillating re- sult of an injury by the jury whether the road had used due care. I should say that, although of course he had a right to put his flax where he liked upon his own land, the liability of the railroad for a fire was absolutely conditioned upon the stacks being at a reasonably safe distance from the train. I take it that probably many, certainly some, rules of law based on less than universal considerations are made absolute and universal in order. to limit those over-refined speculations that we all deprecate, especially where such rules are based upon or aft'ect the continuous physical relations of material things. The right that is given to inflict various inconveniences upon neighboring lands by building or digging is given, I presume, because of the public interest in making improvement free, yet it generally is made absolute by the common law. It is not thought worth while to let the right to build or maintain a barn depend upon the specula- tions of a jury as to motives. A defect in the highway, declared a defect in the interest of the least competent travelers that can travel unattended without taking legal risks, or in the interest of the average man, I suppose to be a defect as to all. And as in this case the distinction between the inevitable and the negligent escape of sparks is one of the most refined in the world, I think that I must be right so far, as to the law in the case supposed. A very important element in determining the right to recover is whether the plaintifif's flax was so near to the track as to be in danger from even a prudently managed engine. . Here certainly, except in a clear case, we should call in the jury. I do not suppose that any one would call it prudent to stack flax within five feet of the engine, or imprudent to do it at a distance of half a mile, and it would not be absurd if the law ultimately should formulate an exact measure, as it has tended to in other instances. (Martin v. District of Columbia, 205 U. S. 135, 139, 51 L. ed. 743, 744, 27 Sup. Ct. Rep. 440) ; but at present I take it that if the question I suggest be mate- rial, we should let the jury decide whether 70 feet was too near by ger and the danger which is remote and possible or probable only" "the differ- ence is between realization and anticipation." This is only another way of saying that while the owner of property is not bound to provide against future negligence he can not shut his eyes to existing facts and it may also be sug- gested that in one case the property owner can not recover damages because of the restriction upon the use of his property through his fear of merely probable future negligence on the part of the defendant, nor could he recover the expenses of providing against it, while he can recover as part of his dam- ages where the defendants' negligence has actually occurred, the cost, if any, to him in saving his property from the effect thereof. BUTTERFIELD V. FORRESTER. 1359 the criterion that I have proposed. Therefore, while the majority answer the first question, Xo, on the ground that the railroad is liable upon the facts stated as matter of law, I should answer it Yes, with the proviso that it was to be answered No, in case the jury found that the flax, although near, was not near enough to the trains to endanger it if the engines were prudently managed, or else I should decline to answer the question because it fails to state the distance of the stacks. u. CHAPTER EL Contributory Negligence. r — BUTTERFIELD v. FORRESTER. Court of King's Bench, 1809. 11 East 60. This was an action on the case for obstructing a highway, by means of which obstruction the plaintiff, who was riding along the road, was thrown down with his horse, and injured, &c. At the trial before Bayley, J., at Derby, it appeared that the defendant, for the purpose of making some repairs to his house, which was close by the roadside at one end of the town, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction. That the plaintiff left a pub- lic house not far distant from the place in question at 8 o'clock in the evening in August, when they were just beginning to light candles, but while there was light enough left to discern the obstruc- tion at one hundred yards, distance ; and the witness who proved this, said that if the plaintiff had not been riding very hard he might have observed and avoided it ; the plaintiff, however, who was rid- ing violently, did not observe it, but rode against it, and fell with his horse and was much hurt in consequence of the accident ; and there was no evidence of his being intoxicated at the time. On this evi- dence Bayley, J., directed the jury, that if a person riding with rea- sonable and ordinary care could have seen and avoided the obstruc- tion ; and if they were satisfied that the plaintiff was riding along the street extremely hard, and without ordinary care, they should find a verdict for the defendant, which they accordingly did. Bayley, J. The plaintiff was proved to be riding as fast as his horse could go, and this was through the streets of Derby. If he had used ordinary care he must have seen the obstruction ; so that the accident appeared to happen entirely from his own fault. Lord Ellenborough, C. J. A party is not to cast himself upon an obstruction which had been made by the fault of another, and avail himself of it, if he did not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not author- T360' PLUCKWELL v. WILSON. ize another purposely to ride up against them. One person being in fault will not dispense with another's using ordinary care for him- self. Two things must concur to support this action : an obstruction in the. road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. Rule refused. PLUCKWELL r. WILSON. Court of King's Bench, 1832. 5 Carrington &■ Payne, 375. Action for an injury done to the plaintiff's chaise by a carriage of the defendant's, driven by his servant. There was contradictory evidence as to the cause of the injury, and also as to whether the defendant's carriage was in the centre, or on its proper side, of the road. Mr. Justice Alderson left it to the jury to say whether the in- jury to the plaintiff's chaise was occasioned by negligence on the part of the defendant's servant, without any negligence on the part of the plaintiff himself ; for that, if the plaintiff's negligence in any way concurred in producing the injury, the defendant would be en- titled to the verdict. Also, they would have to say, whether it was altogether an accident ; in which case also the defendant would be entitled to the verdict. His Lordship also observed, that a person was not bound to keep on the ordinary side of the road ; but that, if he did not do so, he was bound to use more care and diligence, and keep a better look-out, that he might avoid any concussion, than would be requisite if he were to confine himself to his proper side of the road. Verdict for the plaintiff. BowEN, L. J., in Thomas v. Quatermaine, L. R. 18 Q. B. Div. 685 (1887;, in distinguishing contributory negligence from voluntary assumption of risk, says, p. 697: "It" (the defense of contributory negligence) "rests on the view that though the defendant has in fact been negligent, yet the plaintiff has by his own carelessness severed the causal connection between the de- fendant's negligence and the accident which has occurred ; and that the de- fendant's negligence accordingly is not the true proximate cause of the in- jury.' It is for this reason that under the old form of pleading the defence of contributory negligence was raised, in actions based on negligence, under a plea of not guilty." ' See however. Pollock on Torts, 9th ed. 467-477 and an essay on "Con- tributory Negligence" by the editor, 21 Harv. L. R. 22)3i (1908), especiallv pp. 234 to 242. And see Blenkinsop v. Ogdcn, L. R. 1898. 1 Q. B. 783. in which the defendant unsuccessfully contended that the contributory negli- gence of a workman injured in using unguarded machinery would destroy the casual connection between the defendant's violation of the statute requir- ing the machinery to be fenced and so relieve them from liability to a fine thereunder. NIEBOER r. DETROIT ELEC. RAILWAY. 136: Lord Esher, AI. R., in Thomas v. Quatermaine, L. R. 18 Q. B. Div. 685 (1887), p. 688: "In an action for injuries arising from negligence it was always a defense that the plaintiff had failed to show that as between him and the defendant the injury had happened solely by the defendant's negligence. If the plain- tiff by some negligence on his part directly contiibuted to the injury, it was caused by the joint negligence of both, and no longer solely by the negligence uf the defendant, and that formed a defence to the action." Moore, J.,^ in Nieboer v. Detroit Electric Railway, Supreme Court of Michigan, 1901, 128 Mich. 486:= "The law by which it is determined whether or not the contributory neg- ligence of the plaintiff bars recovery is very uncertain. The adjudicated cases are by no means harmonious, and there is an irreconcilable conflict between the principles announced by eminent judges and the text-book writers. It has been stated that the plaintiff can not recover if the injury complained of would not have occurred without his negligence. It has also been stated that plaintiff's negligence will not bar his recovery if due care on the part of the defendant would have prevented the injury. If the first statement is correct, contributory negligence never prevents recovery. The truth is that the first statement can be correctly applied only in cases of .simultaneous negligence, as in the case of an injury to a person while cross- ing a railway in consequence of his and the railwaj^ company's negligence. The second statement can be correctly applied only in cases of successive negligence, as in the famous Donkey Case, of Davies v. Mann, 10 Mees. & W. 546, where defendant negligently ran into and injured the plaintiff's donkey, which plaintiff had negligently permitted to go unattended on the highway. The test almost universally approved is whether or not plaintiff's negligence is the proximate cause of his injury. If it is, he can not recover; if it is not. he can. Even this test has been criticised on the ground that the term 'prox- imate' is misleading. I think this criticism just and important. The word 'proximate' is ordinarily used to indicate the relation between defendant's negligence and the plaintiff's injury. As so used, it has not the same mean- ing that it has when used to indicate the relation between plaintiff's negli- gence and plaintiff's injury. To illustrate, suppose in the case of Daiies v. Mann, above referred to, that, as a result of the collision between the cart ^ Quoting Carpenter, J. who delivered the opinion in the Circuit Court. = The plaintiff while riding on the bumper on the rear of an electric street car was injured by another car which ran into the car on which he was riding. The cars were running at two or three minute intervals and the plaintiff's car having come to a sudden stop, the following car was unable l^i stop in time to prevent the very slight collision in which the i)laintiff was in- jured. The majority of the court reversed a judgment for the plaintiff, being of the opinion that the plaintiff was guilty of continuing negligence in volun- tarily placing himself in a position of known danger and that the trial court should have directed a verdict for the defendant. Moore, J., with whom Mont- gomery C. J. concurred, dissented on the ground that w-hile the plaintiff assumed the risk of falling or being thrown from the car, he was not negli- gent in taking such position and that if negligent, "had no such relation to his injury as had the negligence of the defendant." 1362 DAVIS V. GUARNIERI. and the donkey, a third person had been injured; I think all will agree that the owner of the donkey, as well as the owner of the cart, would have been liable. See Lynch v. Nurdin, 1 Q. B. (n. s.) 29. And we have already seen that the negligence of the owner of the donkey was not so related to the col- lision as to preclude recovery in a suit by him against the owner of the cart. As" used in relation to contributory negligence, the term 'proximate' simply means that in some way the relation between plaintiff's negligence and his injury is more remote than that between defendant's negligence and the injury."' Owen, C. J., in Davis v. Guarnieri, Supreme Court of Ohio, 1887, 45 Ohio St. 470 (1887), p. 489:' "The doctrine of contributory negligence is found upon these considera- tions: (1) The mutual wrong and negligence of the parties, and the reluc- tance of the law to attempt an apportionment of the wrong between them.^ (2) The principle which requires every suitor who seeks to enforce his rights or redress his wrongs, to go into the court with clean hands, and which will not permit him to recover for his own wrong. (3) The policy of mak- ing the personal interests of parties dependent upon their care and prudence."^ ^ See Cordiner V. Los Angeles Traction Co. and Los Angeles R. Co., 5 Cal. App. 400 (1907), where the plaintiff having been injured in a collision between the vehicles of the two defendants, both negligently operated, the Railway Co. unsuccessfully contended that if the motorman of the Traction Co. could have stopped his car after seeing the Railway Company's car upon its tracks, the Traction Co. was alone liable to the plaintiff, and Shield v. Johnson Co., 132 La. 77i (1913), a substantially similar case. In Nashua Iron &c. Co. v. Worcester & N. R. Co., 62 N. H. 159 (1882), the court held that he, of two persons whose joint negligence had injured another, from whom the plaintiff had recovered damages, was entitled to indemnity from the other, if such other had had the last clear chance to prevent the accident, but see 21 Harv. L. R., pp. 242-243 and Shield v. Johnson Co., 132 La. 773 (1913). ^ The court held that these considerations did not require that the plain- tiff, poisoned by drugs carelessly put up by the defendant, should be barred by the contributory negligence of her husband in failing to discover the defendant's mistake. See the very similar language in Bellfontaine & Indiana R. Co. v. Snyder, 18 Ohio St. 399 (1868), holding that an infant plaintiff is not barred by the negligence of his parent or custodian. ' "The reason why, in cases of mutual concurring negligence, neither party can maintain an action against the other, is, not that the wrong of the one is set-off against the wrong of the other; it is that the law can not measure how much of the damage suffered is attributable to the plaintiff's own fault. If he were allowed to recover, it miglit be that he would obtain from the other partv compensation for his own misconduct." — Strong, J. in Hcil V. Glanding, 42'Pa. 493 {1862), p. 499. "It is an incontestable principle that where the injury complained of is the product of mutual or concurring negligence, no action for damages will lie. The parties being mutually in fault, there can be no apportionment of the damages. The law has no scales to determine in such cases whose wrong- doing weighed most in the compound that occasioned the mischief." — Wood- ward, J. in i^aiVroaJ v. A^or/on, 24 Pa. 465 (1855), p. 469. "In Railroad v. Norton and Heil v. Glanding, supra, emphasis is laid on the necessity of keeping railroad tracks clear of obstruction from uses not legislatively authorized, as a reason for denying damages to one whose prop- erty, being on the tracks in the course of such use, is injured by the negli- gent operation of the railroad engines or of another, whose use of the track is equally unauthorized. Benning, J. dissenting in Macon & Western R. R. Co. v. Winn, 26 Ga. MULLER V. MCKESSON. I363 SECTION 1. Negligence Contributing to an Injury as a Bar to Liability Aris- ing Out of Other Than Merely Negligent Conduct. (a) Conduct entailing liability not dependent on proof of negligence. ^ MULLER V. M'KESSON et al. Court of Appeals of New York, 1878. 7Z N. Y. 195. Church, Ch. J. The defendants had a chemical factory in Brooklyn and owned a ferocious dog of the Siberian bloodhound species, which was kept in the enclosed yard surrounding the fac- tory, and generally kept fastened up in daytime and loosed at night as a protection against thieves. The plaintiff was in the employ of the defendants as a night watchman. It was his duty to open the gate to the yard every morning to admit the workmen, and to do this he would pass from the door of the factory across a corner of the yard to the gate. On the morning in question, as the plaintiff' was returning from opening the gate, he was attacked from behind by the dog, thrown to the ground and severely bitten, and after freeing himself, and while endeavoring to reach the factory, was again attacked and bitten and seriously injured. L^pon the close of the evidence and after a motion for a nonsuit had been denied, the judge decided that there was no question for the jury but the question of damages, to which \here was an exception. The points urged by the appellants in this case are : First, 250 (1858), after holding that the plaintiff's negligence did not bar an action, but that the damages recovered should bear such proportion to the loss sus- tained as the defendant's fault bore to the joint fault of both as the produc- ing cause thereof: "If denying an action, in these cases, to the sufferer, is a proper punishment to him, it is an improper reward to the other party; if denying an action to the sufferer will be a discouragement to future negli- gence in him, it will be an encouragement to future negligence in the other party." "The practice being thus established of depriving the plaintiff of all remedy, the ultimate justification of the rule is in reasons of policy, viz., the desire to prevent accidents by including each member of the community to act up to the standard of due care set by the law. If he does not, he is de- prived of the assistance of the law. How much influence the rule exerts to accomplish the object aimed at can not be known. That it does exert some influence is sure. A plaintiff who has learned the law of contributory neg- ligence by the hard experience of losing a verdict is likely to be more careful in the future. From his negligence, at least, accidents will be less likely to happen." — W. Schofield, Esq., Contributory Negligence, 3 Harv. L. R. 263 (1890), p. 270, quoted by Sir Frederick Pollock, Law of Torts, 9th ed. 473, as expressing "the element of truth which the penal theory presents in a dis- torted form." 1364 STEIN METZ V. KELLY. That the plaintiff was guilty of contributory negligence, or at least the evidence would have warranted the jury in so finding. The point as to contributory negligence presents the most diffi- culty. There are expressions in some of the cases indicating that the liability of the owner is not affected by the negligence of the person injured. In Woolf v. Chalker (31 Conn. 130) it is said that the owner is liable ''irrespective of any questions of negligence of the plaintiff*," and citing May v. Biirdett (9 Ad, & El. (N. S.), loi) and Card v. Case (57 Eng. C. L. R., 622). If a person with full knowledge of the evil propensities of an animal wantonly excites him, or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it can not be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offense, producing the injury. (Cogszvell .v. Baldzvin, 15 Vt, 404; Koney V. Ward, 36 How. P. R., 255 ; Wheeler v. Brant, 23 Barb., 234 ; Blackman v. Simmons, 3 Car. & P., 138; Brock v. Copeland, i Esp., 203; Bird V. Holbrook, 4 Bing., 628.) But as the owner is held to a vigorous rule of liability on account of the danger to human life and limb, by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care. To enable an owner of such an animal to interpose this defense, acts should be proved with notice of the character of the animal, which w6uld establish that the person in- jured voluntarily brought the calamity upon himself. It is sufficient to say that the evidence did not show that the plaintiff had notice that the dog was loose, nor were the circumstances such as to in- duce him to believe that such was the fact. If the negligence of the plaintiff is to prevail, it must be predicated upon not taking the precaution to look, examine, and ascertain whether the dog was fastened or not. The plaintiff might have ascertained by examina- tion whether the dog was fastened in his kennel or not ; but I do not think he was bound to exercise that degree of care, or that the defendant can be relieved from liability because he did not. As negligence, in the ordinary sense, is not the ground of lia- bility, so contributory negligence, in its ordinary meaning, is not a defense.^ (b) Conduct intentionally injurious. STEINMETZ v. KELLY, Supreme Court of Indiana, 1880. 72 Ind. 442. WoRDEN, J. Action by the appellee against the appellant for assault and battery. The complaint consisted of three paragraphs, ^Accord: Brooks v. Taylor, 65 Mich. 208 (1887); Fake v. Addicks. 45 Minn. 37 (1890) ; and see Kelly v. Killourey and Peck v. Williams, note to Schutt V. Adair, post, p. 1375. STEINMETZ V. KELLY. I365 a demurrer to each of which, for want of sufficient facts, was over- ruled. The first, the only one to which any specific objection is made in this Court, alleged that the defendant, on, &c., "violently and unlawfully assaulted the plaintiff, and struck him, and also threw him, the plaintiff, from the house of the defendant on to the street pavement, in front of the defendant's house, with great vio- lence, fracturing," &c. The defendant asked that the following interrogatory be an- swered by the jury, if they should return a general verdict, viz.: '"Did the fault or negligence of the plaintiff contribute in any way to the injury of the plaintiff*, received on the evening of the 3d of March, 1876?" The Court declined to direct the jury to answer the interrogatory, and in this way we think no error was committed. The right of the plaintiff' to recover depended not upon any negligence of the defendant, but upon the assault and battery, which, if perpetrated at all by the defendant, was intentional and purposed. It may be that the defendant did not intend to inflict so severe an injury upon the plaintiff as seemed to result from the excess of force applied to him ; but it does not therefore follow that he did not intend to apply that force. The doctrine that contributory negligence on the part of the plaintiff will defeat his action has been generally applied in actions based on the negligence of the defendant, in short, in cases involv- ing mutual negligence. But it has also been applied in some cases where the matter complained of was not negligent merely, but the commission of some act in itself unlawful, without reference to the manner of committing it, as the wilful and unauthorized obstruc- tion of a highway, whereby a person is injured. Butteriicld v. For- rester, II East, 60; Dygert v. Schenk, 23 Wend. 446. The doctrine, however, can have no application to the case of an intentional and unlawful assault and battery, for the reason that the person thus assaulted is umler no obligation to exercise any care to avoid the same by retreating or otherwise, and for the further reason that his want of care can in no just sense be said to contribute to the injury inflicted upon him by such assault and battery. An intentional and unlawful assault and battery inflicted upon a person is an invasion of his right of personal security, for which the law gives him redress, and of this redress he can not be deprived on the ground that he was negligent and took no care to avoid such invasion of his right. The trespass was purposely committed by the defendant. Tf he could excuse it on the ground of the alleged misconduct of the plain- tiff', and if he employed no more force than was necessary and rea- sonable, that was a complete defence. Otherwise the plaintiff, if he made out the trespass, was entitled to recover, and no negligence on his part, as before observed, could defeat his action. The case of Rntcr V. Foy, 46 Iowa, 132, is in point. There the plaintiff alleged that the defendant had assaulted and beat her with a pitchforlc On the trial the defendant asked, but the Court refused, the follow- ing instruction: "If you find from the evidence that the plaintiff" 1366 ALGER, SMITH & CO. V. DULUTH-SUPERIOR TRAC. CO. was injured, or contributed to her injury, by her own act or negh- gence, defendant would not be liable for assault and battery upon her, and plaintiff can not recover." On appeal the Court said upon this point : "The doctrine of contributory negligence has no appli- c'ation in an action for assault and battery." The case here is entirely unlike that of Brown v. Kendall, 6 Cush. 292. * * * The difference between that case and the present is substantial and vital. In that case the battery was unintentional, and the de- fendant therein was guilty of no wrong save his negligence. Here the defendant intentionally perpetrated the battery, and the plain- tiff's right to recover was not based upon the negligence of the de- fendant at all. Judgment affirmed.^ (c) Wilful, wanton and reckless misconduct. Start, C. J. in Alger, Smith & Co. v. Duliith-Superior Traction Co. Supreme Court of Minnesota, 1904. 93 Minn. 314. "There is a well-defined distinction between ordinary negli- gence and wilful or wanton negligence. Ordinary negligence is not actionable if the negligence of the injured party directly con- tributed to the result, but liability is incurred by wilful negligence irrespective of such contributory negligence. Wilful negligence is not simply greater negligence than that of the injured party, nor does it necessarily include the element of malice or an actual intent to injure another. But it is a reckless disregard of the safety of the person or property of another by failing, after discovering the peril, to exercise ordinary care to prevent the impending injury. Fonda v. St. Paul City Ry. Co., 71 Minn. 450, 74 N. W. 166; SIo- jiiker V. Great Northern Ry. Co., 76 Minn. 306, 79 N. W. 168; Lando v. Chicago, St. P. M. & O. Ry. Co., 81 Minn. 279, 83 N. W. 1089 ; Olson V. Northern Pac. Ry. Co., 84 Minn. 258, 87 N. W. 843 ; Razvitzer v. St. Paid City Ry. Co., supra, page 84."^ ^Accord: Birmingham R., Light & Power Co. v. Jones, 146 Ala. 277 (1906) ; Louisville N. A. & C. R. Co. v. Wurl, 62 111. App. 381 (1896) ; Cleve- land C. C. & St. L. R. Co. V. Miller. 149 Ind. 490 (1898) ; Brendle v. Spencer, 125 N. Car. 474 (1899); see also, Serge v. Gardner, 19 Conn. 507 (1849), semble; Florida So. R. Co. v. Hirst. 30 Fla. 1 (1892), semble; Labarge v. Pere Marquette R. Co., 134 ]Mich. 139 (1903), semble, and Wynn v. Allard, 5 Watts & S. 524 (Pa. 1843). ^Accord: Wabash R. Co. v. Speer, 156 111. 244 (1895), Schumacher v. St. Louis & S. P. R. Co., 39 Fed. 174 (1889) and cases cited in note 2 to Cava- naugh v. Boston & M. R. Co., post, p. 1400, and see the language of Holmes, J. in Pierce v. Cunard S. S. Co., 153 Mass. 87 (1891). In many of the cases the defendant's conduct showed a real conscious indifference to the safety of the plaintiff or his property, Pierce v. Cunard S. S. Co., 153 Mass. 87 (1891); BIRMINGHAM, ETC., ELEC. CO. V. BOWERS. I367 CoLEMAX,, ]., in Birmingham Raikuay & Electric Company v. Bowers: Supreme Court of Alabama, 1895. 110 Ala. 328. "Mere negligence which gives a cause of action is the doing of an act, or the omission to act, which results in damage, but with- out intent to do wrong or cause damage. To constitute a wilful injury, there must be design, purpose, intent to do wrong and in- flict the injury. Then there is that reckless indifference or disre- gard of the natural or probable consequence of doing an act, or omission of an act, designated, whether accurately or not, in our decisions, as 'wanton negligence,' to which is imputed the same de- gree of culpability and held to be equivalent to wilful injury. A purpose or intent to injure is not an ingredient of wanton negli- gence. Where either of those exist, if damage ensues, the injury is wilful. In wanton negligence, the party doing the act or failing to act, is conscious of his conduct, and without having the intent to injure, is conscious, froTn his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury.^ A mere error of judgment as to the result of doing an act or the omission of an act, having no evil purpose or intent, or consciousness of probable injury, may constitute simple negligence, Indianapolis B. & IV. R. Co. v. McBrown, 46 Ind. 229 (1874). In other cases no such conscious indifference was exhibited. Where the plaintiff's neghgence is subsequent to the defendant's so-called reckless or wanton negligence, as where by the mere use of senses he could discover his peril and avoid the injury, many cases hold' that such negligence bars liability, Sego v. So. Pac. R. Co.. 137 Cal. 405 (1902) ; Olson v. N. P. R. Co., 84 Minn. 258 (1901); Rawitzer v. St. Paul City R. Co., 92, Mmn. 84 (1904) ; Labarge v. Pcre Marquette R. Co., 134 ]\Iich. 139; Pcnna. R. Co. v. McGirr, 61 Md. 108 (1883) ; Texas & N. O. R. Co. v. Brozvn, 2 Tex. Civ. App. 281 (1893), 21 S. W. 424, arrtl see Knowlton, J. in Aiken v. Holyoke R. Co., note 2 to Pinoza v. Northern Chair Co., post, p. 1377, contra, Central of Ga. R. Co. V. Partridge, 136 Ala. 587 (1902). ^See McClellan, J. in Ga. Pac. R. Co. v. Lee, 92 Ala. 262 (1890). p. 270, such conduct "is, strictly speaking, not negligence at all, though the term 'gross neghgence' has been * * * frequently used in defining it. * * * It is more than any degree of negligence, inattention or inadvertence — which can never mean other than the omission of action without intent, existing or imputed, to commit wrong — it is that recklessness or wantonness, or worse, which implies a willingness to inflict the impending injury, or a wil- fulness in pursuing a course of conduct which will naturally or probably result in disaster, or an intent to perpetrate wrong." See also, Mitchell. J. in Louisville, New Albany & Chicago R. Co. v. Brvan. 107 Ind. 51 (1886) ; and compare JVvnn v. Allard, 5 W. & S. 524 (Pa. 1843), where the court held that if the plaintiff, who was walking in the driveway, was negligent in not keeping a lookout for vehicles, "the defendant would be answerable only for negligence so wanton and gross as to be evidence of voluntary injury," with the statements of ^Marshall, J. in Asfin v. Chicago il/. & St. P. R. Co., 143 Wis. 477 (1910), p. 484, to the effect that wanton negligence requires an advertent act or omission "evincing intention to produce" the injury or done or omitted "with disregard of consequences as to evince little short of actual intent," Bolin v. Chicago St. P., M. & O. R. Co., 108 Wis. 333 (1900), p. 347, and Knowlton, C. J. in Aiken v. Holyoke St. R. Co., 184 Mass. 269 (1903), "if one is grossly and wantonly reckless in exposing others to danger, (the law) holds him to have intended the natural consequences." 1368 ATCHISON^ TOPEKA, ]:tC., R. CO. V. liAKER. but can not rise to the degree of wanton negligence or wilful wrong."^ THE ATCHISON, TOPEKA & SANTA FE RAILWAY CO. v. BAKER. Supreme Court of Kansas, 1908. 79 Kans. 183. Mason, J. Sarah E. Baker was killed by a train of the Atchi- son, Topeka & Santa Fe Railway Company in a street of Olathc. An administrator recovered a judgment on this account, from which the company prosecutes error. The special findings, supplemented by the general verdict, may be deemed to have established these facts : Mrs. Baker was 71 years old. Her home was in the middle of a block facing east upon a street sixty feet wide, along which ran two railroad tracks about twelve feet apart, equidistant from the middle of the street, the space between them being filled in with cinders and in common use by foot travelers. Most persons going along the street on foot, especially when it was muddy, used this ballasted portion. There was no sidewalk upon the side of the street where Mrs. Baker lived. About three o'clock in the after- noon of the day of her death she left her house, crossed the planks over the ditch, and was struck 'and killed by a north-bound freight train running on the nearer track at the rate of fifteen miles an hour, neither tlie bell nor the whistle having been sounded after the engine passed the depot. The train did not stop at the depot, but went through "the town, in accordance with custom, with steam cut ofif, the grade permitting this. Every point on the track taken by the deceased from her fence to the track commanded an unin- terrupted view of the track to the south for a distance of three- quarters of a mile. The engineer and fireman could have seen Mrs. Baker at the place where she was killed if they had been on the lookout, but not having kept a careful watch ahead of the engine they did not see her at all. A city ordinance limited the speed of trains to six miles an hour. But the jury did not find that the accident was due to the reck- less and wanton misconduct of the employees in charge of the en- girte, and this finding, if it stands, renders the inatter of contributory negligence immaterial. With regard to this the railroad company makes two contentions: (i) That the evidence did not justify sub- mitting to the jury the question of recklessness and wantonness, and (2) that, if so, there was error in the instructions on the sub- ject. As the employees did not see Mrs. Baker, such recklessness 'Accord: Willis v. Boston & N. St. R. Co., 208 Mass. 589 (1911); Brannen V. Kokomo G. & J. Gravel Road Co., 115 Ind. 115 (1888). toll-gate keeper closed gate in front of plaintiff's horses, supposing he was intending to pass without paying toll, held that the company was liable only if the circumstance clearly indicated that it was highly probable that the horses would run against it. ATCHISON, TOPEKA, ETC., R. CO. V. BAKER. I369 and wantonness on their part as to render the company liable not- withstanding her contributory negligence can only be attributed to them upon the theory that to their knowledge the public street near the place of the accident was in such general use that they must be deemed to have understood that foot-travelers were likely to be there, and understanding this to have chosen to omit all warn- ing of the approach of the engine, not necessarily because they af- firmatively desired to kill or maim any one, but because they were entirely indifferent whether they did so or not. The running of a train at an excessive speed along or across a busy street of a popu- lous city, without either outlook or signal, may well be held to exhibit such contempt for the rights of others as to supply the place of positive malice. Thus, in Ga. Pacific Raihvay Co. v. Lee, 92 Ala. 262, 9 South. ,230, it was said : "To run a train at a high rate of speed, and without signals of approach, at a point where the trainmen have reason to believe there are persons in exposed positions on the track, as over an un- guarded crossing in a populous district of a city, or where the public are wont to pass on the track with such frequency and in such num- bers — facts known to those in charge of the train — as that they will be held to a knowledge of the probable consequences of main- taining great speed without warnings, so as to impute to them reck- less indifference in respect thereto, would render their employer liable for injuries resulting therefrom, notwithstanding there was negligence on the part of those injured, and no fault on the part of the servants after seeing the danger. The doctrine is not based on the idea that they ought to. have sooner observed the danger, however, but on the ground that they knew of its existence — of the presence of people in positions of peril, as a matter of fact, without seeing them at all in the particular instance."^ (Page 271). The conduct of the employees in charge of an engine in fail- ing to take measures for the protection of a person upon the track can be characterized as "wanton," in the sense in which that word is used in this connection, only when they actually know of his presence, or when the situation is sulistantially the same as though they had such knowledge — when such knowledge may fairly be im- puted to them. It is not enough for that purpose that the exercise of ordinary diligence would have advised them of the fact, for their ^ This AlcClcllan, J. calls "a shading" of the doctrine previously consid- ered, viz. : that it is "recklessness, wantonness, or worse" not to resort to all reasonable effort to prevent disaster, after the plaintiff's peril "has become known to the defendants as a fact, and not merely after they should have known it." In Ga. Pae. R. Co. v. Lee, the court held that there was no evi- dence to show that the crossing was "a crowded thoroughfare," "at most it was the crossing of a considerably travelled public road over the railway and there was nothing in the situation * * * assuming that it was well known to the trainmen, to justify the imputation to them of a consciousness that a natural or a probable result of their conduct would be the infliction of injury to persons or property at that point. We apprehend that the maintenance of even a high rate of speed, and omission to give signals, in approaching such a crossing can be no more than negligence, in an action counting on which contributory negligence would be a good defense." 1370 ATCHISON, TOPEKA, ETC., R. CO. V. BAKER. omission of duty in that regard amounts only to negligence. Nor is it enough that they know some one might be in the place of dan- ger; the probability must be so great — its obviousness to the em- ployees so insistent — that they must be deemed to realize the likeli- hood that a catastrophe is imminent and yet to omit reasonable effort to prevent it because indift'erent to the consequences. The evidence here falls short of that in the cases from which the fore- going quotations are made only in the size of the city and the amount of travel over its stieets, the difference being one of degree.^ It affords a relatively slight basis for imputing to the engineer or fire- man what amounts almost to a knowledge of the decedent's danger, but we conclude that it was sufficient to entitle the plaintiff to go to the jury on this issue. The fact that the evidence tending to charge the engineer and fireman with knowledge that there was likely to be' some one on the track at the place of the accident was so meager makes it especially important to consider carefully whether the jury are fully advised of the degree of turpitude the verdict attributed to these employees. The instructions, after stating that contributory negli- gence would not defeat a recovery if the negligence of the agents of the defendant was wanton and reckless, defined these terms as follows : "Recklessness is an indifference, whether wrong is done or not, an indif- ference to the rights of others. Wanton negligence is the failure of one charged with a duty to exercise an honest effort in the employment of all reasonable means to prevent a serious injury." If it had been established that the engineer or fireman saw Mrs. Baker on or near the track these definitions might have been suffi- cient, for their language would be understood as used with reference to that situation. But as the jury found this fact not to exist it was necessary that they should be told what other conditions would re- place that of actual knowledge. This information was not given them in any part of the charge. The duty referred to, the disregard of which amounts to wan- tonness, is manifestly that which arises only when the person charged with dereliction has knowledge of the danger or of the facts which impute that knowledge to him. On account of the omission of the instructions to cover this feature of the matter a new trial will be ordered. The effect of the omission was intensified by employing the term "gross negligence" in one part of the charge as the equiva- lent of "wanton recklessness," and in another defining it as the want of slight care. Although what is really reckless and wanton mis- conduct is sometimes spoken of as gross negligence, the expression is everywhere recognized as inaccurate and unfortunate, because it seems to imply a difference only of degree, whereas the whole doc- trine that contributory negligence is no defense where the injury "Compare Ga. Pac. R. Co. v. Lee, supra, with Memphis R. Co. v. Martin, 117 Ala. 367 (1897). CAYZAR, IRVINE & CO. V. CARRON CO. 1 37 1 is the result of recklessness and wantonness is based upon the theory of a difference in kind.^ For the same reason the phrase "reckless and wanton negligence" has a misleading tendency. One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence ; his conduct must be such as to put him in the class with the wilful doer of wrong.* The only respect in which this attitude is less blameworthy than that of the intentional wrong-doer is that instead of afifirmatively wishing to injure another he is merely willing to do so. The differ- ence is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so pr not. The judgment is reversed and a new trial ordered.^ ' (d) The Admiralty rule of divided damages. -i^f^ CAYZER, IRVINE & CO. v. CARRON CO. House of Lords, J884. L. R. 1883-84, 9 Appeal Cases, 873. Lord Blackburn. When the cause of the accident is the fault of both, each party being guilty of blame which causes the accident, there is a difference between the rule of Admiralty and the rule of Common Law. The rule of Common Law says, as each occasioned the accident neither shall recover at all, and it shall be just like an inevitable accident; the loss shall lie where it falls. Admiralty says, on the contrary, if both contributed to the loss it shall be brought into a hotchpotch and divided between the two. Until the case of ^See Banks v. Braman, 188 ]\Iass. 367 (1905), and amended head-note thereto in 192 Mass. 162; and see Land v. Boston El. R. Co., 197 Mass. ZZ (1907). *His conduct is often spoken of as "criminal or quasi criminal", Knowl- ton, C. J., in Aiken v. Holyoke St. R. Co., 184 Mass. 269 (1903), Mitchell, J., in Louisville, N. A. & C. R. Co. v. Bryan, 107 Ind. 51 (1886). "Accord: Lacev v. Louiszille & N. P. R. Co., 152 Fed. 134 (1907); Schindler v. Milwaukee, L. S. & W. R. Co., 87 Mich. 400 (1891). and Bir- mingham So. R. Co. V. Pozvell, 136 Ala. 232 (1902), flying switch without any one on cars to keep lookout and control them; Memphis &c. R. Co. v. Martin, 117 Ala. 367 (1897), Lake Shore etc. R. Co. v. Bodcner, 139 111. 596 (1892), and Ncary v. Northern Pac. R. Co.. 37 Mont. 461 (1906), trains run at high, in some cases illegal, speed without proper signals over frequented crossings or through city streets; Cooper v. Lake Shore & Michigan So. R. Co., 66 Mich. 261 (1887), and Labargc v. Pcrc Marquette R. Co., 134 Mich. 139 (1903), train backed without lookout being kept at the crossing; Mapcs V. Union R. Co., 56 App. Div. 508 (X. Y. 1900), trolley car running at Jiigh speed with motorman asleep at his post. Contra: Louisville. K. A. & C. R. Co. V. Schmidt. 106 Ind. 73 (1885), and Louisville. N. A. & C. R. Co. \. Bryan, 107 Ind. 51 (1886). facts similar to Lacev's case; Brooks v. Pittsburgh, C. C. & St. L. R. Co.: 158 Ind. 62 (1901), znd Broxvn v. Chicago & N. W. R. Co., 109 Wis. 384 (1901), facts similar to Memphis R. Co. v. Martin; Baker v. Tacoma E. R. Co., 44 Wash. 575 (1906), facts similar to Cooper's case. V 1372 GALENA, ETC., R. CO. Z'. JACOBS. Hay V, Lc Kezr, 2 Shaw, Sc. App. 395, which has been referred lo in the argument, there was a question in the Admiralty Court whether you were not to apportion it according to the degree in which they were to blame ; but now it is, I think, quite settled, and there is no dispute about it, that the rule of the Admiralty is, that if there is blame causing the accident on both sides they are to divide the loss equally, just as the rule of law is that if there is lilame causing the accident on both sides, however small that blame mav be on one side, the loss lies where it falls. ^ iH (e) Comparative negligence. Breese, J., in Galena & Chicago Union Railroad Company v. Jacobs, Supreme Court of Illinois, 1858, 20 111. 478, 496 : "It will be seen, from these (English and American) cases, that the question of liabilitj- does not depend absolutely on the absence of all negli- gence on the part of the plaintiff, but upon the relative degree of care or want of care, as manifested by both parties; for all caTe~or rregligence is at best but relative, the absence of the highest possible degree of care showing "■Accord: The "North Star" 106 U. S. 17 (1882) ; see also case cited in the opinion of Blatchford, J., in the Max Morris, infra. This is not confined to cases of collision or other injuries to shipping. One, receiving personal injuries, through the negligent operation or defective condition of a ship or wharf is not barred by his contributory fault but may recover divided damages. M;ix Morris. 137 U. S. 1 (1890), but the court in that case refused to decide whether in such case the damages should be equally divided or whether it should be in the discretion of the court to award a greater or less proportion thereof. While on the whole the tend- ency of the admiralty courts in the United States is towards an equal divi- sion of the damage, both in case of collision and of personal injuries, The C. R. Hoyt, 136 Fed. 671 (1905); The Moran, 143 Fed. 187 (1906); there are decisions and dicta to the effect that the damages should be awarded in proportion to the respective faults of such parties, as in France, Germany and certain other European countries. The ^lary Ida, 20 Fed. 741 (1884); The Victory, 68 Fed. 395 (1895), where the question actually dealt with was the respective amounts which two negligent ships should pay to an owner of the cargo, himself in no fault; The Lackawanna, 151 Fed. 499 (1907), one- third damages allowed: li'illiani .Johnson Co. v. Johansen, 86 Fed. 886 (1898), in which the court, however, held that the negligence of the libellant and the ship being equal, that the libellant should recover one-half of the damages sustained by an injury to his person. See for a synopsis of the various rules in force in the various maritime nations, Leslie F. Scott, Esq.. "Collisions at Sea.'' etc.. -13 Law Quarterly Rev. 17 (1897). especially pp. 17 and 18, and Lyon-Caen & Renault, Traite de Droit Commercial, 3rd ed., 1902, Vol. VI, § 1011. The admiralty rule is equally applicable to determine the shares which two ships must pay in compensation for the injury received by a libellant innocent of contributory fault. The Victory, 68 Fed. 395 (1895). The principle that a plaintiff whose negligence contributed to his harm rould still recover but that his damages should be diminished in proportion to the share which his own fault had in producing his iniurv. was announced in Macon & W. R. Co. v. Winn. 26 Ga. 250 (1858') , bv Benning, J., and the :.ibsenuent Georgia Codes, 1882, sec. 3034, code 1895, sec. 2322. code 1911. sec. 27§f;^nacts this rule in actions to recover against railroads for injuries SCHUTT V. ADAIR. 1373 the presence of some negligence, slight as it may be. The true doctrine, therefore, we think is, that in proportion to the negligence of the defendant, should be measured the degree of care required of the plaintiff, — that is to say, the more gross the negligence manifested by the defendant, the less de- gree of care will be required of the plaintiff _to enab le him to recover." "We say, then, that in this, as in all like cases, the degree of negligence must be measured and considered, and wherever it shall appear that the plaintiff's negligence is comparatively slight, and that of the defendant gross, he shall not be deprived of his action." ■Magruder, J., in Lanark v. Dougherty, Supreme Court of Illinois, 1894, 153 111. 163, 165: "It is said, of two of these instructions, that they ignore the rule of com- parative negligence. The doctrine of comparative negligence is no longer the law of this court. The instructions in the present case require the jury to find that the plaintiff was exercising ordinary care, and that the defend- ant was guilty of such negligence as produced the injury. This was suffi- cient, without calling the attention of the jury to any nice distinctions be- tween degrees of care or of negligence." SECTION 2. Contributory Negligence as a Bar to Liability for the Breach of Statutory Duty. SCHtn^T v. -\DAIR. Supreme Court of Minnesota, 1906. 99 Minn. 7. Brown,' J. One of the defenses interposed at the trial was that plaintiff was guilty of contributory ne.s^ligence, which the jury by their verdict sustained. Upon this subject the court charged the jtu'v as follows : The jury are instructed that it was the duty of the plaintiff on his second visit to defendants' warehouse on the day of the to persons or propertv, see Alabama G. S. R. Co. v. Cogqins, 88 Fed. 455 (1898) ; while in sec. 29972. code 1898, sec. 3830, code of 1895, sec. 4426. code of 1911. it is provided that "if the plaintiff" by ordinary care could have avoided the consequences to himself caused by the defendants' negligence he is not entitled to recover: but in other cases the defendant is not relieved though the plaintiff may in some way have contributed to the injury sus- tained." Some of the recent statutes dealing with employers' liability and workmen's compensation contain somewhat similar provisions to the effect that the contributory negligence of the plaintiff shall not operate as a bar to rero-<'erv but =ha11 be considered bv the jurv as reducing the damages to be awarded. United States. Act of Congress, .^pril 22. 1008. Ch. 149. sec. 3. 25tb Statute at Laree. p. 65; Kansas. Act of March 14. 1911. § 46; Te-xas. Act of Anril 16, 1913. § 1. 1374 SCHUTT V. ADAIR, accident to exercise such care and diligence in looking and examin- ing the place where he went as would be expected of an ordinarily prudent man situated as plaintiff was,. and having such knowledge of the elevator as plaintiff had, and that if plaintiff failed to exer- cise such care and diligence he was guilty of contributory negligence, and can not recover. It is insisted that this instruction was erroneous, inter alia, in stating as a matter of law that a duty devolved upon plaintiff while within the warehouse to exercise due care for his own safety. Though the violation of a statutory duty may constitute negligence per se and actionable if injury result therefrom, nevertheless, stat- utes imposing such duties are not so construed as to abrogate the ordinary rules of contributory negligence, unless so worded as to leave nO doubt that the legislature intended to exclude the defense. 20 Am. & Eng. Enc. (2d Ed.) 159; Caszvell v. Worth, 5 El. & Bl. 849; Hayes v. Michigan Central R. Co., in U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410; Whitcomb v. Standard, 153 Ind. 513, 55 N. E. 440; Queen v. Dayton, 95 Tenn. 458, 465, 32 S. W. 460, 30 L. R. A. 82, 49 Am. St. 935 ; Hohim v. Chicago, 80 Wis. 299, 50 N. W. 99; Taylor v. Carew, 143 Mass. 470, 10 N. E. 308. It was not the intention of the legislature in enacting this stat- ute to create an absolute liability, but rather to impose a duty upon persons operating warehouses and manufacturing establishments to guard and protect their employees from injury, the non-compliance with which constitutes negligence justifying a recovery by an in- jured servant, without further proof of a failure to exercise that degree of care enjoined by the rules of the common law. The gen- eral principles of the law underlying the right of action for personal injuries founded upon negligence remain the same, though the proof of negligence is simplified by showing merely a failure to obey the statutory commands. Contributory negligence will bar such an ac- tion precisely as it bars such an action at common law. Anderson V. C. A^. Nelson Lumber Co., 67 Minn. 79, 69 N, W. 630; Swenson V. Osgood & Blodgett Mfg. Co., 91 Minn. 509, 98 N, W, 645.^ ^ So where a statute requires the instalation of safety appliances, while the weight of modern authoritj^ is to the effect that an employer does not assume the risk of injury from his employees' disobedience thereof, see Narramorc v. Cleveland, C. C. & St. L. R. Co., 96 Fed. 298, post, Appendix, he is usually held to be barred by his contributory negligence, Taft, J. in Narramore v. Railroad and cases therein cited by him, and Kcenan v. Edison Electric Illu- minating Co., 159 j\Iass. 379 (1893). In Illinois in an action for the wilful vio- lation of the duty to protect miners by fencing shafts, etc., created by statutes carrying into effect the constitutional provision, § 29, Art. 4, contributory negligence is no defense, Carterville Coal Co. v. Abbot, 181 111. 495 (1899), with which compare Browne v. Siccjcl-Coopcr Co., 191 111. 226 (1901), holding that the negligence of an employee barred recovery when he fell into an unguarded elevator shaft required to have iron doors un- der a general ordinance regulating the use of all elevators for the protec- tion of the public generally. The tendency of more recent cases is to re- quire a much less amount of self-protective precaution from employees using or coming into necessary contact with appliances lacking statutory guards, compare ^Schlemmvr v. Butfalo, R. & P. R. Co.. 207 Pa. 196 (1903) with Fegley v. Lycoming Rubber Co., 231 Pa. St. 446 (1911). LENAHAN V. PITTSTON COAL CO. 1375 LENAHAN t-. PITTSTON COAL CO. Supreme Court of Pennsylvania, 1907. 218 Pa. St. 311. j\Ir. Justice Elkin. The Act of June 2, 1891, P. L. 176, which, as its title declares, was intended to protect the health and safety of persons employed in and about the anthracite coal mines of Pennsylvania and to preserve the property connected therewith, provides, section eight, that "no person under fifteen years of age shall be appointed to oil the machinery and no person shall oil dan- gerous parts of such machinery while it is in motion." The boy, Munley, was fourteen years, four months and three days old at the time the accident occurred. At the trial the learned court below directed a compulsory nonsuit to be entered, which, on motion made, he refused tO' take off on the ground that the boy was guilty of contributory negligence in attempting to oil dangerous parts of the machinery while in motion, wdiich was in violation of the statute, and therefore negligent. This would be the correct rule if the in- jured boy had the right under the law to engage in the employment which occasioned the injury. The learned trial judge took the view that the boy being over fourteen years of age was presumed under the common-law rule to have sufficient capacity to be sensible of danger and to have the power to avoid it, and that such presumption had not been overcome by the evidence produced at the trial. The exact question raised by this appeal is whether this common-law rule was modified or changed by the statutory regulation. The in- jured boy was under fifteen years of age, and if the appellee com- pany employed him for the purpose of oiling machinery it did so in violation of the statute. Is it, therefore, in position to set up in this case the rule which presumes a boy over fourteen to be capable of appreciating danger so a? to apply the rule of contributory negli- gence to his acts, when the legislature in express terms provided that an employer shall not engage a person under the age of fifteen years to perform this dangerous w^ork? After full consideration we are unanimously of the opinion that the legislature, under its police power, could fix an age limit below which boys should not be employed, and when the age limit was so fixed, an employer w^ho violates the act by engaging a boy under the statutory age does so at his own risk, and if the boy is injured while engaged in the per- formance of the prohibited duties for which he was employed, his employer will be liable in damages for injuries thus sustained. This rule is founded on the principles that when the legislature definitely established an age limit under which children should not be em- ployed, as it had the power to do, the intention was to declare that a child so employed, did not have the mature judgment, experience As to the effect of the contributory negligence of a plaintiff bitten by a dog, when by statute the person keeping it is liable without notice of its fero- cious character, compare Quinibv v. Woodbury, 63 N. H. 370 (1885). with Husscy V. King, 83 Maine 568 (1891). Schultz v. Griffith, 103 Iowa 150 (1897), Kelley v. Killourey, 81 Conn. 320 (1908), and Peck v. Williams 24 R. I. 583 (1903). 13/6 PINOZA V. NORTHERN CHAIR CO. and discretion necessary to engage in that dangerous kind of work. A boy employed in violation of the statute is not chargeable with contributory negligence or with having assumed the risks of em- ployment in such occupation. There can be no question that this statute was intended as a protection to the employees, and its ob- ject was to prevent children under the age of fifteen years from being employed in and around the anthracite coal mines in the dan- gerous kind of work designated in the act, and it should be given a construction to best effectuate the purpose of its enactment. This exact question has not been before our courts, but it has been passed upon by the courts of many other jurisdictions, and so far as we are informed the rule hereinbefore stated has been uniformly fol- lowed. Judgment reversed and a venire facias de novo awarded.^ PINOZA v. NORTHERN CHAIR COMPANY. Supreme Court of Wisconsin, 1913. 152 Wis. 473. Marshall, J. The statute claimed to have been violated is as follows : "No child under the age of sixteen years shall be employed in adjusting any belt or in oiling or assisting in oiling, wiping or clean- ing any machinery when the same is in motion or in operating or assisting in operating any circular or handsaw, wood shaper, wood jointer, planer, sandpaper or wood polishing machine * * '•'• or in any other employment dangerous to life or limb * * *" Sec. 1728a, Stats. (Laws of 1909, ch. 338). Any one '"who" shall violate "any of the provisions of this act" shall be deemed guilty of a misdemeanor, and upon conviction there- "^ Accord: American Car etc. Co. v. Armentraut, 214 111. 509 (1905); Strafford v. Republic Iron etc. Co., 238 111. 371 (1909) ; Inland Steel Co. v. Yedinak, 172 Ind. 423 (1909) ; Marino v. Lehmaier, 173 N. Y. 530 (1903), but see Kahn v. Standard Optical Co., 110 App. Div. 501 (N. Y. 1906) ; Glu- cina V. Goss Brick Co., 63 Wash. 401 (1911) ; Stehle v. Jaeger Automatic Machine Co., 220 Pa. St. 617 (1908), 225 Pa. St. 348 (1909), where plaintiff was held entitled to recover though injured while dealing with a machine outside his appointed field of dutj' and which he had been forbidden to touch. In Nairn v. National Biscuit Co., 120 Mo. App. 144 (1906), it is held that mere heedless inadvertence is no defense. On the other hand it is held in many cases that, if the child is in fact capable of appreciat- ing the danger of his act he may not recover, Darsan v. Kohlmann, 123 La. 164 (1909) ; Berdos v. Tremont etc. Mills, 209 Mass. 489 (1911) ; Perry v. Tocer, 90 Minn. 431 (1903) ; Sterling v. U'nion Carbide Co., U2 Mich. 284 (1905) ; Rahn v. Standard Co., supra, while it is held ir. Brombcrg v. Evans Laundry Co., 134 Iowa 38 (1907), that in view of the legislative declara- tion of such minor's incompetence, the burden of proving capacity lay on defendant. In Norman v. Virginia-Pocahontas Coal Co., 68 W. Va. 405 (1910), the court held, though with a strong dissent,^ that the de- fendant engaging boys under legal age is liable for all injuries made reasonably probable by their youthful heedlessness, etc., but not for injuries caused by acts which they in fact know are dangerous ; see for a somewhat similar idea Queen v. Dayton Coal & Iron Co., 95 Tenn. 458 (1895), and Iron & Wire Co. v. Green, 108 Tenn. 161 (1901). PINOZA V. NORTHERN CHAIR CO. 13/7 of shall be fined" not less than twenty-five dollars nor more than one hundred dollars for each offense," or be imprisoned "in the county jail not longer than thirty days." Sec. 1728//, Stats. (Laws of 1909, ch. 338). It must be conceded that defendant acted in defiance of the written law in employing plaintiff' and that if such circumstances rendered the defense of contributory negligence unavailing, as the trial court decided, the judgment must be affirmed. The contention that contributory negligence has, uniformly, been held by this court to be a defense in an action based on negli- gence, and therefore the decision below is wrong, is beside the case, it fails to appreciate that there can be no contributory negligence, strictly so called, except in cases of concurrent inadvertence, de- nominated ordinary negligence or want of ordinary care. Bolin v. C, St. P., M. & O. R. Co., 108 Wis. 333, 84 N. W. 446; Havcr- hind V. C, St. P., M. & R. Co., 143 Wis. 415, 128 N. W. 273 ; Asti',1 V. C, M. & St. P. R. Co., 143 Wis. 477, 128 N. W. 265. There must be inadvertence of the defendant or there can be no contribu- tory negligence of the plaintiff'. Where the fault of the person caus- ing the injury is characterized by advertence, denominated in our system, gross negligence, — wrong having the element of actual in- tent to injure or such disregard of consequences as to be equivalent thereto,^ and so, called constructive intent,- — the contributory fault f ^ Knowlton, C. J. in Banks v. Braman, 188 Alass. 367-369, "The difference , in culpability of the defendant, which distinguishes these different kinds pfj ^ liabiHty," (for ordinary negligence and wanton negligence) "is something ^ more than a mere difference in the degree of inadvertence. In one case there need be nothing more than a lack of ordinary care, which causes an injury to another. In the other case there is wilful, intentional conduct whose tendency to injure is known, or ought to be known, accompanied by a wanton and reckless disregard of the probable harmful consequences from which others are likely to suffer, so that the whole conduct together, is of the nature of a wilful, intentional wrong." It is not necessary that the de- fendant intended to injure the plaintiff, Aiken v. Holyoke St. R. Co., 184 Jklass. 269 (1903). Compare Holmes, J. in Pierce v. Cunard S. S. Co., 153 Mass.' 87 (1891), a case where the defendant's conduct clearly fell within the above definition of wanton negligence. For conduct held not amounting to such wanton negligence, see Lawrence V. Fitchhurg etc. R. Co., 201 Mass. 489 (1909) and Willis v. Boston & N. St. R. Co., 2m Mass. 589 (1911). ='See Knowlton, C. J. in Aiken v. Holyoke R. Co., 184 Mass. 269 (1903). p. 271, quoted in Banks v. Braman, 188 Mass. 367: "The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural con- sequences of his act, and treats him as guilty of a wilful and intentional wrong. It is no defence to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victim. In these cases of personal injury there is a constructive intention as to the consequences, which, entering into the wilful, intentional act, the law imputes to the offender, and in this way a charge which other- wise would be mere negligence, becomes, by reason of a reckless disre- gard of probable consequences, a wilful wrong. That this constructive in- tention to do an injury in such cases will be imputed in the aliscnce of an actual intent to harm a particular person, is recognized as an elementary principle in criminal law. It is also recognized in civil actions for recklessly and wantonly injuring others by carelessness." 1378 RADLEY V. LONDON & N. W. R. CO. of the person injured is not, properly, characterizable as contribu- tory negligence, and the general rule as to efficiency of such fault to save- the wrongdoer from the consequences of his act has no application. True, it is often said in such cases, contributory negli- gence is not a defense, but logically there is no such negligence pos- sible,^ as the term is ordinarily understood in the classification of the degrees of negligence as maintained here almost from the begin- ning of our system of jurisprudence. Astin v. C, M. & St. P. R. Co., 143 Wis. 477, 128 N. W. 265. So it will be seen that, it is somewhat of a misnomer to speak of fault of the plaintiff in this case as contributory negligence. Manifestly there was no negligence on the part of appellant, and could have been none, strictly speaking, falling within the class of faults regarded as mere want of ordinary care and dominated or- dinary negligence. The fault was advertent in character. ^ There was an actual or constructive intent to violate the law, equivalent, as indicated, to a constructive intent to cause the consequences which the l?w was designed to prevent.* ^ SECTION 3. The Defendant's Ability to Avoid Injury to the Plaintiff Exposed Thereto by His Own Negligence ("Last Clear Chance" Doctrine). RADLEY V. LONDON & NORTH WESTERN RAILWAY CO. Court of Exchequer, 1874. L. R. 187.3-4, 9 Ex. 71. Court of Exchequer, 1875. L. R. 1874-5. 10 Ex. 100. House of Lords, 1876. L. R. 1875-6, 1 App. Cos. 754. This was an action brought to recover damages from the de- fendants for injury done to a bridge upon the plaintiffs' siding, under circumstances which are fully stated in the judgment. The ' See McClellan, J., in Ga. Pac. R. Co. v. Lee, 92 Ala. 265 (1890), p. 270- 271, and see for the view that such wilful and wanton negligence is a cause so independent of previous conduct of the plaintiff, * * * {hat (the lat- ter) can not be considered a directly contributing cause of the injur}-, Knowl- ton, C. J. in Banks v. Braman, 188 Mass. 367 (1905), p. 370. "The ground on which it is held that, when an act of the defendant shows an injury inflicted in this way. the plaintiff need introduce no affirmative evidence of due care, that this previous conduct can not be considered a directly contributing caiise of the injury, and, in reference to such an injury, the plaintiff, without in- troducing evidence, is assumed to be in a position to claim his rights and to have compensation. So far as the cause of his injury is concerned, he is in the position of one who exercises due care." *In Pizzo v. Wiemann, 149 Wis. 235 (1912), an action under a statute making it a criminal offense to sell tov pistols, it was held that the negligence of the bov in its use did not defeat his father's risrht to recover for his death "The nature of the wrongful act was such that contributing negli- gence on the part of the last purchaser is immaterial to either criminal or civil liability of the seller's."— Marshall, J., p. 239. RADLF.Y V. LONDON & N. W. R. CO. 13/9 cause was tried before Brett, J., at the Liverpool Summer Assizes, 1873. The defendants contended that the evidence shov^ed contribu- tory negligence in the plaintiffs, and this question being left to the jury by the learned judge, they found for the defendants. A rule having been obtained for a new trial on the ground that the learned judge misdirected the jury in telling them that there was evidence of contributory negligence in the plaintiffs. Bramwell, B. This is a case of very great complexity, not so much in the facts as in the considerations to which they give rise. So much so that we have thought it desirable to put our opinion in writing. The material facts are as follows : — The plaintiff's are col- liery owners, who have sidings out of and on one of the defendants' lines ; over these sidings is a bridge belonging to the plaintiff's, with a headway of eight feet. It has been the course of business be- tween the plaintiffs and the defendants for the defendants to take from these sidings the plaintiffs' wagons loaded with coals and de- liver or leave them at their destination ; also to collect the plaintiffs'* wagons when empty, and bring them to the sidings, and there leave them. When the wagons were so left on the sidings, the plaintiffs dealt with them as they saw fit, i. e., took them to the pit to be loaded in such order and at such times as they pleased, or took them to their workshops if they needed repair. On a certain Saturday, after working hours, when the men were gone and the plaintiffs could only move them as they might on a Sunday, i. e., by some special engagement of workmen, the defendants brought and left on one of the plaintiffs' sidings some empty wagons of the plaintiffs', and a wagon, empty except that it had on it a wagon of the plain- tiffs' which had broken down and could not travel, and had to be brought in this way to the plaintiffs. The wagon so loaded was, with its load, eleven feet higli, and therefore could not pass under the bridge. It remained where so left. On the next Sunday night, after dark, the defendants brought in a very long train of the plain- tiffs' empty wagons, and pushed it on the siding where this wagon, loaded with the disabled wagon, was. The wagon was pushed as far as the bridge. Had it been empty it would have passed under- neath, and probably the defendants had often pushed wagons ir. this way under the bridge, though there was evidence to show that they had been requested not to push things on the siding beyond a pub- lic highway, which was some distance before getting to the bridge in the direction in which the defendants brought the train of empty wagons. This is, perhaps, of no moment. But the wagon so loaded coming to the bridge and being unable to pass underneath it, the train stopped, and those who had charge of it, without looking to ascertain the cause of the stoppage, gave momentum to the engine to such an extent that the wagon with its load knocked the bridge down. For this the action was brought. It is needless to say that there was evidence of negligence in the defendants, but the learned judge left it to the jury to say whether, and the jury did say that, there was contributory negli- gence in the plaintiffs, and found their verdict for the defendants 1380 RADLEY V. LONDON & N. W. R. CO. on that ground. We have to say whether the learned judge was right in the way in which he dealt with this question of contributory negligence. The plaintiffs contended, first, that there was no evidence of contributory negligence. The way the defendants put it was as fol- lows : They said the plaintiff's knew, or ought to have known, that the loaded wagon had been brought and left at the place where it was so left ; they knew it would not pass under the bridge ; they knew that the defendants would, or might bring empty wagons on the Sunday, and, to make room for what they brought, would, or might, push forward 'whatever they found on the siding, as they had done before ; that therefore the plaintiff's ought to have moved the loaded wagon, or taken out the broken one, or warned the defend- ants that it was there. The plaintiffs said, in answer to this, that, assuming they knew the wagon was there with the load, so did the defendants ; that the defendants knew also the height of the bridge, "and that the wagon with its load would not pass under it ; that the defendants knew that working hours were over when they brought it, and that practically the plaintiffs could not move or unload it till Monday ; and they said they had a right to suppose that the defend- ants Avould not be so negligent, under these circumstances, as to drive this loaded wagon at the bridge, under which it could not pass, and which it would knock down if it pushed against it with suffi- cient force, the more especially as there was another unoccupied siding on which the empty wagons brought on the Sunday might have been put ; that in truth the alleged negligence in the plaintiffs was, not foreseeing and guarding against the negligence of the de- fendants ; that even if they themselves had placed the loaded wagon there, they had no right to anticipate that the defendants would be so negligent as to put any wagon on the siding without seeing what was there, and to push with such force as they did when they found an obstruction. We think this reasoning correct, and, consequently, that there was no evidence of contributory negligence for the jury. Suppose the defendants had brought the loaded wagon on Sunday night, and pushed as they did, then there would clearly have been no contribu- tory negligence ; but how does that differ from the present case, un- less it is supposed there was some duty in the plaintiffs to move the loaded wagon on the Saturday, or to give some notice ?^ The plaintiff's further contended, what perhaps is much the same thing differently put, that, according to Daz'ics v. Mann, 10 M. & W. 546, assuming there was negligence on their part, yet, if the de- fendants could have avoided doing the mischief by reasonable care, they were bound to do so; and the plaintiffs objected to the learned judge's summing-up, that this had not been left to the jury. This also seems well founded. There must, therefore, be a new trial. The defendants took an appeal to the Exchequer Chamber. ^ Compare tlie opinion of Taft, J., in Lotlisville &- N. R. Co. v. East Tenn. R. Co., 60 Fed. 993 (1894\ especially pp. 996-997, and Pa. R. Co. v. ^hitc, 88 Pa. 2,27 (1879). RADLEY V. LONDOX & X. W. R. CO. I381 Blackburx, J.- In this case the rule in the Court below for ? new trial was made absolute on two .s^rounds, the principal one being that the Court thought that there was no evidence of contribu- tory negligence, by which I understand any neglect of duty or con- duct on the part of the plaintiffs sufficient to disentitle them to re- cover in this action ; the second, that, assuming that there was any such evidence, the case was not properly left to the jury. The ma- jority of the Court, I think, are of opinion that on neither ground was the court below right. I will first state the question, which is really the important one, whether there was evidence which, if properly left to the jury, would take from the plaintiffs the right to recover, assuming that the de- fendants were guilty of negligence. I believe that there is no dis- pute, and that for many years there has been no conflict of authority as to what really is the law upon the subject. I think that all the cases uniformly agree in this, that though the plaintiff, or the per- son who complains of negligence, may himself have been guilty of negligence, and may have put his property in some place where it is exposed to danger, though leaving it there was negligence on his part, yet that does not disentitle him to recover for the conse- quences of negligence on the part of other persons, which has in- jured him or his property. A man is bound, when he puts himself in a place where he knows other persons are coming, and are in the habit of coming, not only for his own safety, but for that of his neighbors, to take reasonable care of himself and of his property ; but, whether he does this or not, it does not relieve anybody else who comes there from the duty of also taking reasonable care. The question was asked, would a reasonable man, under the circumstances, have left that high wagon there (because it was its height which made it dangerous), standing, as it did, for thirty- six hours without removing it? It is true that it was after work- ing hours, and after the workmen had left the colliery, but would a prudent man have removed it from the siding? The question was clearly one for the jury, and the jury have rightly answered it by finding that there was negligence. But then it does not follow that the defendants might not be liable. The strongest evidence of their negligence is this, when they were pushing the wagons into the siding and felt a stoppage, which, as we know, was the high wagon coming against the bridge, they concluded that the bridge was high enough to pass under, took back the engine and then brought it with such an impetus, that the trucks were shoved forward against the bridge and brought it down. This was certainly evidence for the jury of negligence on the part of the defendants, and if they thought that this negligence, notwithstanding the fact that the high wagon had been left there, was the proximate cause of the accident, the defendants would have been responsible. But that question was substantially left to the jury. It was pointed out in terms sufficient to bring the question before them, and there was no negligence on the part of the defendants in what they did, unless thev knew the " Mellor, Lush, Brett and Archibald. JJ., concurring, Denman, J., dissent- ing. 1382 RADLEY V. LONDON cS: N. \V. R. CO. high wagon was there. For if not, there is nothing on their part but what takes place in the ordinary course of business. If that is so I venture to say it is not a question about words, but there .was a state of things which would disentitle the plaintiffs to recover, because I think it would appear that not merely the negligence of the plaintiffs in leaving this high wagon standing there was a causa sine qua non, a cause without which the thing would not have hap- pened, for it clearly would not have happened unless the high wagon had been • standing there, but also that if the mis- chief would not have happened but for that negligence on the part of the plaintiffs, and all that w^as imputed to the defend- ants was dependent upon this, whether or not they ought to have supposed that the high wagon was there, then, if the defendants had no reason to believe that it was there, they were guilty of no negligence at all,^ and consequently the plaintiff's negligence in leav- ing it there was the proximate cause of the accident, and not merely the causa sine qua nori. The distinction between this and Davies V. Mann., 10 M. &. W. 546^ and that class of cases, is that though the donkey, which was left there, was the causa sine qua non, yet the defendant was guilty of negligence in driving furiously and in a way which would have been negligent even if there had been no donkey there, because he had every reason to expect that other peo- ple would come there, and even if an unfettered donkey had been there, although it might have got out of his way, yet it would have been liable to be run over, and therefore the defendant was guilty of negligence. Then the question comes to be, could the plaintiffs avoid the consequences of the defendants' negligence? This being so, I can not agree with the Court below, that there was no evidence of such a state of things as to disentitle the plaintiffs to recover. The plaintiffs thereupon appealed to the House of Lords. Lord Penzance. The first question on the appeal is, whether the Court of Exchequer Chamber was right in holding that there was any evidence, proper to be submitted to the jury, tending to the conclusion that the plaintiffs themselves had been guilty of some negligence in the matter, and that such negligence had contributed to produce the accident and injury of which they complained. The decision of the Exchequer Chamber upon this matter ought, I think, to be upheld. The remaining question is whether the learned Judge properly directed the jury in point of law. The law in these cases of negli- 'In The Steam Dredge No. i, 134 Fed. 161 (C. C. A. 1st Circ. 1904), it was held reversing the decision of Hale D. in 122 Fed. 679 (1903) that, as the admiralty rule of divided damages was less stringent than the com- mon law, the rule denying recovery to a plaintiff guilty of contributory negligence rule in the principal case, which he described as "ameliatory" and introduced for the purpose of "avoiding results which otherwise might shock the common sense of justice," has no application to admiralty cases, and see also the cases cited in his opinion: but compare Cay::er v. Carron, L. R. 9 App. Cas. 873 (1884), where the decision of the House of Lords can only be supported as an application of the rule in the principal case. I RADLEY V. LONDON & N. W. R. CO. I383 gence is, as was said in the Court of Exchequer Chamber, perfectly well settled and beyond dispute. The first proposition is a general one, to this effect, that the plaintiff in an action for negligence can not succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him. This proposition, as one of law, can not be questioned. It was decided in the case of Dazies v. Mann, lo M. & W. 546, sup- ported in that of Tuff v. Warman, 5 C. B. (N. S.) 573; 27 L. J. C. P. 322, and other cases, and has been universally applied in cases of this character without question. The only point for consideration, therefore, is whether the learned Judge properly presented it to the mind of the jury. It seems impossible to say that he did so. At the beginning of his summing-up he laid down the following as the propositions of law which governed the case: It is for the plaintiffs to satisfy you that this accident happened through the negligence of the de- fendants' servants, and as between them and the defendants, that it was solely through the negligence of the defendants' servants. They must satisfy you that it was solely by the negligence of the defendants' servants, or, in other words, that there was no negli- gence on the part of their ser\'ants contributing to the accident ; so that, if you think that both sides were negligent, so as to contribute to the accident, then the plaintiffs can not recover. This language is perfectly plain and perfectly unqualified, and in case the jurors thought there was any contributory negligence on the part of the plaintiff's' servants, they could not, without dis- regarding the direction of the learned Judge, have found in the plaintiffs' favor, however negligent the defendants had been, or however easily they might with ordinary care have avoided any ac- cident at all. The learned Judge then went on to describe to the jury what it was that might properly be considered to constitute negligence, first in the conduct of the defendants, and then in the conduct of the plaintiff's ; and having done this, he again reverted to the gov- erning propositions of law, as follows : "There seems to be two views. It is for you to say entirely as to both points. But the law is this, the plaintiff must have satisfied you that this happened by the negligence of the defendants' servants, and without any con- tributory negligence of their own ; in other words, that it was solely bv the negligence of the defendants' servants. If you think it was, then your verdict will be for the plaintiffs. If you think it was not solely by the negligence of the defendants' servants, your verdict must be for the defendants." 1384 RADLEY V. LONDON & N. W. R. CO. This again, is entirely without quaHfication, and the undoubted meaning of it is, that if there was any contributory neghgence on the part of the plaintiffs, they could in no case recover. Such a statement of law is contrary to the doctrine established in the case of Davies v. Mann, 10 M, & W. 546, and the other cases above al- luded to, and in no part of the summing-up is that doctrine anywhere to be found. The learned counsel were unable to point out any passage addressed to it. It is true that in part of his summing-up the learned Judge pointed attention to the conduct of the engine-driver, in determin- ing to force his way by violence through the obstruction, as fit to be considered by the jury on the question of negligence; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering. In point of fact the evidence was strong to show that this was the immediate cause of the accident, and the jury might well think that ordinary care and diligence on the part of the engine-driver would, notwithstanding any previous negligence of the plaintiff's in leaving the loaded-up truck on the line, have made the accident impossible. This substantial defect of the learned Judge's charge is that that question was never put to the jury. On this point, therefore, I propose to move that your Lord- ships should reverse the decision of the Exchequer Chamber, and direct a new trial. Lord Blackburn. My Lords, I agree entirely with the noble Lord who has first spoken as to what were the proper auestions for the jury in this case, and that they were not decided by the jury. I am inclined to think that the learned judge did in part of his summing-up sufficiently ask the proper questions, had they been answered, but unfortunately he failed to have an answer from the jury to those questions, it appearing by the case that the only finding was as to the plaintiff's negligence. I agree, therefore, in the result that there should be a new trial.'' Judgment of the Court of Exchequer Chamber reversed. Judgment of the Court of Exchequer restored, and a uezv trial ordered, with costs. * Accord: where the defendant actually knew of the helpless peril into which the plaintiff's negligence had brought him or had notice of facts sufifi- cient to indicate that the plaintiff cr some one else was in such peril. Chicago, Indianapolis & Louisville R. Co. v. Pritchard. 168 Ind. 399 (1906); Cayzcr V. Carron, L. R. 9 App. Cases 873 (1884). lil)el in admiralty for collision be- tween two vessels; Austin v. N. J. Steamboat Co.. 43 X. Y. 75 (1870). sim- ilar facts; Inland Coasting Co. v. Folsom, 139 X. S. 551 (1890), p. 558: Costello V. Third Ave. R. Co.. 161 X. Y. 317 (1900), and Smith v. Connecticut R. etc. Co., 80 Conn. 268 (1907) ; Louisville Sr N. R. Co. v. Harrod. 155 Ky. 155 (1913); Valin v. Milwaukee & X R. Co.. 82 Wis. 1 (1892): but see Bolin v. Chicago, St. P., M. & O. R. Co., 108 Wis. 333 (1901). and Trsch v. Milwaukee Electric R. & Liqht Co.. 108 Wis. 593 (1901) : Red ford v. Spo- kane St. R. Co., 15 Wash. 419 (1896); Eastburn v. Norfolk & W. R. Co.,, n llT" I IOWA CKNT. R. CO. V. WALKKR. I38; IOWA CENT. R. CO. et al. r. WALKER. Circuit Court of Appeals, Eighth Circuit, 1913. 203 Fed. Rep. 685. Wm. H. Munger, District Judge, This action was brouglit by the defendant in error, who will be designated as plaintiff, against plaintiff in error, who will be designated as defendant, to recover for an injury sustained by being struck by the engine of defend- ant's train. It appears that plaintiff was in the employ of defendant as telegraph operator at New Sharon. Iowa, and als o assisted the station agent in and about handfing the baggage, receiving the same from trains, and delivering the same to train s. The defendant's railroad track ran practically north and south on the east side of the depot ; there being a platfornTlSeiween the depot and the tracks. A freight train from the north was about two hours late. Plain- tiff inquired of the dispatcher where the train was, and 'A'as informed that it had not yet reached Sears horo, a station about eight miles north of New Sharon. Plaintiff" then went out to a baggage truck standing close to the edge of the platform next to the track to the northeast of the depot, took a hand grip off, handed it to a lady, had a little conversation with a gentleman, returned to the truck, pushed it along on the platform to the south, with a view of taking the truck to the west side of the depot, where the train of another road was soon expected. There was snow on the platform, varying in depth, according to the evidence, from three to eight inches, the snow had been tramped down some, and a path had been shoveled down to the edge of the platform. Plaintiff", to avoid the snow, wheeled the truck close to the east edge of this platform. Just about as he reached the southeast corner, and while turning or aliout to turn the truck to the west, he was struck by this freight train com- ing on the defendant's track ^rom the north, and sustained the in- juries complained of. He alleged in his petition negligence of the defendant in permitting the accumulation of snow upon the ])]at- form, the running of the train at a negligent rate of speed, failing to give any signal by blowing the whistle or ringing the bell, and further alleged negligence upon the part of the defendant, in that, after the engineer discovered him in a place of peril, by the exer- cise of ordinary care, he could have avoided the injury. 34 W. Va. 681 (1891), and see cases cited in note to lozva Ccutral R. Co. v. Walker, post, p. 1387. It is immaterial whether the defendant's subsequent conduct is active or passive, he is as fully liable where, with knowledge of the plaintiff's peril, he fails to take steps to stop the vehicle which he is driving so as to prevent a collision, as in Tanner v. Louisville & N. R. Co., 60 Ala. 621 (1877), or to take any steps apparently necessary to avoid doing injury to the plaintiff, Denver & Berkeley Park Transit Co. v. Dzvyer, 20 Colo. 132 (1894) ; Louis- ville etc. _R. Co. v. Harrod, 155 Ky. 155 (1913), as where he is guilty of positive injurious action, such as the improper navigation after knowledge that the plaintiff's boat is in a position of danger, as in .-lusfin v. X. J. S. S. Co., 43 N. Y. 75 (1870), and Cay~-er v. Carron, L. R. 9 App. Cases 873 (1884), or the act of a motorman in accelerating the speed of his car after observ- ing that the plaintiff is negligently attempting to cross the tracks, as in Cosfello V. Third Ave. R. Co., 161 N. Y. 317 (1900), and Smith v. Connecticut R. Co., 80 Conn. 268 (1907). 1386 IOWA CENT. R. CO. Z^. WALKER. T '\ » The trial court, in its charge to the jury, ehminated all ques- tions of negligence excepting the latter, saying to the jury: "But, as I have already said to you, down to the time he was within the danger limit, could he, by the exercise of diligence, have "been seen by the engineer to be inside of the danger limit? Then, from that point, had this engineer exercised care and freedom from negligence, as he ought to do, could he then have averted the in- jury? If not, then your verdict will be in favor of the company. If he, the engineer, could have averted the injury after he saw the TTazardous position in which the plaintiff had placed himself, then "yoiTwill find a verdict for the plaintiff." -—■"^This instruction was faulty, in that it submitted to the jury the question as to whether or not, in the exercise of diligence on part of the engineer, he could have discovered that the plaintiff was inside the danger limit. The instruction in that respect was ex- cepted to by defendant. In Denver City Tramway Co. v. Cobb, 164 Fed. 41, 90 C. C. A. 459, Justice Van Deva^iter, then Judge Van Devanter, speaking with regard to the exception which permits plaintiff to recover, not- withstanding his own contributory negligence, said : "The exception does not apply where the plaintiff's negligence or position of danger is not discovered by the defendant in time to avoid the injury." In Hart v. Northern Pac. Ry. Co., 196 Fed. 180, 116 C. C. A. 12, this court said : "It presupposes or concedes the existence of contributory neg- ligence, and seeks to avoid its consequence by subsequent occur- rences. If it were true that Starr was in a state of actual peril, that the defendant had actual knowledge of that peril, and after that knowledge was acquired failed to exercise ordinary care to prevent injuring him, these facts might create a cause of action, or might excuse the contributory negligence which brought Starr into his position of peril." Numerous other authorities might be cited to the same effect, to wit, that the defendant's liability under what is known as the last chance doctrine is only where, after actual discovery of the plaintiff's perilous position the injury could be avoided by the ex- ercise of ordinary care and diligence. There was a conflict in the evidence as to whether the plain- tiff, while he was wheeling the truck on the platform to the south, was so near the track that he would be struck by the overhang of the engine, or whether the first time that he placed himself in po- sition to be struck by the overhang of the engine was as he swung the truck to turn to the west. That, however, was a proper ques- tion for the jury. Assuming, however, that the engineer saw the plaintiff moving so near the edge of the platform that he might be struck by the overhang of the engine, he had a right to assume that the plaintiff would step to one side out of the danger line, and the engineer was not called upon to act until he discovered that the plaintiff probably would not step to one side. Little Rock Ry. &• TEAKLE V. SAN PEDRO, ETC., R. CO. I387 Eke. Co. V. Billings, 173 Fed. 903, 98 C. C. A. 467, 31 L. R. A. (N, S.) 1031, 19 Ann. Cas. 1173; St. Louis & S. F. R. Co. v. Sum- viers, 173 Fed. 358, 97 C. C. A. 328; ///. Cent. Ry. Co. v. Ackennaii, 144 Fed. 959, 76 C. C. A. 13; Lake Shore & Michigan Southern Ry. Co. V. Miller, 25 Mich. 274; Southern Raikvay Co. v. Bailey, 1 10 Va. 833, 67 S. E. 365, 27 L. R. A. (N. S.) 379; Beeni, Adm'r, V. Tama & Toledo Elec. & Ry. Co., 104 Iowa, 563, 73 N. W. 1045. The evidence, however, is undisputed that, as soon as the en- gineer operating the train discovered that plaintiff was in a position of danger he apphed the emergency brake, and stopped the train as soon as possible, the train coming to a stop within about 100 feet. At the close of all the evidence, defendant requested the court to instruct a verdict for the defendant, which was overruled, to which an exception was taken. As the evidence was indisputable and conclusive that, as soon as the engineer knew that the plain- tiff was in a situation of danger, he immediately did all that could be done to avoid the accident by applying the emergency brake, the requested instruction should have been given. The judgment is reversed, with directions to grant a new trial. ^ ih TEAKLE V. SAN PEDRO, L. A. & S. L. R. CO. Supreme Court of Utah, 1907. 32 Utah 276. Straup, J. This court, in harmony with the great weight of authority, seems to be committed to the rule (when the injured or deceased person was not a trespasser) that the defendant's act of negligence will be regarded as. the sole proximate cause of the in- jury, not only when relating to a breach of duty occurring after the consequences of contributory negligence have been discovered, ^Accord: Richmond etc. R. Co. v. Didzoneit, 1 App. Cas. (D. C.) 482 (1893) ; Cullcn v. B. & P. R. Co., 8 App. Cas. (D. C.) 69 (1896) ; Krcnzer V P., C, C. & St. L. R. Co., 151 Ind. 587 (1898), but see Indianapolis Trac. &c Co V. Kidd, 167 Ind. 402 (1906) ; Indianapolis and Traction Co. v. Croix, post, -^.lAQZ; Gilbert v. Erie R. Co., 97 Fed. 747 (1899); Herbert V. So. Pac. R. Co., 121 Cal. 227 (1898); Bonrrett v. Chicago & N. IV. R. Co., 152 Iowa 579 (1911); Purcell v. Chicago & N. W. R. Co., 117 Iowa 667 (1902); Anderson v. Minn., St. P. & S. M. R. Co., 103 Minn. 224 (1908) ; Chicago, B. & Q. R. Co. v. Lillex, 93 N. W. 1012 (Nebr. 1903), but see Chicago, B. & Q. R. Co. v. JV\more, 40 Nebr. 645 (1894) and Omaha St. R. Co. v. Martin, 48 Nebr. 65 (1896); Stewart v. Portland Ry. etc. Co., 58 Ore. Z77 (1911), semble : Smith v. So. Pac. R. Co., 58 Ore. 22 (1911), semble, and Scholl v. Belcher, 63 Ore. 310 (1912). where the court refused to decide whether knowledge was essential. See, also, Bragg v. Central New England R. Co., 152 App. Div. 444 (N. Y. 1912), where it was held that where the negligence of each consisted in the failure to discover the negligence of the other there could be no recovery; a flag- man sent out by a train, fell asleep by the side of the track, and not being seen by the engineer, was there run over by his train. It is clearly not necessary that the defendant should know of the particular danger of the" particular plaintiff, it is enough that he is warned of danger ahead, whether by the warnings of others or by his senses, and fails to take steps to bring his actions under complete control so that he may avoid the 1388 TEAKLE v. SAN PEDRO, ETC., R. CO. but also when, in the exercise of ordinary care, such consequences could have been discovered, if a breach of duty intervened or con- tniiT ecl~aft gr:-th€-c-ommission of the contributory negligence. Wliile th€^reach of duty must be subsequent to the commission of the coritrTBIitofy negligence, yet such breach of duty may be before, as well as after, the discovery of the peril. There is much reason for the distinction that the railroad com- pany should not be held liable in case of an actual or conscious trespasser until his position of danger is discovered, and should be held liable in case of one not a trespasser exposed to peril through negligence, not only after the consequences of such negli- gence have been discovered, but which ordinarily could have been discovered, if there was a breach of duty continuing or intervening after the commission of the contributory negligence.^ In the one injury, Chicago, I. & L. R. Co. v. Pritchard, 168 Ind. 399 (1906) and cases cited therein, engineer ignored signals to stop and ran down plaintiff who was pinned down by material fallen from freight car. As to the liabiHty of a defendant who sees on or near his path an object, which from its appear- ance may or may not be a helpless human being, see Loiiisz'iUe, H. & St. L. R. Co. v. Hathaway, 121 Ky. 666 (1905), 2 L. R. A. (N. S.) 498, with val- uable note. ^Accord: Tuff v. Warman, 2 C. B. (N. S.) 740 (18^?),. 5' C. B. (N. S.) 573 (1858) ; Kansas City, Ft. S. & M. R. Co. v. Cook, 66 f'ed. 115 (1895) : Texas & P. R. Co. v. Nolan, 62 Fed. 552 (1894) ; Baltimore & Ohio R. Co. V. Anderson, 85 Fed. 413 (1898); Birmingham R. Co. v. Brantiv, 141 Ala. 614 (1904) ; Denver & R. G. R. Co. v. Buffehr, 30 Colo. 27 (1902) ; Elliott V. New York &c. R. Co., 84 Conn. 444 (1911); Louisville & N. R. Co. v. Earl, 94 Ky. 368 (1893) ; Owensboro Citv R. Co. v. Hill, 21 Ky L. 1638 (1900) ; Flynn V. Louisville Ry., 110 Ky. 662 (1901); Baltimore & Ohio R. Co. v. State to use of Trainer, Zi Md. 542 (1870) : Baltimore Consolidated R. Co. V. Rifcozmtc, 89 Md. 338 (1899); Battishill v. Humphrevs, 64 Alich. 494 (1887) ; Cooper v. Lake Shore & M. S. R. Co., 66 Mich. 261 (1887) ; Rapp V. St. Louis Transit Co., 190 Mo. 144 (1905) ; Kolh v. St. Louis Transit Co., 102 Mo. App. 143 (1903) ; Bunting v. Cent. Pac. R. Co., 16 Nev. 277 ( 1881) : Lake Shore & M. S. R. Co. v. Schade, 15 Ohio C. C. 424 (1895), 57 Ohio St. 650 (1897) ; Drown v. Northern Ohio Trac. Co., 76 Ohio St. 234 (1907) ; Bullock V. Wilmington & IV. R. Co.. 105 N. Car. 180 (1890); Bogan v. Carolina Cent. R. Co., 129 N. Car. 154 (1901) ; H. & T. C. R. Co. v. Svvipkins, 54 Tex. 615 (1881); Baltimore & Ohio R. Co. v. Few, 94 Va. 82 (1896). See Costello v. Third Ave. R. Co., 161 N. Y. 317 (1900) with which compare Rider v. Syracuse Rapid Transit Co., 171 N. Y. 139 (1902), Green v. Erie R. Co., 11 Hun 333 (N. Y. 1877), and also see Bodie v. Charleston & W . C. R. Co., 61 S. Car. 468 (1901). A passenger seeking to alight from a railroad or street railway car and carelessly going upon the step while the car is in motion, may recover if the conductor or motorman caused the speed to be suddenly increased, so jolting her from her negligently perilous position, Washington etc. R. Co. V. Harmon, 147 U. S. 571 (1893) ; Peoples Pass. R. Co. v. Green, 56 Md. 84 (1880); Baltimore Consolidated R. Co. v. Armstrong, 92 Md. 554 (1901): Central of A'ew Jersey R. Co. v. Van Horn, 38 N. J. L. 133 ( 1875) ; Catvfield V. Asheville R. Co.. Ill N. Car. 597 (1892); see also Omaha St. R- Co. v. Martin, 48 Nebr. 65 (1896). So where a street railway car is discharging passengers, those in charge of another car, approaching the point on parallel tracks, are bound to have the latter in such control that they can avoid striking those passengers of the first car who, in their effort to reach the opposite pavement, may walk behind their own car upon such parallel track. Louisville R. Co. v. Hudgins. 124 Ky. 79 (1906); Rapp v. St. Louis Transit Co., 190 Mo. 144 (1905); contra, Buzby v. Philadelphia Traction Co.. 126 Pa. St. 559 (1889). This TEAKLE V. SAN PEDRO, ETC., R. CO. 1 389 instance the train operatives were not called upon to expect or anticipate the trespass or the presence of persons, and hence owed no duty of lookout or of giving warnings. In such case no duty was imposed on them until the trespasser was discovered in a posi- tion of peril. In such case the liahility of the company must solely depend upon a breach of duty subsequent to the discovery.- If, on the other hand, through a long usage or custom the public has made a thoroughfare of the track in a populous city or thickly set- tled community though not with any express authority but under circumstances of an implied license, the train operatives are required to reasonably, expect and anticipate the probable presence of per- sons on or near the track at such place, and there is consequently imposed on the train operatives a duty towards such persons of a reasonable lookout.^ When, therefore, it is said that the railwav company is liable in such case for an omission of duty on the part principle is "jlso applied where passengers alighting at a station from a steam railway train must, in order to reach the platform, cross the intervening railroad track, Warner v. B. & O. R. Co., 168 U. S. 339 (1897). In such case it is held in Pennsylvania R. Co. v. White, 88 Pa. 327 (1879), that the plain- tiff is entitled to rely upon the company performing its duty not to run trains upon such intervening track and is not guilty of negligence in failing to stop, look or listen before crossing it. ^ In many jurisdictions the railroads are held bound to keep a lookout for trespassing cattle and to be liable notwithstanding the negligence of the owner in allowing his cattle to stray, if their peril could have been observed and the collision avoided, O'Kcefe v. Chicago R. I. & P. R. Co., 32 Iowa 467 (1871) ; Masscr v. Chicago R. I. & P. R. Co., 68 Iowa 602 (1886); Tennis v. Inter State Consolidated Rapid Transit R. Co., 45 Kans. 503 (1891) ; Halev v. Kansas Citv M. fr B. R. Co., 113 Ala. 640 (1896); St. Louis, I. M. & S.-* R. Co. v. Mondav, 49 Ark. 257 (1887); L. & N. R. Co. V. Howard, 82 Kv. 212 (1884) ; Russell v. Maine Cent. R. Co., 100 Maine 406 (1905); Ricketts v. B. & O. R. Co., 69 Md. 494 (1888); Locke V. First Div. St. Paul R. Co., 15 Minn. 350 (1870) ; Egan v. Montana Cent. R. Co., 24 Mont. 569 (1901) ; Terrv v. New York Cent. R. Co., 22 Barb. 574 (N. Y. 1855) ; Ward v. So. Pac. R. Co., 25 Ore. 433 (1894) ; Seaboard & R. Co. V. Joyner. 92 Va. 354 (1895) ; Newport News & M. V. Co. v. Howe, 52 Fed. 362 (1892) ; Gulf C. & S. F. R. Co. v. Bolton, 2 Ind. Ter. 463, 51 S. W. 1085 (1899). " So it is held in many jurisdictions that the railroads are bound to keep a lookout to observe the presence of trespassing cattle upon their tracks and are bound to keep a lookout for human beings there trespassing, at least at those points where the public is accustomed to use the track for crossing or to walk upon or by the side of it, Isbcll v. A''. Y. & N. H. R. Co., 27 Conn. 393 (1858) ; Gorman v. Pac. R. Co., 26 Mo. 441 (1858) ; Chicago & N. W. R. Co. V. Barric, 55 111. 226 (1870) ; Kcrivhacker v. Cleveland, C. & C. R. Co., 3 Ohio St. 172 (1854), trespassing cattle; accord, L. R. & F. S. R. Co. V. Finlev, 37 Ark. 562 (1881), but see Memphis & L. R. Co. v. Kerr, 52 Ark. 162 (1889) ; Chesapeake & O. R. Co. v. Keelin, 22 Ky. L. R. 1942 (1901) ; Pickett V. Wilmington & W. R. Co., 117 N. Car. 616 (1895) ; Bogan v. Car- olina Cent. R. Co., 129 N. Car. 154 (1901) ; H. & T. R. Co. v. Svmpkins, 54 Tex. 615 (1881) ; St. Louis & S. W. R. Co. v. Shiflct, 98 Tex. 326 (1904) ; Murphy v. Wabash R. Co., 228 Mo. 56 (1910), trespassing persons. See note to East Kentucky R. Co. v. Poivell, ante. While a railroad is not bound to keep a lookout to see whether horses, which may be standing on the highway near the tracks, are frightened by the approach of the train, those in control of the train must, if the fright of such a horse is discovered, take steps to prevent harm resulting therefrom, Louisville & N. R. Co. v. Harrod, 155 Ky. 155 (1913). 1390 FREN'Cil r. GRAND TRUNK R. CO.. of the train operatives, not only after the consequences of the in- jured or deceased's neghgence have been discovered, but also for such an omission of duty, as had it been reasonably performed, such consequences could ordinarily have been discovered, it neces- sarily implies the existence of a duty owing by the train operatives toward the injured or deceased person before as w^ell as after the commission of the contriluitory negligence. In other words, before a person inflicting an injury can be charged with an omission of duty in failing to discover a perilous situation of another, there jnu^L-be a duty owing from him to the injured or deceased person, which, ha d it been performed with reasonable care, would have dis- cl osed to h im the exposed situation of the person receiving the in- Tn Vy FRENCH V. THE GRAND TRUNK RAILWAY CO 'V Supreme Court of Vermont, 1904. 76 Vt. 441. Start, J. The action is for the recovery of damages alleged to have accrued to the plaintiff by reason of being struck by an engine while attempting to cross the defendant's railroad track. The defendant requested the court to instruct the jury, "that on all the evidence in the case the plaintiff is not entitled to recover." This is, in effect, a motion for a verdict, and sufficiently states the ground of the motion ; and, by excepting to the refusal of the court to comply with the request, the defendant has reserved for the con- sideration of this Court the question of w.hether, upon the most favorable view for the plaintiff of all the evidence, he was entitled to recover, ^The defendant's train was being backed over a part of its tracks which the public were accustomed to use as a crossing. Tlie brakeman who was keeping a lookout on the front car saw the plaintiff trying to cross the track and called to him and as soon as the train struck him sig- nalled to the engineer to stop the train, but the engineer was not watching for the brakeman's signal, so made no effort to stop. The plaintiff was thrown under the train, which was 180 feet long, and was not seriously hurt until struck and killed by the fire box of the locomotive. The court held that it was error to exclude evidence that the train could have been stopped within twenty feet, since, though the plaintiff's failure to look out for the approach of the train was negligence concurring with that of the defendant to produce the original collision, so that he could not have recovered for injuries then received; his negligence was spent when struck and rendered powerless to help himself, and the evidence tended to show that had the engineer performed the duty owing to the plaintiff as one of the public to be on the alert when approaching this crossing, he could^ by stop- ping the train, have avoided killing him. Accord: Metropolitan St. R. Co. V. Arnold, 67 Kans. 260 (1903), where the defendants' motorman had he been looking out, could have observed the plaintiff who negligently tried to cross in front of the car and after being struck, clung, practically unhurt. to the fender while the car proceeded 75 feet farther and then was drawn under the wheels and killed, with which compare Dyerson v. R. Co., note to Frcwh v. R. Co., post; contra, Bourrett v. Chicago & N. W. R. Co., 152 Iowa 579 (1911). reversing on rehearing Bourrett v. Chicago & .Y. W. R. Co., 121 N. W. 380 (Iowa 1909), where a boy running across a track after a ball was struck by a train backing without a lookout and was dragged for >■ con- siderable distance before losing his hold and falling under the wheels. FRENCH V. GRAND TRUNK R. CO. I39I The plaintiff gave evidence tending to show, that he walked from the puhlic crossing through the railroad yard of the defend- ant, along the side of a lot of box cars some two hundred and thirty- feet, and then passed the end of the line of box cars ; that he looked to the right and left, went right along and attempted to cross the defendant's main line and, in so doing, was struck by the defend- ant's express train, coming from the west ; that, as he passed the end of the box cars, he could see toward the west a distance of the length of two or three cars ; and that he knew it was about time for the express to arrive and that it was dangerous to be on the track. The actual measurements of the surveyor, which were disputed only by estimates, from the position of a man stepping over the fiorth rail, show that a person could see one hundred and eighty-eight feet along the north rail, and two hundred and twenty-three feet along the south rail. The train made a good deal of noise, and, upon the shout of warning from by-standers, the plaintiff did not quicken his pace in any way, but looked up, not in the direction of the approach- ing train, but in the direction of those who called to him ; and, at the time he was struck, he was stepping over the last rail — had one foot over. Upon these facts the plaintiff was not entitled to recover. There is no view of the evidence that relieves him from the charge of con- tributory negligence. He was in the possession of all his mental and physical faculties. He knew the express train was due. He was struck as he was stepping over the last rail. One step would have brought him to a place of safety. Assuming that he could see along the track over which the train was approaching for a distance of only the length of two or three cars, as testified by him, if he had had a regard for his own safety and looked and listened as he was crossing the track, he would have seen or heard the train, quickened his pace and reached a place of safety. If he had looked or listened before stepping upon the track, he would have heard or seen the train ; and, if mindful of his safety, he would have stopped and avoided the collision. If he had quickened his pace when his attention was called to the approaching train, he could have saved himself. He was unencumbered and capable of easily hastening or checking his movements ; and, if he had looked when he was in the middle of the track, he could have seen the engine in season to have stepped clear of danger. He could have seen the danger and avoided it at a time when it was too late for the defendant's servants to stop the train and avoid a collision. There was no time when the defendant's servants could have stopped the train and avoided the injury, in which the plaintiff could not have avoided being injured by a vigilant use of his eyes, ears and physi- cal strength. It was his duty to make a vigilant use of these fac- ulties up to the last moment when it was possible for him to do so. If he did not see or hear the train, if he did not heed the warning that was given him. it was because he was not mindful of his safety, when he was in a place that he knew was dangerous. It was because he was careless, and that carelessness continued until 1392 FRENCH v. GRAND TRUNK R. CO, he was injured. His negligence was not a precedent negligence He exposed himself to danger that was the beginning and not the end of his negligence, and his negligence was the proximate cause of the injury. The plaintiff relies upon the case of IVilley v. The Boston & Maine R. R. Co., 72 Vt. 120, 47 Atl. 398. It is true, that, by the rule there broadly and without qualification stated, the defendant would be liable, if, when it became apparent that the plaintiff was going upon the track, its servants did not do what they could to avoid injuring him, notwithstanding he was negligent; but this is not the true rule, or rather is not all there is to the rule. It is true,* that, when a traveler has reached a point where he can not help himself, can not extricate himself, and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury, and will not preclude a recovery ; but it is equally true,_ that, if a traveler, when he reaches the point of collision, is in a situation to help himself, and by a vigilant use of his eyes, ears and physical strength to extricate himself and avoid injury, his negligence at that point will prevent^ a recovery, notwithstanding the fact that the Ifammen could have stopped the train in season to have avoided jnjuring him. In such a case, the negligence of the plaintiff is con- current with the negligence of the defendant, and the negligence of each is operative at the time of the accident. When negligence is concu rrent and operative at the time of the collision and contributes to it, 'there can be no recovery. ■"— Judgment reversed, and cause remanded.^ ^Accord: Fraser v. South & North Alabama R. Co., 81 Ala. 185 (1886) ; Hot Springs Street R. Co. v. Johnson, 64 Ark. 420 (1897); Everett v. Los Angeles Consol. Elec. R. Co., 115 Cal. 105 (1896); Green v. Los Angeles Terminal Co., 143 Cal. 31 (1904) ; Dyerson v. Union Pac. R. Co., 74 Kans. 528 (1906); Robards v. Indianapolis St. R. Co., 32 Ind. App. 297 (1904), but see Indianapolis Trac. & Terminal Co. v. Kidd, 167 Ind. 402 (1906), and Indianapolis Trac. Co. V. Croly, post; Butler v. Rockland T. & C. St R Co., 99 Maine 149 (1904) ; Hammers v. Colo. etc. R. R., 128 La. 648 <1911) ; Drozvn v. Northern Ohio Trac. Co., 76 Ohio St. 234 (1907) ; Smith v. Norfolk & S. R. Co.. 114 N. Car. 728 (1894) : Upton v. 5. Carolina & G. E. R Co 128 N. Car. 173 (1901) ; Richmond Pass. etc. Co. v. Gordon, 102 Va. 498 (1904) • Vizacchero v. Rhode Island Co., 26 R. I. 392 (1904) ; Gilbert v. Erie R Co 97 Fed. 747 (1899) ; Northern Pac. R. Co. v. Jones, 144 Fed. 47 (1906) ; Southern R. Co. v. Bailey, 110 Va. 833 (1910). Many of these cases are complicated by the fact that the injury is due to a collision with a plain- tiff wrongfully walking on the defendants' right of way, if a railroid; or, if a street railway, walking, riding or driving on its tracks, where the pub- lic are held bound to make way for the cars and where, therefore, the en- gineers and motormen are held justified in assuming that the plaintiff will leave the place of peril and so is not bound to anticipate injury to him until he knows of his inability to do so or his fixed purpose to remain, Norfolk e-f Western R. Co. v. Deans Adm.. 107 Va. 505 (1907) ; Neal v. Carolina Cent. R. Co., 126 N. Car. 634 (1900). So, too, an engineer or motorman seeing a man in apparent possession of his faculties approaching the track is en- titled to assume that he will not attempt to cross if the car is in plain sight, Backus v. Norfolk & Atlantic Terminal Co.. 112 Va. 292 (1911). In Maine and Michigan a street railway is held liable to a person in- jured by being struck from behind while driving along the tracks or seated in a wagon standing near the tracks, Atwood v. Bangor, 0. & O. T. R. Co., ABBIE WARNER V. PEOPLES' ST. R. CO. 1393 ABBIE WARNER v. PEOPLES' ST. RAILWAY CO. Supreme Court of Pennsylvania, 1891. 141 Pa. 615. On July 2, i888, Abbie Warner, by her next friend, George Warner, brought trespass against the Peoples' Street Railway Com- pany of Luzerne county, incorporated by the act of March 23, 1865, P. L. (1866) 1 199. Issue. At the trial, on April 14, 1889, testimony was submitted to siiow that the defendant's road, upon which cars drawn by horses are used, runs between Scranton and Dunmore along one side of the public highway, the other side being generally used as a car- riage and foot-way; that on March 16, 1888, a severe snow storm occurred, and a drift had formed along the car track near Scranton, from two feet deep in some places, to two feet and a half in others, and extending a distance of about one-half a usual city block ; that on March 17th, the railway company had shoveled out a way along its track through the drift,' not more than wide enough for the pas- sage of its cars; that, in the afternoon of that day, the plaintiff, about eighteen years of age, passing from Scranton towards Dun- more, approached the cut through the drift, to enter it along the street car track as the better way for walking. The plaintiff testified that before she entered the cut she looked back and could see no car approaching ; but, on the part of the de- fendant, there was testimony that a car could have been seen for a distance of from a quarter to half a mile from the point from which the plaintiff said she had looked. The plaintiff testified, fur- ther, that shortly after she entered the cut she was overtaken by a car, driven very rapidly, when she stepped off the track agamst the bank of snow ; that the horses and front end of the car passed her, but she was struck by the rear end, thrown beneath the wheels, and injured. On the part of the defendant there was testimony that the car approached the cut, with bells on the horses, slowly up an ascending grade, until at or near the mouth of the cut where there was a switch, and that the driver was watching for a broken rail at the switch, and did not see the plaintiff till the horses reached the point where she had stepped aside. Mr. Justice Mitchell. The place of the accident was m the public road, where both parties had a right to be, and where each, therefore, was bound to be on the lookout for the other: Schmidt V. McGill, 120 Pa. 405. But the right of the defendant's cars was superior. ' Thev were confined to the track, and on that they had 91 Maine 399 (1898); Fickett v. Lewiston, A. & W. St. R. Co., 110 Maine -^llfmzy. Bedell v. Detroit, Y. & A. A. R. Co.. 131 Mich. 668 (1902); \lontgomcrv v. Lansing City Elec. R. Co., 103 Mich. 46 (1894) thouRh not to one injured while attempting to cross such tracks without first looking for the cars, Fritz v. Detroit Citizens St. R. Co., 105 ^lich. .50 (1895). even though the motorman saw that the plaintiff was negligently ignorant of tne peril into which he was running, Butler v. Rockland T. & C. Street R. Co., W Maine 149 (1904). 1394 TROW V. VERMONT CENTRAL R. CO. the right of way, to which the use by other parties, on foot or other- wise, was of necessity subordinate. The plaintiff, on the other hand, could use the whole road, and which part of it she took was merely a matter of convenience. That defendant in clearing its track from snow for the passage of its cars had made it also more convenient ■for plaintiff to walk on, could not be turned to its disadvantage, or enlarge the plaintiff's rights over that part of the public road. They were still subordinate to defendant's right of way: Jatho v. Railway Co., 4 Phila. 24; Thomas v. Railway Co., 132 Pa. 504; Adolph V. Railway Co., 76 N. Y. 530. These being the respective rights of the parties, the plaintiff came to a point on the road where the defendant's track ran through a snow-drift, for a distance estimated by plaintiff herself at half a block, where the snow had been removed from the track, leaving a passage just wide enough for the cars, with vertical walls of snow two or two and a half feet in height. It was plainly a place of dan- ger for a foot passenger, in case a car should reach it, and therefore a place for unusual caution and vigilance. But the rest of the road was, as plaintiff testified, ankle deep in snow and slush, and plain- tiff took the more dangerous, but more comfortable way. She says she looked just before she went into the cut, to see if there was a car behind her, and saw none. But on this, the pivotal point of the case, the uncontradicted evidence is overwhelmingly against her. The drift was at the top of a hill or rise, from which there was an unobstructed view in the direction from which the car was com- ing, fixed by the plaintiff's own witnesses at quarter to half a mile, and up this hill the car came at a moderate speed, with bells that could be heard for forty rods. Yet plaintiff herself says she got but a little way into the passage before the car came upon her. It is unquestionable that the car must have been plainly in sight at the time she entered this dangerous path, and if she looked at all it must have been a mere heedless glance, which all the evidence shows was not an adequate performance of the duty the situation required. The case belongs clearly to the class of Carroll v. Rail- road Co., 12 W. N. 348, and required the court to pronounce plain- tiff negligent as matter of law. The defendant's second point should have been affirmed. As this point is conclusive of the case, it is not necessary to discuss the others. Judgment reversed.^ TROW V. VERAIONT CENTRAL R. CO. Supreme Court of Vermont, 1852. 24 Vt. 487. IsHAM, J. The declaration in this case, in substance states, 'Ihat the defendants are the owners and occupiers of a certain Rail- ' See accord: Winter v. Federal Street, etc.. R. Co., 153 Pa. St. 26 (1893) ; Schnur v. Citizens' Trac. Co., 153 Pa. St. 31 (1893); compare Sieb v. Cen- tral Penna. Traction Co., 47 Pa. Sup. 228 (1911), and Tenner v. Wilkes- TROW Z'. VERMONT CENTRAL R. CO. 1395 road passing through "Falls Village," in the town of Northfield, and by the side of and across a public highway, leading through that village ; and that being such owners and occupiers, it was their duty to construct and maintain fences by the side of their road, suitable to prevent cattle and other animals from passing upon the railroad track ; and also, for the same purpose to erect and main- tain suitable cattle guards at all farm and road crossings. It is averred, that the defendants have neglected their duty in erecting fences by the side of their road, through that village, and in con- structing such cattle guards ; and that in consequence of this neglect, the plaintiff's horse was found upon the railroad track, and was so injured as to be rendered wholly worthless, by being run upon by an engine of the defendants, while in the use of their road. It is to be observed that the plaintiff has not in his declaration, nor by evidence on the trial, attempted to charge the defendants with any neglect or want of care in conducting and managing the engine, at the time the injury was committed. We are, therefore, to assume in this investigation, that the train was properly con- ducted, and that there was in this respect, the exercise of that rea- sonable care and prudence on the part of the defendants and their agents, which the law requires, at the time the injury was committed. The case on the part of the plaintiff, must therefore rest upon a duty, imposed by law upon the defendants, to erect and maintain such fences and cattle guards upon their road, as will prevent horses and other animals from passing thereon, and upon proof, that the injury was occasioned by a neglect on their part to perform that duty. That a duty of that character rests upon this corporation, must be considered as settled in this State, by a decision of this court in the case of Quimby v. Vt. Cent. R. R. Co., 23 Vt. 393. The important question presented in this case, arises upon the evidence introduced by the defendants, and the charge of the court thereon. The defendants introduced evidence, showing that the plaintiff's horse had been several times before in the highway, and with the knowledge and consent of the plaintiff. And the court were requested to charge the jury, "That if the plaintiff's horse, at the time of the injury, was in the highway with the knowledge and con- sent of the plaintiff, he could not recover." It is very evident, that if the defendants are chargeable with gross, or any other degree of neglect, from their want of proper care in making and constructing their fences and cattle guards, aris- ing from the consideration that they must have known and expected such casualties and injuries would arise, the plaintiff is chargeable at least with the same degree of neglect, in permitting his horse to run upon the highway, knowing of his exposure and liability to injuries of this character ; and it is as reasonable to charge the plain- tiff with the knowledge and expectation that such injuries would arise, as the defendants, and also to require of the plaintiff the ex- Barre & Wyoming Valley Traction Co., 202 Pa. St. 365 (1902), and see Hanse v. Transit Co., 3 Lehigh County L. J. 42 (1910). 1396 TROW V. VERMONT CENTRAL R. CO. ercise of as much care and prudence in keeping his property from such exposure to such injuries, as is required of the corporation, in guarding against their commission. From the facts, therefore, in the case, the plaintiff was as much in fault and as equally charge- able with neglect, as the defendants ; and in each case, their negli- gence was the remote cause of the injury, and equally contributed to that result. This leads our investigation to the question, whether an action can be sustained, when the negligence of the plaintiff and the de- fendant has mutually co-operated in producing the injury, for which their action is brought. On this question, the following rules will be found established by the authorities. When there has been mu- tual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained. In the use of the words "proximate cause," is meant negligence occurring at the time the injury happened. In such case no action can be sustained by either, for the reason, "that as there can be no appor- tionment of damages, there can be no recovery." So, where the negligence of the plaintiff is proximate, and that of the defendant remote, or consisting in some other matter than what occurred at the time of the injury, in such case no action can be sustained, for the reason that the immediate cause was the act of the plaintiff' himself. Under this rule falls that class of cases, where the in- jury arose from the want of ordinary or proper care on the part of the plaintiff, at the time of its commission. On the other hand, when the negligence of the defendants is proximate, and that of the plaintiff remote, the action can then well be sustained, although the plaintiff is not entirely without fault. This seems to be now settled in England and this country. Therefore, if there be negli- gence on the part of the plaintiff, yet if, at the time when the injury was committed, it might have been avoided by the defendant, in the exercise of reasonable care and prudence, an action will lie for the injury.^ So in this case, if the plaintiff were guilty of negligence, or even of positive wrong, in placing his horse in the road, the de- fendants were bound to the exercise of reasonable care and dili- gence in the use of their road and management of the engine and train, and if for want of that care the injury arose, they are liable. These principles have an important application to the case un- der consideration. The negligence, which caused the injury in this case, can not strictly be said to be proximate in either of the par- ties, but is remote, in both cases. It was remote on the part of the corporation ; for it is found in the case, that there was no negli- gence on their part in the management of the train, or engine, when the injury arose, but the neglect existed in not having previously made their fences and cattle guards. It was also remote on the part of the plaintiff, in permitting his horse to remain in the high- way, exposed to such injury, after it first came to his knowledge. * See the very valuable and instructive opinion of Carpenter, J., in Nashua Iron &■ Steel Co. v. Worcester & Nashua R. Co., 62 N. H. 159 (1882). CAVANAUGH V. BOSTON & MAINE RAILROAD. I397 The injury arose from the combined result of both causes. If either of the parties had done their duty, and conformed to the require- ments of the law, the injury would not have been sustained. In such case, no action can be sustained by either of the parties, no more than in the case, where their mutual negligence is the prox- imate cause of the injury; for the same reason exists in the one case, that exists in the other. From the nature of the case, there can be no apportionment of damages, and no rule can be laid hold of that settles what one shall pay more than the other. The rule is generally given in the authorities, that in cases of mutual neglect, where it is of the same character and degree, no action can be sus- tained.- \ (K/ 4^1f CAVANAUGH v. BOSTON & MAINE RAILROAD. Supreme Court of New Hampshire, 1911. 76 N. H. 68. Case, for negligence. Trial by jury and verdict for the plain- tiff. Transferred from the January term, 1910, of the superior court by Pike, J. Edith Bolis, the plaintiff's intestate, was killed by collision with the defendants' trains upon a highway grade crossing. At the time of her death she was about thirteen years old. She was driving alone in an open wagon, immediately following a carriage in which were three adults. She was driving slowly, would have seen the train if she had looked, and could have stopped within six feet of the crossing. The engineer testiHed that he saw the teams approach- ing the crossing when the train w^as about seventy-two rods and the forward carriage about eight rods distant therefrom ; that the teams did not slacken their speed as teams usually do ; that he sounded the whistle when he was forty or fifty rods from the cross- ing and continued to sound it until the team was struck ; that when 'See accord: Marriott v. Stanley, 1 AI. & G. 568 (1840). In Stiles v. Geesey, 71 Pa. 439 (1872), while the court stated broadly the Pennsylvania doctrine that the parties being mutually at fault there can be no recovery, neither party was, at any time after the peril could have been discovered, able to avert it, both having left their vehicles unattended. So where by rea- son of the defendant's antecedent negligence, the defendant, after discovering the peril to which the plaintiff has negligently exposed himself, is unable to avoid the accident, there can be no recoverv, Boston & Maine R. Co. v. Mc- Ihiffey, 79 Fed. 934 (1897); Trigg v. Water, etc., Co., 215 Mo. 521 (1908). trains running at such excessive speed that they could not be stopped after the plaintiff was discovered on the tracks; Oiven v. Hudson River R. Co., 2 Bosw. 374 (N. Y. 1858), defective brakes; contra. Baltimore Consolidated R. Co. v. Rifcowitc, 89 :\Id. 338 (1899), excessive speed; Neary v. Northern Pac. R. R., 37 Alont. 461 (1908) : ]Vcit::man v. Nassati Elec. R. Co., Z2> .-\pp. Div. 585 (N. Y. 1898); Labarge v. Fere Marquette, 134 Mich. 139 (1903), scnible. explaining Schindlcr v. Milwaukee, L. S. & IV. R. Co., 87 Mich. 400 (1891), both cases where cars without lookouts were shunted over crossings. If the defendant being present has the opportunity and duty to observe the plaintiff's helpless peril, he is liable though his failure to notice it was due to his attention being diverted by difficulties in his work caused by negli- gently bad equipment, Springctt v. Ball, 4 F. & F. 472 (1865). 1398 CAVANAUGH V. BOSTON & MAINE RAILROAD. he failed to attract the attention of the travelers, he applied the brakes for an emergency stop, this being done when the train was about forty rods from the crossing. The teams drove upon the crossing, the first one clearing the locomotive. There was evidence tending "to show that the whistle was not sounded nor the brakes applied until just before the crossing w^as reached, and that the train could have been brought to a full stop within 500 feet. The defendants' motion for a nonsuit, on the ground that there was no evidence of care on the part of the plaintiff's intestate at the time of the accident, was denied, subject to exception. The only question submitted to the jury was the liability of the defendants under the principles of the "last clear chance" doctrine. Parsons, C. J. The remaining exception is fto the denial of the motion for a nonsuit, which was asked upon the ground of the absence of any evidence of care on the part of the person injured. As the case is drawn, it may be inferred that the existence of evi- dence of the defendants' fault was conceded ; but if such concession was not intended, this branch of the question requires little con- sideration. From the testimony of the engineer it could be found that he knew the teams were approaching the crossing in ignorance of the coming train, at a time when he could have given warning or applied the brakes in season to prevent a collision ; and from all the evidence it m^ight be found he did not do either until too late. What the facts were, and whether the engineer's failure to act was negligence causing the injury, were questions for the jury. The motion was properly denied if the jury could be permitted to find from the evidence of the conduct of the plaintiff's intestate, a girl of thirteen years, that she exercised such care as could reasonably be required of such a person under all the circumstances of the case ; or if she did not, that the defendants' negligence, as distinguished from hers, was the sole proximate cause of the injury. The first question w^as not submitted to the jury, nor does the case disclose the form in which the second was presented to them. Upon the evidence m the case, it was for the jury to say whether the exercise by the trainmen of such care as the circumstances re- quired, after the engineer discovered the deceased, would have pre- vented the injury. If it would, the failure to exercise such care was the sole proximate cause of the injury, although the danger was created by the deceased's negligent inattention to the situation. This has been held in several cases upon facts identical with those presented here {State v. Railroad, 52 N. H. 528: Parkinson v. Rail- way, 71 N. H. 28; Little V. Railroad, 72 N. H. 61 ; S. C, 72 N. H. 502; Yeaton v. Railroad, 73 X. H. 285; Altman v. Raikvay, 75 N. H. 573), and was conceded in Stearns v. Railroad, 75 N. H. 40, 46. The danger may be created by the inattention of both parties, neither discovering the other until neither can avoid the resulting injury. In such cases the injury and the danger result from the same cause, the negligent inattention of both parties, and there can be no recovery. Gibson v. Railroad, 75 N. H. 342; Batcheldcr v. Railroad, y2 N. H. 528. CAVANAUGII v. BOSTON & MAINE RAILROAD. I399 If the trainmen see the traveler approaching the crossing, there -till may be no evidence upon which it can be found that they ought to have apprehended the traveler would go upon the crossing in advance of the train. Gahagan v. Railroad, 70 X. H. 441 ; Waldron \\ Railroad, yi N. H. 362. In these cases the plaintiffs fail, not be- cause of .their negligence, but because of the absence of negligence in the defendants. The traveler may be seen by the trainmen in the act of crossing, at a time when they can avoid the injury and the traveler can not. Stearns v. Railroad, 75 N. H. 40; Yeaton v. Railroad, 73 N. H. 285. The train may be discovered by the trav- eler at a time when he could avoid injury by care. In such case there can be no recovery, even if the railroad employees could have avoided the injury by like care. Shannon v. Railroad, 71 N. H. 286. The person injured may be incapable of taking care, and the rail- road liable for negligent failure to discover him if they ought to have anticipated his presence in that condition. Edgcrly v. Railroad, 67 N. H. 312.^ Such a case does not differ from that of property negligently permitted by the owner to be or to go in the way of the train. Laronde v. Railroad, 73 N. H. 247. The traveler may be discovered by the trainmen on the crossing, or approaching it as in this case, under circumstances indicating inattention _ to the train or the crossing. In this situation, the cases cited hold that if ordinary men, wnth the information the trainmen have, would anticipate a collision at the crossing and avoid it, the trainmen's negligent failure to do so is the responsible cause of the injury. The rule of most^general application deducible from the authorities is that the defendants are liable if, upon discovery of the danger, the plaintiff can not save himself, while the defend- ants upon their discovery of the danger could have avoided the in- jury. Altman v. Railway, 75 N. H. 573; Little v. Railroad, 72 N. H. 61; S. C. 72 X. H. 502; Parkinson v. Raihuay, 71 X. H. 28; State V. Railroad, 52 X. H, 523. As the negligence of the party injured in failing to observe the approach of the train continues until the very moment of the acci- dent, or at least until it is too late for either party to avoid the in- jury, and since he could have stopped in a place of safety after the time when the trainmen could have done anything to prevent the accident, it has been claimed that if his negligent failure to observe and stop is not subsequent to any negligence in the operation of the train, it is at least concurrent, and there can be no recovery. The conclusion that one conscious of danger of serious injury to a human being if he persists in the course which he is pursuing, which he can prevent by care, should be discharged from responsibility *So in South Carolina it is held that if the defendant knew of the plaintiff's peril or ought to have known of it in the exercise of care, his lack of subsequent care is the sole proximate cause of the resulting injury and therefore the plaintiff's antecedent negligence is not contributory, compare Bodie v. Charleston & IV. C. R. Co., 61 S. Car. 468 (1901). and Harbert v. Atlanta & C. A. L. R. Co., 78 S. Car. 537 (1907)— see also Righter v. Penr- svlvania R. Co., 42 N. J. L. 180 (1880)— with Jones v. Charleston & W. C. R. Co., 61 S. Car. 556 (1901) I400 CAVANAUGH V. BOSTON & MAINE RAILROAD. because of negligent ignorance of the danger in the person injured, is so fundamentally unjust and contrary to natural reason that few- cases are to be found that carry the logic of the rule of contribu- tory negligence to that extent. With substantial unanimity, recov- •ery is permitted in such cases, either upon the ground that the lack of attention in the party injured is not the proximate cause of the injury, or that the failure of the trainmen to act under such cir- cumstances so far partakes of the nature of a wanton or intentional wrong that the law as to contributory negligence has no applica- tion.- Murphy v, Deane, loi Mass. 455, 463; Union Pacific Ry. \. Cap pier, 66 Kans. 649, — 69 L. R. A. 516, note ; Dyerson v. Railroad, 74 Kans. 528 — 7 L. R. A. (N. S.) 132, note; i Thomp. Com. Xeg. s. 238; 2 lb., .y. 1598; Cool. Torts *674. It may be that neither ex- planation is strictly logical, and that the real foundation for the rule is merely its fundamental justice and reasonableness. The justice of the rule, that "the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the ^ The defendant's failure to take steps to avoid injuring the plaintiff who is in a position of helpless peril is often spoken of as "wanton," "wilful," or "reckless," and this whether the defendant knows of such peril or ought to have knowledge of it, Smith V. Norfolk & S. R. Co., 114 N. Car. 728 (1894) ; Cole v. Metropolitan St. Rv. Co., 121 Mo. App. 605 (1906) j Rawitzer v. St. Paul City R. Co., 93 Minn. 84 (1904). but see Anderson v. Minne- apolis, St. P. & S. S. M. R. Co., 103 :\Iinn. 224 (1908), and it is immaterial whether the defendant's subsequent fault is in taking no precautions or in taking insufficient steps to avert the accident, Cole v. Metropolitan R. Co., 121 Mo. App. 605 (1906); Ga. Pac. R. Co. v. Lee, 92 Ala. 262 (1890;, p. 270, where failure to "resort to all reasonable effort to avoid the accident" after knowledge of the peril, is held to imply "willingness to persist in a course of conduct which will naturally or probably result in disaster or an intent to per- petrate wrong;" and see Binniughain Railzt'ay & Electric Co. v. Pinckard, 124 Ala. 372 (1899), holding that "an honest employment of all available means to prevent the injury is essential" to rebut wantonness, "a partial erri- ployment of available means, evincing some degree of care is not enough." — p. 375. An engineer is, however, entitled to assume, until the contrary appear, that one on or near the track w'ill remove himself from his dangerous posi- tion and that he is using his senses to ascertain the necessity of so doing and while, if he is obviously unaware of the approach of the train, the en- gineer is bound to give warning signals to attract his attention, he is not bound to stop his train or reduce speed, unless such person is obviously in- capable of protecting himself, being a child, or drunk, or deaf, etc., until it plainly appear that he intends to remain in his place of peril, see Little Rock R. & Electric Co. v. Billings, 173 Fed. 903 (1909), 31 L. R. A. (N. S.) 1031, with exhaustive note. So, too, the fact that a person apparently in full possession of his faculties is approaching the track is not enough to indi- cate that he will attempt to cross, if the approaching train is within his view, Birmingham R. Co. v. Bowers, 110 Ala. 328 (1895) ; Denver & R. G. R. Co. V. Buffehr, 30 Colo. 27 (1902) : Roanoke R. & Elec. Co. v. Carroll, 112 Va. 598 (1911); Backus v. Norfolk & Atlantic Terminal R. Co., 112 Va. 292 (1911), with which compare Green v. Los Angeles Terminal R. Co., 143 Cal. 31 (1904), where the plaintiff was a pedestrian, with Harrington v. Los An- geles, 140 Cal. 514 (1903), where the plaintiff was a bicyclist racing toward the street railway crossing, Rawitzer v. St. Paul City R. Co., 93 ]\Iinn. 84 (1904), bicyclist reading paper, and Montgomery v. Lansing City Elec. R. Co., 103 Mich. 46 (1894), where the plaintiiif was a member of a band, play- ing while marching down the street in front of the defendant's car. CAVANAUGH V. BOSTON & MAINE RAILROAD. I4OI consequences of the injured party's negligence." (Grand Trimk Ky. V. Ives, 144 U. S. 408, 429), may be a sufficient foundation for it. Cases where at the time of the injury the plaintiff is not con- scious of the danger in season to avert it, either because he is drunk,"* ^Accord: McCJanahan v. Vickshnrg S. & P. R. Co., Ill La. 781 (1902) ; McGuire v. Vicksburg, S. & P. R. Co., 46 La. 1543 (1894) ; Murphy v. IVa- bash R. Co., 228 Mo. 56 (1910), especially pp. 81-83; Pickett v. Wilmington &■ IVeldon R. Co., 117 N. Car. 616 (1895), overruling Smith v. Norfolk & S. R. Co., 114 X. Car. 728 (1894), contra; Lloyd v. Albermarle etc. iR. Co., 118 N. Car. 1010 (1896) ; and see Little Rock etc. R. Co. v. Wilson, '90 Tenn. 271 (1891), all cases where the defendants' negligence was a fail- ure to observe the drunken plaintiff's helpless peril. See also, Ellsworth. J., in Isbcll V. New York & N. H. R. Co., 27 Conn. 393 (1858), p. 404, and Black- burn, J., in Radlcy v. London & N. W. R. Co., L. R. 10 Ex. 100 (1875), p. 103. "So in the case of a drunken man who might be lying on the highway, if any one carelessly driving on the road drove over him, he would have to pay dam- ages, because the drunken man does not lose his right of action by his neg- ligence." It is generally held that where the defendant, knowing of the plaintiff's helplessly drunken condition, fails to exercise care to avoid injuring him, the plaintiff may recover though his drunkenness prevents him from taking that care of himself which if sober he could have and which would have saved him. In such cases the defendants' fault generally takes one of three forms, (1) a failure to stop a train or other vehicle in time, St. Louis, L M. & S. R. Co. V. Wilkerson, 46 Ark. 513 (1885) ; Georgia Southern & F. R. Co. V. George, 92 Ga. 760 (1900) ; Krenzer v. Pittsburgh C. C. & St. L. R. Co., 151 Ind. 587 (1898) ; scmble (in both of which the defendant has received information which should have led it to expect the plaintift''s probable pres- ence on its tracks) ; Central R. Co. v. 'Glass, 60 Ga. 441 (1878) ; Cincinnati, L, St. L. & C. R. Co. V. Cooper, 120 Ind. 469 (1889) ; but see Vicacchcro v. Rhode Island Co., 26 R. I. 392 (1904) — (2) allowing the drunken passenger to ride in a place manifestly dangerous to one in his condition without warn- ing him of the danger or removing him from the place or ejecting him from the train, IV heeler v. Grand Trunk R. Co., 70 N. H. 607 (1901) ; but see Fisher v. IF. Va. & P. R. Co., 39 W. Va. 366 (1894), where it was held that warning the passenger of the danger of riding on the platform was a suffi- cient performance of their duty — (3) ejecting a helplessly drunken plaintiff from a train or premises at a place obviously dangerous to him because of his dangerous condition, though perhaps safe to one in full possession of his faculties, R. Co. v. Valvclly, 32 Ohio St. 345 (1877) ; Black v. New York N. H. & H. R. Co., 193 Mass. 448 (1907). See, however, Edgerlv v. Union St. R. Co., 67 N. H. 312 (1892) ; Kceshan v. Elgin A. & S. Trac. Co., 229 111. 533 (1907); Bagcard v. Consolidated Trac. Co., 64 N. J. L. 322 (1899). Warren v. Pittsburgh etc. Ry., 243 Pa. 15 (1914), holding the railroad com- pany not liable where a drunken passenger, expelled at a place reasonably safe for one of his condition, in his drunken wanderings stumbles into danger. The plaintiff" can not of course expect especial care unless his drunken- ness is known to the defendant, Strand v. W. M. R. Co., 67 Mich. 380 (1887). On the other hand there is authority to the effect that where the de- fendant does not know of the plaintiff's peril, its alleged negligence consisting in a failure to discover it, the plaintiff's drunkenness or his deliberate lying down to sleep in a place of danger is a bar to his recovery, on the ground that his drunkenness or other involuntary incapacity does not excuse, him from exercising that care for himself which he could and should have ex- ercised if sober, he having, except for drunkenness, an opportunity of dis- covering the approach of the defendant's vehicle equal to that which those in charge thereof had to discover his helpless danger. Little Rock R. & Flee. Co. V. Billings, 173 Fed. 903 (C. C. A. 8th Circ. 1909) : Little Rock & Ft. Smith R. Co. V. Pankhurst. 36 Ark. 371 (1880); South Western R. Co. v. Hankcrson, 61 Ga. 114 (1878) ; Houston & T. C. R. Co. v. Sympkins. 54 Tex. 615 HSSl) : Gulf, Colorado & S. F. R. Co. v. Matthcivs. 32 Tex. Civ. App. 137 (1003) : and see Vizacchcro v. Rhode Island Co., 26 R. I. 392 (1904); McKillop v. 1402 CAVANAUGH V. BOSTON & MAINE RAILROAD. asleep, absorbed in introspection, or otherwise inattentive, while the defendant has knowledge of the danger, simply fall into the class where the defendant is present and the plaintiff is absent. They are governed by Davies v. Mann, 10 M. & W. 546. The result in that case would have been the same if the plaintiff had been asleep by the wayside within shouting distance of his donkey. The plain- tiff's inability to control the situation is the test ; and it is imma- terial whether he is not in actual charge of the subject of injury because the absence of his body shows that he could not have been, or the fact be proved by showing that for other cause he, himselt, was not in control. Whether under such circumstances the defend- ant, upon the information he has, ought to have known of the plain- tiff's condition — that he was drunk, asleep, non- judging, or not ob- serving — bears on the defendant's negligence. If it can not be found he ought to have known the plaintiff's condition, he is not liable ; if he ought, he may be. "The law no more holds one responsible for an unavoidable, or justifies an unavoidable, injury to the person of one who care- lessly exposes himself to danger, than to his property similarly sit- uated in his absence." The law deals with the behavior of the par- ties in the situation in which it finds them, regardless of how that situation was produced. If the two parties approach the point of collision asleep or inattentive, and neither wakes up or becomes alive to the situation, the concurrent negligence of both prevents a re- covery from either ; but if one wakes up, or becomes aware of the danger existing from the fact that another asteep or inattentive is thoughtlessly in danger of injury by him, his fault, if he can but does not avert the injury from such danger, is alone the cause of the subsequent injury. There is no difference between sailing the seas with a rudderless ship and traversing the highway with a rud- derless mind. One knowing the situation, who can by care avert a collision and does not, is chargeable for the resulting loss, de- spite the uncontrolled character of the other's progress. Nashua etc. Co. V. Railroad, 62 N. H. 159. The injury in this case arose because the defendants with their train and the deceased with her team both attempted to occupy at the same time a portion of a public highway which each had the right to use, but which neither had the right to occupy when it was in use by the other. Each was bound to such acts as would con- stitute care under the circumstances, to prevent an attempt at such joint occupation. While due care would ordinarily require that the Dxduth St. R. Co., 53 Minn. 532 (1893) ; III. Cent. R. Co. v. Cragen, 71 111. 177 (1873); and Hoffman v. Peoria B. & C. Trac. Co., 164 111. App. 270 (1911), where, however, it did not appear that the defendant knew or should have known of the plaintiff's peril in time to have avoided injuring him. It is of course clear that where the defendant is not present or able to control the course of events, the plaintiff's drunkenness does not excuse his negligence in running into a danger created bv the defendant's negligence. Woods V. Tipton County Board of Comrs, 128 Ind. 289 (1890); Seymer V. Town of Lake. 66 Wis. 651 (1886). plaintiff while drunk drove into a de- fect in a highway. Berry v. Northeastern R. Co., 72 Ga. 137 (1883), plaintiff while drunk fell into a railway cutting. INDIANAPOLIS TRAC. & T. CO. V. CROLY. I4O3 wagon should wait and allow the train to go by, the failure to ex- ercise such care and the negligent occupation of the crossing by the wagon gave the train no right to attempt to pass at the same time. State v. Railroad, 52 N. H. 528, 556 ; Huntress v. Railroad, 66 N. H. 185 ; Gahagan v. Railroad, 70 N. H. 441 ; Little v. Railroad, 72 N. H. 502, 503; Continental Imp. Co. v. Stead, 95 U. S. 161. Whether the use of the crossing at the time by the traveler was careful or negligent, the train could not lawfully use it while it was in use as a part of the highway. Having notice that the traveler was about to use it at a time when they could have refrained from entering upon it, they are as much in the wrong and as fully the sole authors of the resulting injury as the traveler would be who attempted to pass with knowledge that it was in use by the train.* The situation is simply this: Both parties were proposing to exercise a common right which could not be enjoyed by both at the same time ; the defendants knew of the deceased's proposed use ; the deceased did not know the defendants' purpose. If the deceased was in fault for not knowing the defendants' desire then to pass over the crossing, the defendants were in fault for attempting to cross while the path was in use. As the deceased's negligent occu- pation of the crossing did not increase the defendants' right to use it, they can not recover of her for injury from their wrongful at- tempt, but must pay the damage done to her by their wrongful act. As her negligent act gave them no right to cross, it is immaterial in her suit for the injury whether ber act of which they had notice was negligent or careful. Exceptions overruled. Bingham, J., dissenting.^ INDIANAPOLIS TRACTION & TERMINAL CO. v. CROLY. Appellate Court of Indiana, 1911. 96 A^. E. 973. Appeal from the action of the Circuit Court of Morgan county in over- ruling a motion for a new trial after a verdict for the plaintiff and entering judgment thereon. The motion for a new trial was based inter alia upon the ground that the evidence was not sufficient to sustain the verdict of the jury and that the Judge had erred in his instruction to the jury. Lairy, J. In the application of (the doctrine of last clear chance) it must be borne in mind that a person who. by failure to use due care for his own safety, has exposed himself to danger, occupies a different position in the eyes of the law from one who is in the exercise of due care. To entitle hin * Compare Clay v. Wood, ante. ^Accord: Borders v. Metropolitan R. Co., 168 Mo. App. 172 (1912); De Lon v. Kokomo City St. R. Co., 22 Ind. App. 377 (1898) ; Bruggcman v. Ill Cent. R. Co.. 147 Iowa 187 (1910); Welsh v. Tri-City R. Co., 148 Iowa 200 (1910); Wilson v. Illinois Cent. R. Co., 150 Iowa H (1911); Goldrick V. Union R. Co., 20 R. I. 128 (1897) ; see Razvifcer v. St. Paul City R. Co., 93 IMinn. 84 (1904); contra, Everett v. Los Angeles R. Co., Robards v. Trac. Co., Drown v. R. Trac. Co., Butler v. St. R. Co., note to French v. R. Co., ante. 1404 INDIANAPOLIS TRAC. & T. CO. V. CROLY. to recover, notwithstanding his want of care, it must appear that prior to his injury the company owed him a special and particular duty, the violation of which can be treated as the sole proximate cause of his injury. There is a general duty resting upon a person in charge of a street car to use care to prevent injury to all persons and property with which it is likely to come in contact, and such care must be proportionate to the danger incident to its operation. This duty is a general one, and rests upon the mo- torman at all times and under all circumstances during the time he is oper- ating such car; but the duty to take particular precautions to prevent injury to a particular person, who, by want of due care on his part, has exposed himself to immediate threatened danger, or is about to do so. is a special duty which arises out of the exigencies of the situation. It is the failure to discharge this particular duty which gives room for the application of the doctrine of last clear chance, by which the company, in such case, is held liable to a person, who, by want of due care, has exposed himself or his property to the danger of receiving such injury. The particular situation of the parties prior to the injury must be such as to give rise to this special duty to the particular person injured some appreciable time before the injur\- occurs." From the very language in which the rule is generally expressed, it is apparent that, in order to hold a defendant liable by the application of the rule, it must appear from the evidence that such defendant's opportunity of preventing the injury was later in point of time than that of the plaintiff, and that such defendant failed to take advantage of the last clear chance. Where evidence in the case tends to show that t]?e situation of the parties just prior to the injury was such that the defendant, by the exercise of due care, could have prevented it, and that the plaintiff could not. then the rule becomes applicable. If, however, the undisputed evidence shows that the op- portunity of the plaintiff to avoid the injury was as late or later than that of the defendant, the rule can have no application, and the court should re- fuse to instruct upon the doctrine under consideration. The weight of authority, as well as the better reason, supports the prop- osition that, in cases where the negligence of the plaintiff is antecedent tc that of the defendant, and where such negligence of the plaintiff is deemec to have ceased prior to the injury, the plaintiff may recover by the application' of the doctrine of last clear chance ; and that it makes no difference, in sucn ^ "As was said in the case of EvansviUe & S. Traction Co. v. Spiegel, 94 N. E. 718 : "The first essential thing that the evidence must prove, or tend to prove, is that the decedent was in a situation of apparent and imminent danger at some appreciable time before the injury." The duty of exercising the particular precautions does not arise until the occasion which gives rise to such duty exists ; but, when the occasion presents itself, the special duty at once arises, and continues until the time of the injury. From the time the emergency arises until the injury occurs, the motorman must use every reasonable means to prevent the threatened injury. If. during the time, he fails to use proper means to avoid the injury-, the company will be held liable, or if his failure to avoid the injury during the time is due to the neg- ligent rate of speed at which the car is running at the time the emergencv arose, or to defective brakes or other negligence of the defendant, which prevented the motorman from avoiding the injury, when otherwise he could have done so, such negligence will be deemed to intervene, and will be held to be the sole proximate cause of the injury." INDIANAPOLIS TRAC. & T. CO. V. CROLY. I405 a case, whether the injury was caused by a negligent failure to discover plaintiff's danger, or by negligence in failing to use reasonable care to pre- vent the injury after discovering such danger. In cases in which it appears that the plaintiff, without observing his sur- roundings, negligently goes upon the track of the defendant or in such close proximity to it as to expose himself to the danger of injury from a passing car, and where there is nothing to prevent him from observing his danger and avoiding the injury at any time before it occurs, and where it also ap- pears that the motorman by reason of his negligence did not see the plain- tiff or his danger in time to avoid the injury * * =■■= the negligence of the plaintiff is concurrent and not antecedent, and the reason upon which the general rule is based can not apply. If the want of care on the part of the plaintiff consists in a failure to discover his own danger, and if the want of care on the part of the defendant consists of a like failure to observe the dangerous situation of the plaintiff, and if such want of due care on the part of both continues until the injury occurs, or becomes so imminent that nei- tner can prevent it, the plaintiff can not recover. Under such circumstances, the opportunity of the plaintiff lo observe the danger is equal to that of the defendant, and the duty to discover the danger and avoid the injury by the exercise of due care rests equally upon him and the defendant." If the op- portunity of the plaintiff to avoid the injury was as late as that of the de- fendant, how can it be said that the defendant had the last clear chance of avoiding it? The test is: What wrongful conduct occasioning the injury was in operation at the very moment it occurred or became inevitable? If, just before the climax, one party only *ad the power to prevent the injury, and he neglected to make use of it, the responsibility is his alone; but if each had the power to avoid such injury, and each failed to use it, then their neg- ligence is concurrent, and neither can recover. In this case it appears from the uncontradicted evidence that the plain- tiff walked across the street in plain view of the approaching street car which was moving at a rapid rate of speed, and stepped upon the track only three or four feet in front of such moving car. If she had used due care to ob- serve the approach of the car a moment before she stepped upon the track, she could have avoided the injury. Her negligence was concurrent and not antecedent, and therefore the doctrine of last clear chance, as applied to an- tecedent and subsequent negligence can have no application to this evidence. There is at least one class of cases in which it has been held that an in- jured person may recover by the application of the doctrine of last clear chance, notwithstanding his own neghgence continues up to the very time of the injury. Where the motorman actually saw the person injured and realized, or should have realized, ihe peril to which he was exposed, or was about to expose himself, in time to have prevented the injury, * * * the special duty toward the particular person arises as soon as the motorman sees him under such conditions as would indicate to a person of ordinary prudence that he was in danger of being injured by the car, or was about to expose himself to such injury.' It then becomes the special duty of the motorman to *See Consumer's Brewing Co. v. Dovle's Admx.. 102 Va. 399 (1904). and Bragg v. Cent. N. E. R. Co.. 152 App. Div. 444 (N. Y. 1912). *"This, however, does not mean, as seems to be contended, that defend- 1406 INDIANAPOLIS TRAC. & T. CO. V. CROLY. use everj' reasonable means to avoid injuring him; and, if he does not do so, the injured person may recover notwithstanding his want of care in failing to discover the approach of the car continued up to the very instant of the injury, and notwithstanding, also, that the plaintiff possessed the physical ability to have avoided the injury in case he had discovered his peril at any time before the accident happened. Cases of this kind frequently arise out of an injury to a person working, walking, riding, or driving upon the tracks of a street railway company, or out of an injury to a person who by reason of the abstracted condition of his mind, or by reason of his attention being diverted, or for some other reason, enters upon the track of such company, without observing his danger from approaching cars, and remains oblivious to such danger until he is struck and injured. In such a case the company may be properly held liable by an application of the doctrine of last clear chance, if there is evidence from which the jurj^ may properly find that the motorman actually knew of the perilous situation of the person subsequently injured in time to have avoided the injury by the exercise of proper care. Under such a state of facts, the motorman possessed the physical ability to avoid the injury before the accident, and so also has the injured party. In this respect their chances are equal ; but the motorman actually possesses the knowledge of the danger and appreciates the necessity of taking steps to avoid the injury, while the person injured has no actual knowledge of his danger, and does not appreciate the necessity of taking steps to avoid it. The fact that the motorman sees, or otherwise has actual knowledge of, the dangerous situation in which the negligence of the plaintiff' has placed him, and that he observes that the plaintiff is unconscious of his surround- ings and oblivious of his danger, gives to such motorman the last clear chance of preventing the injury, and, in case he fails to take advantage of it, the plaintiff may recover. Some courts base the right of the plaintiff to recover in such a case upon a different ground, and assign as a reason that the conduct of the motorman, in failing to use proper means to stop the car after seeing the situation of the plaintiff and observing that he is not likely to escape injury, is of such a reckless, wanton, and wilful character that it amounts to constructive wilfulness, and that contributory negligence is not a defense to an action based on an injury so caused. Krenzer v. Pittsburgh, etc., R. Co., 151 Ind. 587, 43 N. E. 649, 52 N. E. 220, 68 Am. St. Rep. 252; Smith V. Norfolk, etc., R. Co., 114 N. C. 728, 19 S. E. 863, 923, 25 L. R. A. 287. If there is some evidence fn the record tending to prove that the motor- man actually saw the plaintiff approaching the track and that her conduct and appearance at that time was such as to indicate that she did not observe the approach of the car and was oblivious of her danger, then the verdict can be sustained, even though her want of care in failing to see the car con- tinued up to the time of her injury, provided that ther? is also evidence tend- ing to prove that, after the motorman knew of her perilous situation, he had time to have avoided the injury by the exercise of due care. The evidence upon this question is conflicting. From a consideration of ant must know that the injury is inevitable if he fails to exercise care, and the decisions indicate no such requirement. It is enough that the circum- stances of which the defendant has knowledge are such as to convey to the mind of a reasonable man a question as to whether the other party will be able to escape the threatened injury. One in such a situation is in a dan- gerous position." INDIANAPOLIS TRAC. & T. CO. V. CROLY. I407 the evidence, we can not say that the jury could not have properly found that the motorman knew of the danger to which plaintiff was about to ex- pose herself in time to have prevented the injury. The evidence is sufficient to sustain the verdict. Instruction No. 2 is inaccurate and erroneous for more than one reason. The jury are told by this instruction that, if either the motorman or con- ductor saw plaintiff and her peril, or could have seen it by the exercise of due care, and failed to stop the car and take other precautions to prevent injuring her, then they should find for the plaintiff, even though she was guilty of negligence in not looking out. This instruction is defective because it fails to inform the jury that some appreciable space of time must have intervened after the motorman saw plaintiff's danger and before the injury occurred within which time some precaution could have been taken to prevent the injury.'' If, after discovering the peril to which the plaintiff was exposed, or was about to expose herself, the motorman could have prevented the injury by the exercise of proper care, it was his duty to do so ; but from this instruction the jury would be warranted in finding against the defendant by an application of the rules of last clear chance, in case it found that the motorman saw the dan- ger and peril of plaintiff and did not stop the car and prevent the injury, regardless of whether or not he had time to do so after discovering such peril and before the injury. The instruction is erroneous for the further reason that it authorized a recovery in this case by the application of the doctrine of last clear chance in the event that the jury found that the motorman, by the exercise of ordi- nary care, might have discovered the plaintiff's peril in time to have pre- vented the injury, although he had no actual knowledge of such danger. We can see no room for the application of the doctrine of last clear chance to a case where the failure on the part of the defendant to avoid the injury to plaintiff, after he had negligently exposed himself to danger, was due solely to the failure on the part of the motorman to observe plaintiff's danger, and where it also appears that the plaintiff's failure to avoid the in- jury resulted solely from a like want -of care on his part in failing to observe his own danger, and where his opportunity of avoiding the injury was as late or later than that of the defendant. To apply the doctrine of last clear chance to a case of this kind would be either to make it an exception to the rule that contributory negligence of the plaintiff bars a recovery in an action based on negligence, or to hold that the negligence of the defendant in such a case is more culpable than that of the plaintiff, and thus recognize the doc- trine of comparative negligence. In this case, the facts bearing upon this question are undisputed, and but one reasonable inference can be drawn, and that is that the plaintiff's want of care continued up to the time of her injury. Her right to recover in this case, therefore, depended upon the question as to whether or not the * Accord: Real Estate Trust & Ins. Co. v. Gxwn, 113 Va. ii7 (1912); Purccll V. Chicago & N. W. R. Co.. 117 Iowa 667 (1902) ; Stewart v. Port- land L. & P. Co., 58 Ore. 377 (1911), and see Rider v. Syracuse Rapid Transit R. Co., 171 N. Y. 139 (1902). 1408 WEITZMAN V. NASSAU ELEC. R. R. CO. motorman had actual knowledge of her danger in time to have avoided the injury. The judgment is reversed, with directions to grant a new trial.* WEITZMAN V. NASSAU ELECTRIC R. R. CO. Appellate Division of the Supreme Court of New York, 1898. 33 N. Y. App. Div. 585. Woodward, J. The child was not killed by the original contact, as far as appears from the evidence, but was picked up on the fender and was carried a distance of from 32 to 150 feet, when he rolled oft from the fender in front of the still advancing car, and was run over and killed, the car stopping ^Accord: Montgomery v. Lansing City Elec. R. Co., 103 Mich. 46 (1894) , Bedell V. Detroit Y. & A. A. R. Co., 131 Mich. 668 (1902), with which com- pare Tunison v. Weadock, 130 Mich. 141 (1902) ; Harrington v. Los Angeles R. Co., 140 Cal. 514 (1903), and see Texas & N. O. R. Co. v. McDonald, 99 Tex. 207 (1905). In the following cases it is held that the plaintiff may recover, notwith- standing his continuing ability down to the time of the accident to observe his peril and avoid the injury, by the exercise of due care and his continuing and concurring negligence in not doing so, though those in charge of the de- fendants' vehicle did not perceive his peril and realize his unconsciousness thereof, if by the exercise of the care, owL»g to him as a member of the public, they could have perceived and realized these facts, Birmingham L. & P. R. Co. V. Brantlv, 141 Ala. 614 (1904) ; Baltimore Trac. Co. v. Wallace, 77 Md. 435 (1893); Cons. R. Co. v. Rifcowit::, 89 Md. 338 (1899); Barrie v. St. Louis Transit Co., 102 Mo. App. 87 (1903) ; Lassiter v. Raleigh & G. R. Co., 133 N. Car. 244 (1903) ; Memphis St. R. Co. v. Havnes, 112 Tenn. 712 (1904) ; and see dicta in Southern R. Co. v. Bailey, 110 Va. 833 (1910). This rule, often called the "humanitarian doctrine," is said by Goode, J., in Hutchinson v. St. Louis & M. R. R. Co., 88 Mo. App. 376 (1901), to be "an exception to the law of contributory negligence" applied only "in contro- versies arising from injuries due to violent impacts and collisions" and "its real basis is to be sought in its suppos,ed necessity for public security." It is, however, applied where the property and not the person, of the plaintiff is injured, Borders V. Metropolitan R. 'Co., 168 ]Mo. App. 172 (1912), coupe struck while attempting to cross track ahead of an oncoming car. For a vig- orous attack on this rule, see the dissenting opinion of Woodson, J., in Murphy v. Wabash R. Co., 228 Mo. 56 (1910). But even in these jurisdictions, a plaintifif, who being fully aware of all the facts and as able to avoid the injury as the defendant, fails to look out for his own safety, Jl'atson V. Mound City St. R. Co., 133 Mo. 246 (1895), or deliberately takes a chance of crossing in front of a car which he knows is approaching, can not recover, McNab v. United Rys. & Elec. Co., 94 Md. 719 (1902) ; Mcidling v. United R\s. & Elec. Co., 97 Md. 73 (1903) ; Heying v. United Rys. & Elec. Co., 100 Md. 281 (1905). In some jurisdictions the same result is reached by holding that one who is walking, riding, or driving along street railway tracks is not bound to continually look behind him to see whether a car is approaching, being entitled to relv upon the motorman giving him warning of his approach, Fickett V. Lewiston A. & W. St. R. Co., 110 Maine 267 (1913); Adams v. Camden & S. R. Co., 69 N. J. L. 424 (1903) and cases cited; or that one about to cross or turn into such a track is guilty of no negligence if he sig- nals to the motorman his intention to cross at a public crossing while the car is far enough off to be stopped before striking him, Polacci V. Interurhau St. R. Co., 90 N. Y. S. 341 (1904). See also, Conrad v. Elizabeth, P. & C. i. R. Co., 70 N. J. L. 676 (1904). WEITZMAN t'. NASSAU KLliC. R. K. CO. I4O9 within its own length after the cliikl had fallen. The learned trial court charged the jury that "the accident, if it happened, and the damage, if it was occasioned, and the actionahle injury, if there is one, came at the time the railroad car struck his person, and no matter what happened afterwards, while that may have increased the injury, it has not increased the liahility of the company. * * * The whole charge is negligence, and if the defend- ant was negligent and the plaintiff, or the child, was free from negligence at the time the actual collision occurred, you are not to render a verdict in this case because of another negligence which you may find the motorman com- mitted after the actual collision. Their right of action was made out then, if it was made out at all. and there can be no case here of the picking up of the child upon the fender giving a right of action, or a right of action arising by reason of something that occurred afterwards ; that would be entirely illegal, and you must dismiss it from your minds." In this we are of opinion the trial court was in error. Conceding that the plaintiflf's intestate was siii juris, and that he was, as a matter of law, guilty of contributory negligence in stepping upon the track of the defendant at the same moment that the car arrived at the point of contact, the evidence in the case shows that the child was not killed by the original impact, but that he was picked up on the fender and carried a con- siderable distance, when he finally rolled off and was crushed under the wheels. To say that the defendant owed this child no duty; that it is respon- sible for no degree of negligence on the part of its servants after it had struck the child and failed to kill him, is to utterly mistake the policy and the rules of law. Whatever may have been tlie duties or obligations of the par- ties up to the moment that the child was picked up on the fender, there can be no question as to the obligation of the defendant after the feat had been accomplished, and a failure to discharge that obligation was negligence, to which the child, under the circumstances, could not contribute. It was the duty of the defendant, as we have already pointed out, to equip its cars in such a manner as to reduce to a minimum the chances of accident. The duty to equip the cars with fenders carries with it the duty to so operate them as to accomplish the end for which they are designed, and a human being, hav- ing been gathered into one of those fenders, no matter by what degree of negligence on his part, imposes upon the defendant the immediate duty of so operating the car as to afford him an opportunity to be taken from his dangerous position. Whatever the degree of negligence on the part of the individual in the original contact, that negligence culminated in the accident which landed him in the net of the fender. From that moment a new rela- tion existed between the parties, and any act or omission on the part of the defendant amounting to a lack of the care demanded by the situation and resulting in the death of plaintiff's intestate, is sufficient to charge the com- pany with negligence. It is not to be understood that the defendant becomes an insurer of every person who is caught in its fender, but simply that it is bound to use that same degree of care which a reasonably careful and pru- dent man would, or ought to use under the same circumstances, and this is always a question for the jury to pass upon. When the plaintiff's intestate reached a place upon the fender of defendant's car, the defendant had notice that the child was in a dangerous position, and if it had time, and with the exercise of reasonable care could have prevented the injury or death of the I4IO NEHRIXG v. CONNECTICUT CO. child, it was its duty to do so, and a failure on its part was negligence which entitled the plaintiff to recover, and the question of whether the defendant did or did not discharge this duty should have been submitted to the jury. The rule of law is that, "notwithstanding negligence upon the part of tlie person injured, he may recover if the railway company, after such negligence occurred, could, by the exercise of ordinary care, have discovered it in time to have avoided inflicting the injury." (7 Am. & Eng. Ency. of Law (2d ed.), 437.)^ George W. Wheeler, Jr., dissenting in Nehring v. Connecticut Co. Supreme Court of Errors of Connecticut, 1912. 86 Conn. 109. In each case of discovered peril caused by one's negligence the question is, did the defendant have the opportunity after such discovery, and was it his duty, to have avoided the accident? Whether the conduct of the motor- man was gross negligence, or ordinary negligence, the breach of duty was the same in kind, though differing in degree. If one walks upon a railroad track drunk, or in a reverie, or otherwise careless; or if one stands or lies on or so near the railway track as to be in danger and unconscious of it; or if one is in a position of peril through his own negligence from which he is unable to extricate himself, the person knowing or having the means and the duty to know of his presence owes him-the duty of avoiding injuring him. One who is negligently in a position of danger and unconscious of it is in ^Accord: Green v. Metropolitan R. Co., 42 N. Y. App. Div. 160 (1899). The New York cases are in great confusion, the general tendency being to- ward regarding the plaintifif's negligence as a bar, unless the defendant was guilty of some new act of negligence on the part of the defendant occurring after" the plaintiff's negligence had culminated in placing him in helpless peril. Rider v. Syracuse Rapid Transit R. Co., 171 X. Y. 139 (1902). But the de- cisions do not clearly show what is such a new act of negligence and whether the defendant's knowledge of the plaintiff's peril is essential or not. In Costello V. Third Ave. R. Co., 161 N. Y. 317 (1900), the motorman ac- celerated the speed of his car without looking ahead, when, if he had done so, he would have seen the plaintiff trying to cross ; however, this case might well have been decided in the plaintiff's favor on the ground that he could have crossed safely but for the acceleration which he had no reason to ex- pect and that therefore his attempt to cross was not negligent at all. Nor is it clear when a new situation arises which creates a new situation in which the defendant's inaction amounts to a new act of negligence, compare with the principal case Rider v. Syracuse Rapid Transit R. Co., 171 N. Y. 139 (1902), in which the court refused to regard the pushing of the plaintiff's wagon along the track for twenty feet after the collision, so overturning it and in- juring him, as a new act of negligence. As to whether knowledge of or duty to know, plaintifif's helpless peril makes sulasequent inaction a new act of negligence, compare Wasmer v. R. R. 80 N. Y. 212 (1880). McKcon v. The Steinway R. Co., 20 App. Div. 601 (N. Y. 1897), and TatarcUa v. A^. Y. & Queens County R. Co., 53 App. Div. 413 (N. Y. 1900) with Bortz v. Drv Dock' E. B. & B. R. Co.. 79 N. Y. 1046 (1903) and McDonald v. Metro. R. Co.. 87 N. Y. S. 699 (1904): see also, Csatlos v. Metro. St. R. Co.. 70 App. Div. 606 (N. Y. 1902). where the driver unsuccessfullv did all he could after the plaintiff's peril was dis- covered, but it was contended that had the brake been in good order he could have stopped, with which compare Green v. Erie R. Co., 11 Hun 333 (N. Y. 1877). NEHRIN'G V. COXXECTICUT CO. I4I I no diflferent situation than if he were incapable of extricating himself from his peril.* The opinion of the court classifies in five groups the several kinds of cases which have been thought to be within the "last clear chance" doctrine. In group one, the defendant, instead of doing his duty, does something which is a new act of negligence.' In group two, the peril is one from which the plaintiff can not, or can not reasonablJ^ extricate himself. Each group sup- ports a recovery. In group three, means of escape were open to the plaintiff down to the accident, but he remained unconscious of his peril. The opinion holds that if the plaintiff remains passive after exposing himself to peril and does nothing to materially change that condition, there may be a recovery.^ But in group four, assuming the same facts as in group three, the court holds that if the plaintiff after exposing himself to peril, instead of permitting the fixed condition to remain unchanged continues as an active agent in pro- ducing the condition under which the injurj^ was received down to its occur- rence, or until it was too late for the defendant to avoid the accident, there can be no recovery. In group five, the defendant knows, or ought to know, that the injured one is careless and is about to expose himself to danger of which he is unconscious, and after such knowledge he has the opportunity to avoid injury to him, and in such case the court holds there can be no recovery. We have attempted to show that the breach of duty of the defendant in each of these several groups is the same, and was a new act of neghgence of the defendant, viz.: the failure of the defendant to avoid injuring the plaintiff' after he knew of his peril when iie was either unconscious of it or incapable of extricating himself from it, and that this breach was the proxi- mate cause of the accident while the plaintiff's prior negligence was the re- mote cause. The distinction between active and passive negligence made in groups three and four, is new to our law, as well as to the law of negligence gen- erally prevailing in this country and in England. On analysis it does not *The plaintiff was struck by one of the defendants' cars as he stepped on its street railway tracks. The evidence showed that the plaintiff, without looking to see whether a car was approaching, started to cross the defend- ant=' street railway tracks at an oblique angle with his back half turned to the car, which ran'him down just as he stepped on the track. The street was clear of obstructions and his conduct and obvious unconsciousness of dan- ger were plainly observable by the motorman though there was no direct evidence that the motorman actuallv saw him. The majority of the court, G. W. Wheeler and R. Wheeler, jj., dissenting, held tlrat a verdict was rightlv directed for the defendant, since the plaintiff was "not merely pass- ivc'lv permitting an already fixed condition to remain unchanged" but when injured was "an actor on the scene" who "by his own volition" "brings into the situation which confronts the defendant changed conditions" and so his conduct is "a concurring efficient cause" and his negligence being contribu- tory, he could not recover unless the defendants' conduct is "open to the charge of wilfulness or wantonness." ^ .,s , , r , , ■Smith v. Conn. R. & Lighting Co., 80 Conn. 268 (1907). the defendants motorman said the plaintiff was about to cross the track, in negligent ob- livion that the car was onlv a short distance away, he tried to stop the car, but being inexperienced became confused and instead accelerated its speed, causing the collision in which the plaintiff was injured. 'As in Nichols v. Conn. Co., 83 Atl. 1022, 85 Conn. 710 (1912). I4I2 THOROGOOD V. BRYAN. seem logical. A is crossing a trolley track when hailed by a friend ; he stops upon the track to talk and negligently fails to use his senses to discover an approaching car. The motorman could have seen A in his place of peril, unconscious of his danger, and in time, with the exercise of reasonable care, to have avoided injuring him; instead he drives on his car and kills A. The opinion would hold A negligent in being upon the track without using his senses to keep out of the way of the oncoming car, but that as he remained passive and did nothing to change his situation of peril after the motorman had the opportunity to have avoided the accident, he may recover. But if A, instead of stopping on the track had gone on his way across or upon the track and had been struck, his negligence would have been active and con- tinued to the accident and would have been concurrent with that of the motorman. It must be considered that the breach of the motorman's duty would have been the same in each case : a failure to use reasonable care to avoid the accident. We see no reason why it should be available in the one case and not in the other. In neither case has the plaintiff's negligence changed. It never became passive or nonexistent. It remained to the time of the accident. It ceased, in a legal sense, to be a proximate cause of the accident. A was relieved of its consequences because the negligence of the motorman in failing to avoid the accident intervened and became its proxi- mate cause. If this distinction holds, and A be upon a trolley track intoxi- cated and asleep, his negligence is pas^e; if awake and walking his negli- gence is active.'' SECTION 4. Contributory Negligence of Persons Other Than the Plaintiff (Imputed Negligence). THOROGOOD v. BRYAN. Court of Common Pleas, 1849. 8 Manning, Granger &■ Scott, 115. CoLTMAN, J. The case of Thorogood v. Bryan seems distinctly to raise the question whether a passenger in an omnibus is to be considered so far identified with the owner, that negligence on the part of the owner or his servant is to be considered negligence of the passenger himself. As I under- stand the law upon this subject, it is this, — that a party who sustains an in- jury from the careless or negligent driving of -another, may maintain an ac- tion, unless he has himself been guilty of such negligence or want of due care as to have contributed or conduced to the injury. In the present case, the negligence that is relied on as an excuse, is, not the personal negligence of the party injured, but the negligence of the driver of the omnibus in which he was a passenger. But it appears to me, that, having trusted the ■'Compare Baltimore Trac. Co. v. Wallace, 77 Md. 435 (1893), holding that the defendants' duty is the same whether the plaintiff is upon or ap- proaching the tracks, if his unconsciousness of danger is or ought to have been observed. CAHILL V. CINCINNATI, KTC, R. CO. I4I3 party by selecting the particular convej^ance, the plaintiff has so far idcnti- tied himself with the owner and her servants, that, if any injury results from tlieir negligence, he, must be considered a party to it. In other words, the passenger is so far identified with the carriage in which he is travelling, that want of care on the part of the driver will be a defence of the driver of the carriage which directly caused the injury. InIaule, J. On the part of the plaintiff, it is suggested that a passenger in a public conveyance has no control over the driver. But I think that can not with propriety be said. He selects the conveyance. He enters into a contract with the owner, whom, by his servant the driver, he employs to drive him. H he is dissatisfied with the mode of conveyance, he is not nbliged to avail himself of it. According to the terms of his contract, he unquestionably has a remedy for any negligence on the part of the person with whom he contracts for the journey. But, as regards the present defend- ant, he is not altogether without fault. He chose his own conveyance, and must take the consequences of any de- fault of the driver whom he thought fit to trust. CAHILL V. CINCINNATI &c. RAILWAY CO. Court of Appeals of Kentucky, 1891. 92 Ky. 345. '7 Lewis, J. Another question argued by counsel is whether ncp:- ligence on the part of Henry Conrad^^ assuming it to be proved, can be imputed to plaintiff in bar of recovery. The general rule, as settled by this court, is that when an injury is occasioned by concurrent neghgence of two persons the fault of one is no excuse for the other, but both are liable to the party injured. {Dauvillc, &c.. Turnpike Road Co. v, Stciuart, 2 Met., 119; Louisville, &c., R. Co. w Case, 9 Bush, 720.) In both those cases the plaintiff was a passenger in a public conveyance.- But the conditions upon which ^ Henry Conrad owned and was driving the buggy in which the plain- tiff was being driven when injured. " The courts, both state and Federal, of the United States are practically unanimous in holding that the negligence of a common carrier will not pre- clude recovery by a passenger thereof against a third party whose negligence concurs with that of the carrier in causing the passenger's injury. Bunting V. Hoc/sett, 139 Pa. St. 363 (1890), overruling Lockhart y. Uchtenthalcr, 46 Pa. 151 (1863), which had imputed the contributory negligence of a common carrier to a passenger on grounds of public policy, (i. e., that the carrier's sole responsibility was an incentive to care and diligence), while refusing to impute the negligence of the driver of a private vehicle to an occupant thereof; Wahash, St. Louis & Pac. R. Co. v. Shacklct, 105 III. 364 (1883); Kutfner v. Lindcll R. Co., 29 I\Io. App. 502 (1888) : Bennett v. N. J. R. & T. Co., 36 N. J. L. 161 (1873) ; Chapman v. lYezv Haven R. Co., 19 N. Y. 341 (1859) ; Transfer Co. v. A>//v, 36 Ohio St. 86 (1880) : Carlisle v. Brisbane, 113 Pa. St. 344 (1886) ; Cuddy v. Horn, 46 Mich. 596 (1881), and see Pride.aux v. Mineral Point, 43 Wis. 513 (1878). Xor will the contributory negli.gence of the driver of a hired vehicle. Avhether hired at a public stand, a livery stable or bv any other special contract, be imouted to the hirer. Little v. Hackett, 116 U. S. 366 (1886) ; Randolph v. Riordon, 155 Mass. 331 (1891) : New York, L. E. ^ W . R. Co. v. Stcuibrcnner, A7 N. J. L. 161 (1885) : and see the very exhaustive note to Schtillz v. Old Colony St. R. Co., 8 L. R. A. I414 CAHILL V. CINCINNATI, ETC., R. CO. contributory negligence of one of such persons can be Imputed to the plaintiff in an action against the other, as held in the latter case, are that he must have then been the agent or servant or subject to the government or control of the plaintiff. It does not therefore seem to make any difference in such case whether the party injured was at the time a passenger in a public conveyance paying his fare, or riding in a private vehicle free of charge at invitation of the owner and driver ; but the true test is whether his relation to the person whose negligence is sought to be imputed to him was such as would have rendered him liable in case another than himself had been injured by such concurrent negligence. For to defeat an ac- tion of a party injured by showing contributory negligence of an- other, or to render him liable for that other person's negligence, not being himself in fault, either the maxim qui facit per alinm, facit per se must apply — that is, the relation of master and servant' or principal and agent must exist — or else that they were engaged in a joint enterprise whereby mutual responsibility for each other's acts existed, which was clearly not the case. Robinson v. A^^zf York, &c., R. Co., 66 N. Y. 11, was the case, like this in every respect, of a female who, while riding in a buggy at the invitation of a young man, the owner and driver, was in- jured by collision with a railroad train, and in discussing the same question we are now considering^ Church, C. J-, said : "I am unable to find any legal principle upon which to impute to the plaintiff the negligence of the driver. * * * The acceptance of an invita- tion to ride creates no more responsibility for the acts 6f the driver than the riding in a stage-coach, or even a train of cars, providing there was no negligence on account of the character or condition of the driver, or of the safety of the vehicle, or otherwise. It is no excuse for the negligence of the defendant that another person's negligence contributed to the injury, for whose acts the plaintiff' was not responsible." It is true a passenger in a public as well as a private vehicle may, by his own negligence, contribute to its collision with another vehicle whereby he is injured. But the question before us is not whether the plaintiff' in this case was negligent, but whether the assumed negligence of the owner and driver of the buggy she was in can be imputed to her. The distinction is recognized even in the case cited, and, although it is there said a person carried in a pri- vate conveyance is responsible for his own negligence, yet it is dis- tinctly held that negligence of the driver caiT not be imputed to him. any more than that of a common carrier can be to his passenger. It seems to us there is no authority or sound reason for im- puting to the plaintiff' in this case the negligence of Henry Conrad, (X. S.) 597, where the American authorities up to 1906 on the whole subject of the "imputed negligence of driver to pabsenger" are collected. ^ In Lundergan v. New York Central & Hudson River R. Co., 203 ^lass. 460 (1909). Justice Sheldon gave as one reason for holding that the plain- tiff is barred by the negligence of the driver, the fact that the relation of rnaster and servant existed between them, though in fact the injured plain- tiff was the servant and the negligent driver was the master. CAHILL v. CINCINNATI, ETC., R. CO. I415 if he was guilty of any, in the absence of evidence that she voUm- tarily accepted'his invitation knowing him to be incompetent and unreHable, or that she instead of him did actually control and direct the movement of the buggy.* \\'herefore the judgment is reversed for a new trial consistent with this opinion. \4ccord: Pyle v, Clark, 75 Fed. 644 (1896) ; Elyton Land Co. v. Mingca, 89 Ala 521 (1889) ; Hot Springs St. R. Co. v. Hildreth, 72 Ark. 572 (1904) ; Colorado & So. R. Co. v. Thomas, 22, Colo. 517 (1905) ; Roach v. Western & III R. Co., 93 Ga. 785 (1894) ; Consolidated Ice Machine Co. v. Keif or, 134 ill 492 (1890); Christv v. Elliott, 216 111. 31 (1905); Knightstown v. Mus- grove 116 Ind. 121 (1888) ; Xeshit v. Garner, 75 Iowa 314 (1888) ; Leaven- ivorthw Hatch, 57 Kans. 57 (1896) ; State of Maine v. Boston & M. R. R. Co., 80 Maine 430 (1888) ; Shulta v. Old Colony St. R. Co., 193 Mass. 309 (1906) ; KopUtz V. St. Paul, 86 Minn. Z7Z (1902) ; Marsh v. Kansas City So. R. Co., 104 Mo App. 577 (1904) ; No\es v. Boscazuen, 64 N. H. 361 (1887) ; Noonan V. Consolidated Trac. R. Co., 64 N. J. L. 579 (1900) ; Masterson v. New York Central & H. R. R. Co., 84 N. Y. 247 (1881) ; Brickell v. New York C. & H R. R. Co., 120 N. Y. 290 (1890) ; Street R. Co. v. Eadie, 43 Ohio St. 91 ( 1885) ; Carlisle v. Brisbane, 113 Pa. St. 544 (1886) ; Carr v. East on, 142 Pa. St 139 (1891); U'ilson v. Nezu York, N. H. & H. R. Co., 18 R. I. 589 (1894) ; Galveston, H. & San Antonio R. Co. v. Kutac, 72 Tex. 643 (1889). In Michis?an an adult who voluntarily enters a private vehicle is so far identified with the driver as to be barred by his contributory negligence. Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274 (1872) ; Mullen v. City of Owosso, 100 Mich. 103 (1894), though an infant not sut juris is not, Hempel v. Detroit, G. R. & W. R. Co., 138 Mich. 1 (1904) ; nor is a passen- ger identified with those in charge of the vehicle of his common earner. In Wisconsin and Alontana, a guest in a private conveyance is so identified with driver, Prideaux v. Mineral Point, 43 Wis. 513 (1878) ; Lightfoot v. Winne- bago Trac. Co., 123 Wis. 479 (1905); Whittaker v. Helena, 14 Mont. 124 (1894), though there are intimations in Prideaux v. Mineral Point which is quoted and followed in Whittaker v. Helena, that no such identification exists between a passenger and the servants and agents of a common carrier. _ It is generallv held that the guest is no more barred by the contributory negligence of a driver who is the husband, son or other relative of such guest, than if he were not so related, Louisville, N. A. & C. R. Co. v. Creek. 130 Ind. 139 (1891); Reading v. Telfer, 57 Kans. 578 (1897); Whitman v. Fisher, 98 Maine 575 (1904) ; Teal v. St. Paul City R. Co., 96 Minn. 379 (1905) ; Mnnger v. Sedalia, 66 Mo. App. 629 (1896) ; Hajsck v. Chicago, B. & Q. R Co., 68 Nebr. 539 (1903) ; Lloag v. New York C. & H. R. R. Co.. Ill N. Y. 199 (1888) : Davis v. Gitarnicri, 45 Ohio St. 470 (1887) ; Buckler \: Newman. 116 111. App. 546 (1904). woman driving with minor son. see JVatson V. Wabash, St. L. & Pac. R. R.. 66 Iowa 164 (1885) ; Philadelphia, W. &. B. R. Co. v. Hocjeland. 66 Md. 149 (1886) ; Cons. Trac. Co. v. Bchr. 59 N. J. L. 477 (1896). and Duval v. Atlantic Coast Line, 134 N. Car. 331 (1904). daughters driven bv' their fathers; Philadelphia, W. & B. R. Co. v. Hogeland. 66 Md. 149 (1886) ; Petersen v. St. Louis Transit Co., 199 Mo. 331 (1906). uncle and nephew of sixteen. As to the efiFect of negligence of a father driving his minor child in those jurisdictions which hold that the child, being incapable of caring for itself, is barred by the negligence of those in charge of it. compare Hcnnessev v. Brooklyn City R. Co., 6 (N. Y.) App. Div. 206 (1896) with Delaware. L. & W. R. Co. v. Devore, 114 I'ed. 155 (52 C. C. A. 77 1902), and see Peabodv v. Haverhill. G. &■ D. St. R. Co., 200 Mass. 277 (1908). On the other hand a husband's negligence is held in some cases to defeat the wife's action against a third party whose negligence concurs with it to cause her iniuries. In ^^cFaddjiijuJanfaAn^^ 464 (1891) and Penns\lvmrirnCT^.