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PAGE Of the Limitation of Actions Ex Delicto . .51 CHAPTER V. Of the Meastjee of Damages rx Actions of Toet . 55 CHAPTER VI. Of Injunctions to Restrain the Contixcance of Torts Tl PAET II. OF RULES RELATING TO PARTICULAR TORTS. CHAPTER I. Of Defamation 83 CHAl'TER II. Of ^Ialicioits Prosecution 99 CONTENTS. Ml J^T. II. <^i' Rules uel-vtixg to Particulab Toms—couid. CILVPTEIl III. )>A(iE Of False liirnisoxMENT a.\u ^L^LICIous Aiikest . lou CLLVPTEU 1\. Of Assault and Battery 118 CILVITER V. Of bodily Ixjuries caused by Nuis-vxces . . lii.j ( 'IIArTER VI. Of Negligen'ce \'->'j CHAPTER Vn. Of Adultery axd Seductiox 149 CHAPTER Vm. Of Trespass to L.vxd xyu Dispossessiox . . lOii CILVl'TER IX. Of Private Xuisa^'ces affectlxg Re.vlty . . IT.J Viii CONTEXTS. Tt. II. Of Rules rel:\.tixg to Paeticulah Torts— co7itd. CHAPTER X. PAGE Of Frai-d axd Deceit 201 CILIPTER XI. Of Tkesfass to ^vxd Co>'A'ersiox of Chattels . 209 CHAPTER XII. Of Ixfedcgemexts of Trade !NL\nKS a^'d Patext A>-D CorYiaoiiT 222 TAliLE OF CASES CITED. PAOK Abbot V. McFic .. 140 Afton V. Bluudoll . . .. 192 Aldrttl r. Constable .. 210 ^\.llcu r. Ilowartl . . .. 38 c. New Gas Conipau y .. 43 All.sopp r. AUsopp . . .. yo Altou V. Midland Railwaij • Company . . 25 .Vmcrican Clotli Company r. American Leather Cloth Company 223 .•Vucastor c. llilliuj; , , .. 61 Audersou r. liiidcliffo .. 1G4 .Vuffus c. Dalton .. 186 ^Vixcdeckuc r. Kclk .. 188 Armorj r. Dclainuic 69, 214 Ashby c. White . . 0, 8 Asher /•. ■\\niitlook . . 104, 167, 168 Asliwix r. Stauwix . . .. 47 Atkinson r. Gateshead W ater Company . . 20 Attoi-uey-Geueral r. May jr, lie. of Birmiugham .. 77 Ayualey v. Glover . . ■73, 187, 18S s. Back V. Stacy Backhouse v. Bononii . . . . . . . . 10 — Bailey f. Manchester, Sheffield and Lincoln Railway Co. f. Walford Baldwin c. Casella . . Balmc r. Hutton Bamford r. Tumley Barely r. ^Mathews and Wife Barnes v. Ward Barrj' v. Croskey Bartonshill Coal Company e-. Reid Barwick c. Enjjrlish Joint Stock Bank . . Baseley v. Clarksuu a 5 186 o.i, 181 29, 3.> .. 203 .. 142 .. 21.-! .. 177 .. 102 131 . 26 30, 44 . 204 14 125 TABLE OF CASES CITED. Battishill r. Reid Baxter r. Taylor Baylifis v. Fisher r. Lawrence Beard r. Eperton Beaver c. Mayor, &c. of Manchester Beckford v. Hood Beckwith r. Philby r. Shorcdike Bcddiufrfield v. Onslow Bwlfonl r. M'Kowl Bell V. Stone r. Walker Benjamin v. Storr . . Bennett r. Alcott Binks V. S. Y. and R. D. R. Co. . . Bird V. Jones r. Randall Bishop of London's case . . Bishop r. Trustees of Bedford Charity Blake r. Lanyon Bloodworth r. Gray Blyth r. Topham Blythe r. Binnin<,'ham Water Company Bojrue r. Houlston . . Bolingbroke v. Swindon Local Board Bolch V. Smith Bonomi r. Backhouse Booth I'. Mister Boidton r. Watt Bower r. Cook Boyle r. Tamlin Bradley r. Copley . . Bradshawr. Lancashire and Torkshii-e Railway Company Braham f. Bustard Bramley v. Chesterton Brassington r. Lewellyn Brewer r. Dew r. Sparrow Britten t'. South Western Railway Company Broad r. Ham Brook V. Ashton f. CdjK-land Brown v. Boorman V. Dawson f. Robins Bulleu t'. Langdon , Burgess v. Burgess. V. Gray V. Great Western Railway Company PAGE . 177 . 200 . 67 . 87 . 231 . 162 . 20 . 106 . 11 . 200 3, 157 . 84 . 240 9 . 154 . 127 . 105 . 153 . 211 . 125 . 152 . 91 . 131 . 136 . 236 . 42 . 132 . 181 . 41 . 234 . 166 . 159 . 213 , 146 . 226 . 63 . 169 . 67 . 220 . 57 . 102 . 231 . 143 . 24 . 164 'A, 185 198 227 "38 134 TMtLE OF CASES CITKI). XI PAOB BiUToiijrhs «'• Bayuc 209 Bury c. Bcdfoixl -i-n ButcluT r. Butthor ICJ Butt r. Iinpcriiil Gas Compauy . . 7 Bynic f. Boadlo 110 c. Calcraft v. Harborougli Calder <•. Halkett . . Campbell c. Scott . . Cau I'. Lambert Cauhain v. Fi.sk Carlyou r. Laveiiug Carpeuter r. Smith . . Carr v. Clark r. Hood Carslake r. ITaplcdium Car}' r. Kearslev Cave r. Mountain . . Chandler v. llobinsou Cliapman r. Pickersj^l Chaseniore r. Richards Chester v. Holyhead Railway Compauy Chincry r. Viall Christie r. Cowell . . Christn])herson c. Bare Cliurchill r. Signers Cibber v. Slopcr City CommLssioncrs of Sewers r. Glas: Clark V. Freeniau CLirke i-. Clark Clay r. Roberts Clements r. Chivis Cliff f. Midhmd Railway Company Cobbctt V. Gray Cockroft c. Smith Cocks «'. Cliandler Coprgs V. Bernard Collins r. Evans V. Miey . . . 109 Dunn r. Biniiin^rhani Canal Company . . 184 Durrell c. I'ritchard . 78 DjTicr v. Leach . 48 E. Eagrer v. Grimwood Eardlcy r. Earl Granville . . Eaton V. Johns Edgehiiry r. Stephens Edwards r. Clay «'. Crock . . Elliott V. Kemp f. North Eastern Railway Company Elliottson c. Fieldham Ellis V. Loftns Iron Company r. Sheffield Gas Company . . r. Great Western Railway Company Elsam r. Fawcett . . Embrcy r. Owen . . Evans v. Eilmonds . . r. Evans r. "Walton . . Every v. Smith 158 160 85 231 r)3 151 214 77 180 210 39 139 151 191 202 150 153 165 Faldo V. Ridpo .. 161 Falvcy v. Stanford . . . . 57 Farley r. Danks . . 99 Fcltham v. En^'land .. 45 Fcnn V. Bittleston . . .. 213 Fenwick r. East London Railway Company . . . 72 Fetter r. Beale . . 64 Fitzjohn c. MacKinder . 100, 101 Fletcher r. Rvlands .. 160 Flijrht V. Thomas .. 180 Fordliam v. L., B. ic S. C. R. Co. .. 138 XIV TABLE OF CASES CITED. Foster V. Foster Fouldes f. Willoujrhby Foxilger r. Newcoinbe Fox f. Broderick . . Frauce r. Gaudet . . Francis r. Cockerell Franklin r. South Eastern Frcwcn r. Phillips . . Frj-cr r. Kinnerslcy Railway Company 60, 145, PAGE 151 209 91 86 58 42 146 189 97 G. Liinpns Galway r. Marshall Gardiner v. Slade . . Gathercole ;•. Miall. . Gayford c. Moffat . . Gee V. Pritchard General Omnibus Company George and Richard, The . . Gibbs t: Cole Gilpin r. Fowler Gladman r. Jolmstou Glave V. Harding . . Glover v. South Western Railway Company GofF V. Great Northern Railway Company Goldsmid v. Tunbridge AVells Company. Goodtitle r. Alder . . Gordon r. Cheltenham Railway Company Gorris r. Scott Gott r. Gandy Gourley r. PUmsoll. . Gi-ainger r. Hill Gray r. Gray Great Western Railway Company r. Bennett r. Fawcett Greatrex «■. Ha\"\vard Green r. Brittoii Grcenslade v. Halliday Grecnsland r. Chaplin Gregoiy v. Pii)fr V. Willi.'sms Greville r. Chapman Griffin c. Coleman . . Griffiths v. Gidlow . . r. Teetjen Gwinnell v. Earner . . 106, 10 92 97 98 194 75 31 19 •233 97 143 189 60 35 (0, 77 164 79 21 129 84 105 84 184 132 194 88 200 140 2, 159 61 85 •, 122 49 155 130 •lAlil.r, OF CASES CITKD. XV H. Haddcsdon r. (Jn'ssil Hadley v. Baxciulale c. Taylor . . Hnll «•. J(jhuMon Hambletou r. Vere . . Hamcr r. Kuowlos . . Hatiiiiiai'k c. Wliitc iraiamuucl c. St. I'aucra.s Vestry Haukiusun r. BilJiy Hannam r. Jftx-kctt Hardcastlc r. S. W. anil Y. D. Railway Corapauy Hanliiig- r. Kiug Hardy c. Rylo Harris r. Butkr Harrison r. Bush V. Taylor . . Hart r. Humpack . . Harwood i\ Great Northei-u Railway Comijauy Hedfres r. Taprp Henderson c. Broomhead r. Hanisuu Hesley c. Chapman Heydon and Smith's case Hide r. Thomborough Hig'gins c. Andrews Hilberr>- v. Hatton . . Hill V. Evans Hinton r. Heather . . Hisoox r. Greenwood Hodffsou f. Scarlett Hoprj^ f. Ward Hole v. Barlow Holkcr r. Porrit Holmes f. Goring . . r. Mather . . r. Worthingtou Holt r. Scholefield . . Hooper f. Gniscott . . Hopper r. Reeve Houlden r. Smith . . Hoiiusel r. Smith . . Huckle f. Money . . Hughes /•. McFic . . Hull c. Pickersgill . . Humphreys r. Brogden Himtley r. Sim]>sou Hiurdman ;■. North Eastern Railway Company rA(iK .. 210 70 8 43 57 1S4 146 11 .S5 101 127 124 54 154 8G, 95 •224, 226 .. 95 230 155 "j( , 109 95 100 68 186 217 211 230 100 212 96 107 179 193 195 136 49 91 H7 120 HI r'7 1 — 1 55 140 36 1.S0 , 181 100 14 XTl TABLE OF CASES CITED. laEson V. Stewart . . Inohbald v. Eobinson r. Bariington Indemiaur r. Dames Irwin f. Brandwood Iveson r. Moore PAGE .. 84 .. 176 .. 176 16, 133 .. 91 Jacobs r. Senard Jamond v. Knight . . Job v. Potton Joel V. Monnson John r. Bacon Johnson v. Emerson r. Stear Johnstone v. Sutton Jones r. Boyce V. Chapman . . V. Heme V. Stevens Jupe r. Pratt 165, 216 189 165 41 136 99 69 d, 101 58 163 90 65 234 99, K Keats V. Cadogan Keene v. Ee^-nolds Kelly r. Sherlock r. Tiuling Kemp r. Ne\'ine Kendillou r. Maltby Kidgell r. iloore King r. Rose Kirk V. Gregory Knight r. Gcx Knott f. Morgan .. 129 . . 161 56, 65 95, 98 109 192 200 211 210 38 227 Lacy f. Rhys Lafoiid r. Ruddock . . Lamine r. Dorrell . . LancHKliire "Waggon Company v. Fitzhugh Lancaster Canal Company v. Pamaby . . Laiigridge r. Levy . . Latham r. Latliam and Gcthin . . .. 241 . . 54 .. 220 .. 215 131, 132 26, 201, 202 .. 150 TAHLE OF CASES CITED. XV 11 Lniiffhor c. Poiutcr. . Ltiu^'hton c. Hislioj) of Stnldr Lawless c. Aii>rlo-Eg-}i)tiiiu Cuttou Company Lawrfucc r. Oboe . . Lay r. M. Railway Company Leake c. Lovetlay . . Leary v. I'atrick Leather Cloth Company c. Americ;i Lee V. Riley . . Lepjf c. Tucker Lewis r. Levy r. Marling . . Ley r. Peter Limpus r. General Omnibus Company Louj^meicl r. Holiday Lovell c. Howell Low c. "Wood Lnmley r. (lay Lynch v. Iviiij,'ht 1". Nurdin Lyons e. Martin an Leather Cloth Company 87, 88 •AOK 37 95 95 159 141 214 114 227 159 281 96 231 170 31 26 44 23G 152 87 140 42 M. Mackay r. Commercial Bank of New Bioiuswick Mackey f. Ford Macpherson r. Daniels MajLTor r. Chadwick Mauby V. "Witt Manjjran r. Attertou Manley r. Field Marsh v. Keating . . r. Loader . . Marshall v. York, i:c. Railway Company Martin v. Great Northern Railway Company f . Strachau . . Martindale v. Smitli Mason V. Ciesar ■ V. "Williams . . Masper and wife i\ Brown Maxwell r. Hogg . . May I'. Burdett MaVall r. Ili^'by . . Mayliow v. Herrieks M 'Andrew r. Bassett M'Gregor r. Thwaites M-Leod r. AVliateley M'Manus c. Cricket Mears v. Loudon and South Western Railway Company . 205 . 96 S4, 92 . 194 . 97 . 141 . 154 . 220 . 106 . 26 . 134 . 1G7 . 214 . 199 . 205 124 237 141 240 210 220 1)4, 96 97 42 21.> XVlll TABLE OF CASES CITED. Mellors r. Shaw Merest r. Harvey . . Metropolitan Assurauce Company v. Peteh Saloon Omnibus Comijauy r. HaAV Railway Company Miller r. Hope and Shaw . . Milligan r. Wedge . . Milling-ton v. Fox . . Mitchell r. Crasweller Moore v. Robinson Morgan r. Lingen . . r. Yale of Neath Compa r. Hughes Morris r. Morris Mortimer r. Craddock Mullett r. Mason Mumford v. O., W. and W. Rail 3Iurcliie r. Black Murray r. Cuiiie V. Hall Jackson Co. kins PAGE . 47 . 67 . 200 . 85 . 147 . 109 . 38 . 224 31, 42 213 85 43, 44 111 151 69 62 200 180 42 165 Nelson v. The Liverpool Brewery Company Nichols V. Marsland Norris r. Baker North-Eastem Railway Company v. Elliott Northampton i\ Ward Notley r. Buck Novello V. Sudlow . . Nuttal v. BraceweU .. 130 13, 160 199 185 164 220 22 193 0. Olliett r. Bessey Onslow and 'WhaUey's case, Queen r. Castro Ormcnd r. Holland Osbom V. GUlet Oughton r. Seppings Overton v. Freeman Oxley f. Watts .. 112 .. 113 .. 47 146, 156 .. 220 .. 42 .. 216 Page r. Edulgee Palmer v. Paul Paris f. Levy Parkins v. Scott 214 77 98 92 TAi;i,E OK CASES CITED. XIX Partridjfo v. Sfott . . PasU'v »■. Frifinnn . . PuUut Bottle Company r. yi>euct.r Patrick v. Colerick . . PattiKou r. Jonca . . Payne c. Rivau Peake r. UliUuira Pearrtou v. Cox ('. Spouccr . . Peek c. Guruey Penn c. Jack Percival v. riiii)p.s . . Perryinan v. LLstcr . . Phillips c. Jansen . . Pickcriugr r. iJowsou Pillott V. "Wilkinson Piuniugiou c. Gallard Pippin V. Sheppard. . Pope r. Curl . . Popplewcll c. Hodkinsou Potter V. Faulkner . . Potts f . Smith Ponlton V. London and South Western Railw Pretty v. Birkmore . . Prince Albert r. Strange Princess Royal, The Procter v. Hodgson Pryce v. Belcher Tym c. Great Northern Railway Company ay Company 11 PAOB 185 •JOl •J31 IGl 97 100 91 37 19.') 206 233 70 101 92 •J07 217 195 26 70 184 .)0 188 33 129 240 23 194 5 146 Q. Quannan v. Burnett 33 R. R. r. Burdett . 80 — V. Huggins . 141 — V. Revel . 113 — r. Rosswell . 199 — f. ^\^leeler . 229 Rapson r. Cubitt . . . 37 Rawlings v. Tilt . 119 Raynor r. Mitchell . . . 31 Read f. Coker . 119 t'. Edwards . . . 212 r. Great Eastern RaL way C oinpau y . 146 XX TA15LE OF CASES CITED. Eeade v. Conquest . . V. Lacy Eeddie r. Scoolt Reon r. Smith Eeyse v. Powell Rhodes r. Smethurst Rich r. Basterfield . . Richards v. Rose Richardson r. Mellish r. Great Eastern Railway Company V. Metrojjolitan Railway Company V. North Eastern Railway Company Rigby V. Hewitt Rist V. Taux Roberts v. Roberts . , V. Rose V. Smith Robson r. Wliitting-ham . . Rosswell V. Pi-yor . . Rom-ke r. White ]Moss Company Rowbotham v. Wilson Rowcliffe V. Edwards Russell V. Cowley . . r. Home Rylands r. Fletcher Ryan v. Clark ISO PAGE 239 239 156 109 164 54 130 186 63 136 138 136 140 154 89 199 47 186 130 40 185 90 230 120 13 164 Saloman v. Vintners' Company Sattherthwaite r. Dewhurst Saunders i\ Edwards V. MerryT\-eather Savory r. Price Sayre v. Moore Scatterf,'ood v. SUvester Schneider r. Heath Scott .'. Dock Comjjany V. Shepherd . . V. Stamford . . V. Stansfiold . . Searle v. Prentice . . Senior v. Ward Seymour r. Greenwood Sharp r. Hancock . . r. Powell Shcaban v. Aheam.. Shepherd v. Midland Railway Company Simmon r. Milligan 186 154 98 168 233 237 221 208 11, 146 15, 16, 121 .. 238 96, 110 24 48 TADLE OF CASES CITED. XXI PAOK Simpson r. Ilolliday . . . . . . . . . . . . 23.1 r. Siivaj^e . . . . . . . . . . . . . . 200 Sinisoii r. Louiloii Gonoral Oiiiuibus Company . . . . 137 SiujftT Macliine Ci)iiii)any c. Wilson .. .. 221, 22.'), 22G Sinjfloton r. JOa.stcni L'oimties Railway Company . . . . 140 Six Caq)cntei-s' case . . . . . . . . . . . . 103 Skc'tton c. London and North "\Vc.'N(;s rruELY i;x delicto. 5 omission citlicr iul'iiii^^cs sonic iibsolute liirlit, to tlie uninti'iTU])ti'(l enjoyment of Avlildi another is entitled, or eau.ses to siicli other some substantial loss of money, health, or material comfort, be\'on(l tliat suffered by tlie rest of the pul)lic. It will be perceived that two distinct factors go to make a tort, viz. (1) a wrongful act or omission (see Pn/ce V. Bchhcr, 4 C. B. 806) ; and (2) either a oou- sequent invasion of another's right (see Aslthn v. W/iifc, 1 Sill. L. C. 2.S4), or the consequent infliction upon him of some loss (see Icenon. v. Jloon; 1 L'L 11(1 >/m. 480). Neither of these two factors will, by itself, be sufficient to sustain an action for damages, although, as we shall see hereafter, tlie first may, imder certain circumstances, be alone sufficient to sustain an action for an injunction. An invasion of a right, or the infliction of damage, miconnocted with a wrongful act, is technically called a (iamiiiim ahsqiic injuria^ and it is a maxim that ex damno absque injuria noil oritur actio. Instances of this are given below, from which it will be seen that the greatest losses may be occasioned, the greatest discomfoi-t caused, nay, in some instances, the greatest mihappiness may be inflicted, provided that the doer is careful only to do such acts, or to make such omissions, as the law authorizes him to do or make. On the other hand, although a daminuii absque injuria is no ground for an action for damages, the convei'se by no means holds good ; for, as will Ik? seen from the inile, the mere unlawful iufriugement 6 TORTS IN GENERAL. of a riglit is of itself a cause of action, without the infliction of any appreciable damage whatever, and it has been consequently said that ex injuria sine damno oritur actio (a). The interruption, however temporary and however slight, of another's absolute right, is considered by law as a proper subject for reparation, and substantial damages have more than once been awarded where the surroundings of the plaintiff have been very con- siderably improved and his comforts very consider- ably heightened for the period during which the defendant has prevented him from exercising the right in c[uestion. But where no absolute right has been invaded, then some substantial loss of money, comfort, or health inflicted upon the plaintiff beyond that suffered by the rest of the pubKc, by the un- lawful act or omission, must be proved. The reason of this is very clear and very reasonable. In the case of the infiingement of a right, there is a grievance peculiar to the jmrty injured, as distinguished fi'om the public generally; but where no right is infringed, but merely an unlawful act or omission committed or made, there the grievance is properly one affecting the public and not any private individual in par- (a) ThLs maxim can ob\dously only be accurate by using the ■word injuria in the sense of a priiv/te injury, for a mere public wrong will not alone sustain an action. If, however, we use it in this sense in the maxim ex damno sine injuria non oritur actio, it becomes obvious that it is too narrow, because a loss caused connected with a public -wrong is sufficient. I have therefore in this work used the word injuria in the sense of a wTongf ul act or omission, independently of the question whether such act or omission was ^^^•ougful only rjua some individual or qua the iJublic generallj', and I have used the word damnum as signifying a private grievance. OF WRONGS rUUELY EX DELICTO. 7 ticiilar; and if every member of the public were allowed to bring actions in respect of it, there would be no limit to the number of actions wliioli miglit bo brought ( Wiiitcrljutfoiii v. Lord Derh;/, L. 11., 2 Ex. 31G). The remedy of the public is by indictment, if the unlawful act amounts to so serious a dereliction of duty as to constitute an injury to the public. But if in addition to the injury to the public, a special, peculiar, and substantial damage is occasioned to an indi\idual, then it is only just that he should liave some private redress. Let us now glance at ?omo illustrations of the foregoing rule : — (1) If one trespasses upon another's land, that is^ the invasion of an absolute riglit ; but if the trespass/ was committed in self-defence, in order to escapel from some pressing danger, no action will lie in re-i spect of it, because the law authomos the commis- sion of a trespass for such a purpose ; and, therefore, although there was a damnum — namely, a ])rivate grievance, there was no injitria or wrongfid act, and the trespass was consequently a damnum ah.^qnc in/unVi (37 Hen. 6, 37, pi. 2G). (2) Again, if I o^vn a shop Avliich greatly depends for its custom upon its attractive appearance, and a company erect a gasometer hiding it from the public, no action is maintainable by me ; because, although my trade may be iniincd by the obstruction, yet the gas company are only doing an act authorized by law, namely, building upon their own land (lluff v. Im- perial Gas Co., L. IL, 2 C/i. App. 108). (3) A legally qualified voter duly tenders his voto to the returning ofRcer, who ^\Tongly refuses to re- 8 TORTS IN GENERAL. crister it. The candidate for whom the vote was ten- dered gains the seat, and no loss whatever, either in money, comfort, or health, is suffered by the rejected voter ; yet his absolute right to vote at the election is infi'inged, and that by an imlawful act of the re- tiu-ning officer, and hence we have here an uy'uria and a damnum sufficient to support an action [Anhhij V. Wiite, 1 Sm. L. C. 251). (4) A man erected an obstruction in a public way. The plaintiff' was delayed on several occasions in passing along it, being obliged, in common with every one else who attempted to use the road, either to pursue his journey by a less direct road, or else to remove the obstruction. It was held, however, that he could not maintain an action, because although there had been an unlawful act on the part of the defendant, yet there was no invasion of an absolute right, and no substantial damage peculiar to the plaintiff beyond that suffered by the rest of the j)ublie [Winterhottom v. Lord Derby, L. E., 2 Hx. 316). (5) The defendants left an unfenced hole upon premises of theirs adjoining a highway. The plaintiff, in passing along the highway at night, fell into the hole, and was injured. Here the plaintiff clearly suffered a special and substantial damage beyond that suffered by the rest of the public, and accord- ingly he recovered damages {Iladleij v. Taylor, L. i?., 1 C.P. 53). (6) To give one more example similar to the last. The plaintiff kept a coffee-house in a narrow street. The defendants were auctioneers, carrying on an ex- OF WKONGS I'UUELY KX DEI. It TO. "J tonsivo business in the same noipliboiirliooJ, having an outlet at the rear of their premises next adjoiuiiijjj the phiintiffs house, wliere thoy were constantly loading and unlr)ading goods into and from their vans. The vans intereepted the light from the plain- tiff's eotfee-housG to such an extent, that ho was obliged to bum gas nearly all day, and access to his shop was obstructed, and the smell from the horses' manure made the house imcomfortable. Here there was a state of facts constituting a [)ublic nuisance, but there was also a direct and substantial private and particular damage to the plaintiif, beyond that suffered by the rest of the public, so as to entitle him to maintain an action {Bciyai/iin v. Sforr, L.li., C.P. 400; and see also JF/tife v. llindlci/ Load Boards L. It.y 10 Q. li. 219). Of Injuriae, or Wrongful Acts. In the words of I'ratt, C J., "torts are iulinilely various, for there is not anything in nature that may not be con- verted into an instrument of mischief" (see Cliopman v. Pirki'rst/i//, 2 in/s. 14G). It is, therefore, hopeless to attempt any definition of what constitutes a wrongful act or iiij'iiria, upon wliich an action for tort may be founded ; but, broadly speaking, the following rule may, perhaps, give the student some standard by which to measure particular cases : — Rule 2. — A man is guilty of an iiijuiiu wlio, "without authority or excuse, either — (a) Wittiiio-ly or unwittingly does any act, It 10 TORTS IN GENERAL. or makes any wi'ittcn or verbal state- ment, wliicli infringes npon any absolute right of another person ; (b) Wittingly or imwittingly does any act which is f(jrl3iclden by law ; (c) Omits to do something which a reason- able man would do, or does some- thin g: which a reasonable man would not do ; (d) Makes any false statement, either Avritten or verbal, to another, "^^dtli intent to deceive 5 (e) Omits to make any statement with in- tent to deceive in cases in which there is a legal duty upon him to make such statement. Roughly speaking, therefore, injurice proceed either from misdeeds, neglects or frauds. Involuntary Injuriae. AVhere the act or omis- sion not authorized by law is committed iuvoluntarily, no action lies. Rule 3. — Xo person is legally responsible for any act or (miission n(^t attriljutable to active or passive volition on his 2)art. I do not mean to say that a man who sins from ignorance, and not from malice, is thereby excused. OF WRONGS PURELY KX DKI.KTO. H Far from it, for l»y reasonable iinjuiry lio might set himself right; and, indeed, on grounds of public jtolioy alone, a]»ai*t from motajihysical eonsiderations, it is obvious that it would be highly inconvenient and dangerous to admit any such doctrine. The above rule, differently put, means, in the language of an ancient justice, that "no man shall be excused of a trespass, tuiless it be jiidged utterly without his fault." (1) A horse driven by tlie defendant was alaraied by the noise caused by a butcher's cart driven fiu-iously along the street,and, becoming ungovernable, ran away and injured the plaintiff's horse. It Avas, however, held, that as the act was involuntary on the defen- dant's part, he was not liable ( Wahonan v. liohiit-soii, 1 BiiKj. 213; and see Bcclirith v. SJiordihv, 4 Jittrr. 2092; and Scott v. London Ihrh Co., 34 L. J., Ex. 220). (2) Under the Metropolis Ijocal ^lanagement Act (L'^ «t 10 Vict. c. 120), a duty is imposed upon the vestry, of properly cleansing the sewers vested in them. Under the premises of the plamtifF was an old drain, which was one of the sewers vested in the vestry. This (bain having become choked, the soil therefrom iiowed into the cellars of the plaintiff and did damage. In an action against the vestry, the jiuy fomid {infer alia) that the obstruction was unknown to the de- fendants, and could not by the exercise of reasonable care have been known to them. Held, that upon this finding the defendants were entitled to the vei-dict [Hammond V. Vcsfr// of St. Fancva-s L. 11, 9 C. P. 31 G). (3) On the defendant's land were artificial pools, 12 TORTS IN GENERAL. containing large quantities of water. These pools had been fonned by damming up, with artificial em- bankments, a natural stream which rose above the defendant's land and flowed through it, and which was allowed to escape from the pools successively by weirs into its original course. An extraordinary rain- fall caused the stream and the water in the pools to swell, so that the artificial embankment was carried away by the pressure, and the water in the pools being suddenly loosed, rushed down the course of the stream and injured the plaintiff's adjoining property. The plaintiff having brought an action against the defendant for damages, the jury found that there was no negligence in the construction or mainte- nance of the works, that the rainfall was most exces- sive, and amounted to a vis major, or visitation of God. Under these circumstances, it was held, that no action was maintainable, because, as Bramwell, B., said, "the defendant had done nothing -^Tong; he had infiinged no right. It was not the defendant who let loose the water and sent it to destroy the bridges. He did, indeed, store it, and stored it in such quan- tities that if it were let loose it would do, as it did, mischief. But suppose a stranger let it loose, would the defendant be liable ? If so, then if a mischievous boy bored a hole in a cistern in any London house, and the water did mischief to a neighbour, the oc- cupier would be liable ; but that cannot be. Then why is the defendant liable, if some agent over which he has no control lets the water out ? The defendant merely brought the water to a place, whence another agent let it loose, hut the act is that of an agent he OK WRONGS PURELY KX DKMCTl). I'-i cfiniiof confroV^ {yjchoU y.^Iiirjiliiiii!^ L. 11., In Kr. 255 ; afTimied, L^ R, 2 Ex. Die. 1). (4) Tlio above caso nitist Lo oarefiilly distiuf^uisliod from tho Avoll-knowii lcaclin(ing to save tlicni- selves Ly means of a plank which is not suiliciently large to sustain them Loth, one of them isjustified in l»us]iing the other off. This however is an example rather appertaining to criminal than civil law. (I) A person wrongfully tlirew a sqiiih on to a stall, the keeper of which, in self-defence, threw it off agahi; it then aliglited on another stall, was again tlirown away, and, finally exploding, Llindcd the plaintiff. The liability of the persons who tlirew it away from tlieir stalls in self-defence was not the question before the court, but a dictiuu of Chief Justice De Grey is a good illustration of the sub-rule lie said, "It has been urged, that the intervention of a free agent will make a difference ; but I do not consider "Willis and li3'al (the persons who merely tlirew away the squil> from their respective stalls) as free agents in the present case, but acting under a compidsive necessity for their own safety and self- l)reservation " {Scoff v. Shrphcnl, 2 IF. Bl. 894). The first example of the first rule {.suprri) is another example of the above sub-mile. Unintentional Injuries. Although, as we have seen, no act or omission can bo said to bo wTOngful uidess it is within the power of the ju-rson doing or omitting to abstain from doing or omitting to do it, and although, therefore, everj' WTongful act must in a certain sense be either actively or passively 16 TORTS IN GENERAL. intentional, yet it is no defence to an action tliat the "UTongdoer did not intend to cause any damage. EuLE 4. — Every person is presumed to) intend the probable consequence of every V voluntary act or omission of his, not autho- 1 rized by law. Of course an intention to inflict an injury makes a tort very niucli more serious from a moral point of view, and, as we shall see hereafter, is an impoitant factor in assessing the amount of damages to he awarded to the injm-ed party; but neveitheless actual intention is not a necessary ingredient, being always irrebutably presumed. (1) In the above-mentioned case of Scott v. SI/cp-j herd, the person who first started the squib was held \ hable for the loss of the plaintiff's eye, although it was proximately caused by the last person who re- moved it from his stall. (2) A person has an unguarded shaft or pit on^ his premises. If another, lawfully coming on to the ' premises on business, falls down the shaft, and isv injured, he may bring his action, although there was ■ no intention to cause him or anyone else any hurtj {Indennaur v. I)amc><, L. E., 2 C. P. 311). Remoteness of Damage. The rule, however, is subject to the following qualification : — Sub-rule. — No action lies where the injuria and daiiniuiii are not umally found in sequence, unless it he shoicn that the defendant linen; or had reasonable means OK \VK()N(iS I'lUKI-Y KX DKJ.KTO. 17 of /ciioin'jii/, (lidt loiisciiutuvrx, not iisKdIlij rcsit/diiff from (//(' iirf, irrrc, hi/ rvdHon of HOine cristimj catufc, lihi'lif to intcrrcnc so person sufFcrmg spet-ial 20 TORTS IN GENERAL. damage ; and " the right to maintain an action for special damage residting from a breach of public duty is not taken away, by reason of a penalty, recoverable by a common informer, being annexed as a punishment for the non-performance of a public duty, although it is competent for the plaintiff to sue for the penalty if first in the field " {Bedford \. Hood, 7 I. R. 627). In such cases, the penalty is cmnu- lative upon the ordinary remedy by action ; the one being a punishment for the breach of a public duty, the other a recompense for a private ^^Tong {Ad. 38). (2) "Water companies are, by Act of Parliament, obliged to keep their pipes to which fire plugs are attached constantly charged with water at a certain pressure, and are to allow all persons, at all times, to use the same for extinguishing fbe, without compen- sation ; and for neglect of this duty a penalty is imposed, recoverable by a common informer. On a demurrer to a declaration by which the plaintiff claimed damages against a water company for not keeping their pipes charged as required, whereby his premises were burnt down, it was held that the action would lie {AfJtinsoii v. GntesJicad IVatci'/rorks Co., L. B., 6 Ex. 404). Statutory Remedy. Sub-iTde 1. — But ichcre the statute crcat'uKj a new duty, or ohtUjntion, prockles a mode of obtaining compensation for prirate special damage hy means of a ^;c»f/% recoverahle hij the party aggrieved, there is no other remedy, — as the remedy is then prescribed by the act (per Campbell, C. J., CoucJi v. Steel, sup.; UndcrhiU v. Ellicombe, M'Cl. Sf Y. 455). OF WKONGS ITKKI.Y V.X DKI.KTO. 21 Where no Right created. .Sub-rule 2. — ^ Iflicrc a (luti/ IS crcdtrd hi/ ii sfiifiifi' for tlw purpour nf pi'cinifiiif/ a ini-sr/iir/ of a p(irfi'cii/ar kind, a person irho, hij reason of fiiiof/ior^s uvyUrt of the Htatutonj dtitij, suffers (I foss of a different fiind is not entitled to main- tain an aetion for damaijes in rexpeef of siiefi tos.s (Gorris V. Seott, L. i?., 9 Ex. 125). (1) Thus, in the above case, the defendant, a ship- owner, undertook to carry the plaintiff's sheep from a foreign port to England. On tlie voyage, some of the shoop were Avaslied overboard, by reason of the defendant's neglect to take a precaution enjoined by an order of tlio I'riv}' Couiioil, whicli was made under the authority of the Contagious 1 )iseases (Animals) Act, 18G9. It was however held, that the object of the statute and order being to prevent the sj^read of contagious disease among animals, and not to protect them against the perils of the sea, the plaintiffs could not recover. (2) And so, where certain regulations were estab- lished by statute for the management of the pilchard fisher}', and enforced by the imposition of penalties ; it was held, that a fishenuan who had lost his proper tiUTi and station, according to the regulations, through the breach of them by another fisherman, coiUd not maintain an action for damages against him, for the loss of a valuable captm-e of fish, wliifh tlie latter had taken, tlirough being in such wrong place; as the object of the statute was to regidate the fisher}', and not to give any individual fishermaTi a riglit to any particular place {Sterens v. Peaeoehx, 11 Q.li.lAl). (•i) But where, by 4 & 5 Vict. c. 40, s. 17, a penalty 22 TORTS IN GENERAL. is imposed upon unauthorized persons unlawfully importing books, reprinted abroad, upon wbich copy- right subsists, the remedy by action is not taken away from the authors ; for there is a right created in their favour, and, therefore, the penalty is cumulative {Novello V. SucUon; 12 C. B. 188). Felonies. Eule 6. — AVliere an injm^y\ amounts to an infringement of tlie civil rights of an individual, and at the same time to a felonious wrong, the civil remedy by action is suspended until the party inflicting the injury has been prosecuted (Cockburn, C. J., Wells V. Abrahams, L. E., 7 Q. B. 557). But although this is the rule, it is extremely doubt- ful how it can be enforced. It is certainly no ground for the judge at the trial to direct a nonsuit ( WcU>i v. Abrahams, sup.), and it is excessively doubtful whether it could be raised by plea, because " the effect of that woidd be to allow a party to set up his own crimi- nality. But it may well be, that if an action were brought against a person who was either in the coiu-se of being prosecuted for felony, or was liable to be prosecuted for felony, the summary jmisdiction of the court might be invoked, to stay the proceedings which would involve an undue use, probably an abuse, of the process of this coui"t ; in which case the court is always willing to interfere to prevent such abuse" OF WRONGS I'lUKI.Y KX DF.I.KTo. 23 (iKT (ockljuru, (J. J., iliiil). And in tlio saino case, lUiukbiini, J., saiil, "I do not seo how a plaintiff can be prevented from trying his action, unless the court, acting under its summary jurisdiction, interfere." . . . " Fnjm the time these cases were decided, there is no reported instance of the court ha^'ing interfered to stop an action until we corao to Gii/isnii v. irootf/ii/ (2 C. ^- r. 41). That case went to this extent, that where a horse had been stolen l)y A., and B. after- wards had the horse, the ownier could not afterwards bring an action to recover it from 1>., uidess h^ ha'posc, fraudulently representing it as sound, and it exploded and injured the son, it was held that he could maintain an action of tort, although not privy to the warranty [La ncj ridge v. Levij, 4: M. 8f jr. 33S). (3) So if a surgeon treat a child unskilfully, he will be liable to the child, even though the parent contracted with the surgeon [Pippin v. Sheppard, 11 Price, 400). (4) So "a stage-coach proprietor who may have contracted with a master to carry his servant, if he is guilty of neglect, and the servant sustain personal injury, is liable to him ; for it is a misfeasance to- wards him if, after taking liim as a passenger, the proprietor drives without due care" {Longmeid v. Ilollidaij, 6 Ex. 767,' per Parke, B.). (5) And so where a servant travelling with his master, who took his ticket and paid for it, lost his portmanteau through the railway company's negli- gence, he was held entitled to sue the company {3I((rsMlY. York, 8fc. P. Co., 21 L. J., C. P. 34). OF QUASI TORTS. 27 Misfeasance. Thero is a class of contracts which aro j)articularly nearly allied to torts. Such are, gratuitously uuilortakon duties. Sucli duties are no! coutracts in ouo souse, namely, that beiug wthout consideration the contractor is not liable for their nonfeasance, /. o. for omitting to perform them. But on the other hand, if ho once commences to perform them, the contract then becomes choato as it were, by viiiue of the following rule — Ri'Li: 1). — Tlio coiilideiicc induccHl by uiulertaking- any sendee for anotlier, is a sufficient legal consideration to create a duty in its performance {Coggs v. Bernard, 1 Sm. L. Ca. 177, ijt/t cil). Thus in the above case, the defendant gi-atuitousl}- promised the plaintiff to remove several liogsheads of brandy from one cellai' to another, and in doing so one of tho casks got staved tlu-ougli his gross negligence. Upon these facts, it was dt'cided that the defendant was liable ; for althougli his contract could not have been enforced against him, j'et having once entered upon the performance of it, he thence became liable for all misfeasance. Bailments. >Such is a brief account of tlie law upon tliis head : In some works, injuries to goods wliilst in the keeping of carriers and innkeepers are described as c2 28 TORTS IX GENERAL. torts ; in others as breaclies of contract ; but how- ever actions in respect of them may be framed, they are in substance ex contractu, being for non-perform- ance of the contract of bailment, and not for a tort independent of contract [Rose. 539; 2 BJ. Com. 451; Lcgge v. Tucker, 26 L. J., Ex. 71). I shall therefore not treat of them in this work. ( ^^J> ) CHAPTER. III. Of the LiAiiii.iTY OF Masters for the Torts (jf THEIR Servants. General Liability. It is a well-known legal maxim, that qui fnvit jwr (ilium yfacif per .sc, whence the following rule is easily deduced — Rule 10. — A person wliu j)uts anollicr in liis place, to do a class of acts in his absence, is answerable f«n' the wron<^' of the person so intrusted, either in the manner of doin^ such an act, or in doing such an act under cln-uni- stances in which it ou^ht not to have been done; })rovided that what is done is not done from any caprice ., L. /.'., 7 C. 1\ 410)." (1) Thus if a servant drive his master's oaniago over a bystander; or if a gajuokeeper employed to kill game, fire at a hare and kill a bystander; or if a workman employed in building, negligently drop a stone from the scall'old, and so hmi a bystander; the person injured may claim reparation from the master; because the master is ])ounil to guarantee the public against all damage lu'ising from the 30 TORTS IN GENERAL. ■wrongful or careless acts of Mmself, or of his ser- vants when acting within the scope of their employ- ment (Bartomhill Coal Co. v. Reid, 3 Macq. H. L. Ca. 266). Acts done outside the Employment. Sub- rule 1. — A master is not responsible for the wrongful { act of his servant, unless the act was an act done hy the servant in the course of Ids employment. (1) It was the course of employment of the cannan of the defendant, who was a brewer, with the defen- dant's horse and cart to deliver beer to the customers, and on his return collect empty casks, for each of which he received a penny. The carman having, without the defendant's permission, taken out the horse and cart /or a purjmse entirely of his o/rn, on his way back collected some empty casks, and while thus retm-ning the plaintiff's cab was injm-ed by the carman's negligent diiving. Under these cii-cum- stances, it was held that the defendant was not liable, and Lindley, J., said, "The question is, whether under these circumstances, the servant was acting in the course of his employment. In my judgment he was not. It is certain that the servant did not go out in the course of the employment. Does it alter the case, that whilst coming- back, he picks up the casks of a customer? I think it does not. He was returning on a purpose of his own, and he did not convert his own private occupation into the employment of his master simply by pick- ing up the casks of a customer. The conclusion, therefore, to which I come is, that the servant was not engaged in his master's business in any sense, lIAinillY OK M\Mi:ilS FOR TOUTS OF SKRVANTS. 31 uiul therefore our judgment must be for the defen- dant" {Raynn- v. Mitchell, 25 W. R. 032). (2) So, wliero ti master intrusted his servant with his carriage for a given purpose, and the servant drove it for another purpose of liis own in a dilferent direction, and in doing so di'ove over the phiintiff, the master was liekl not to ho responsible, on the ground that the servant was not acting within the scope of his emphn-ment; for he had stai-ted upon a new and entirely independent journey which had nothing to do with his employment {Stutrij v, Axhton, L. R., 4 Q. B. 47G). But if the servant when going on his master's business had merely taken a somewhat longer road, such a deviation would not be considered as taking him out of his master's em- plojTnent {Mih-JuUx. CramccWr, 22 L. J., C. P. 100 ; and see IHuMn/ v. Pepper, L. R., 2 Q. B. D. 276). (3) So, where a servant A\'antonly, and not in the execution of his master's orders, struck the plaintiff's horses, and so produced an accident, the master was held not to be liable {Croft v. Alkou, 4 11. «.V A. 090). Wilful act. Sub-inile 2. — A master /s respomihie for the matnier in irhirh his serrant does an act for the master^ heuejit, irhich act is icithin the scope of his probable aathoriti/, even though such niaiiner iras con- tra ri/ to the master's orders; but a master is not respon- sible for an act of his serrant uhieh is in itself and not mereli/ in the manner of doing it, illegal. (1) In Limpus v. London General Omnibus Co. (11 W. R. 149 ; 7 L. T., X. S. 2j[^j, the driver of an omnibus plying between l'.'''aua K., wliilst plying between those places, wilfully, and contiury to express 32 TORTS IN GENERAL orders from his master, pulled across the road, in order to obstruct the progress of the plaintiff's omni- bus. In an action of negligence, it was held that if the act of driving across to obstruct the plaintiffs' omnibus, although a reckless driving, was neverthe- less an act done in the course of the driver's service, and to do that which he thought best for the interest of his master, the master was responsible ; that his liability depended upon the conduct of the servant in the course of his employment, and that the orders given to him not to obstruct were immaterial. And Willes, J., said, "It is perfectly well known that there is substantially no remedy whatever against the driver of an omnibus, and therefore it is neces- sary that for what he does in the com-se of his master's service the master should answer. There should be some person who is capable of paying damages, and who may be sued by people who are injured by improper driving. It appears to me that this was a case of improper driving, and not a case in which the servant did anything altogether incon- sistent with the discharge of his duty towards his master and out of the course of his employment, a fact upon which it appears to me that the case turns. This omnibus of the defendants was di'iven before the omnibus of the plaintiffs. Now, of course, one may say that it is no part of the duty of a ser- vant to obstruct another omnibus; and in this case the servant had distinct orders not to obstruct the other omnibus. I beg to say that in my opinion those instructions were perfectly immaterial. If they were disregarded, the law casts upon the master the liability for the acts of his servants in the course of LIAI'.ll.IlV OF .M.VSIKRS FOR TOUTS OF SKKVANTS. 33 his oraplojTiient ; uiitl tlio law is not so futile as to allow the master, l)y giving secret instructions to his servant, to set aside his own liahility. I hold it to be perfectly immaterial that the master directed the servant not to do the act which he did. As well might it be said that if a master employing a servant told him that he should never break the law, ho may thus absolve himself from all liability for any act of his servant, though in the course of his employment. .... Tlie ]iroj)er question for the jury to determine is, whether what was done was in the course of the employment, and for the benefit of the master." Llaekbuni, J., also, quoting and approving the charge o| the learned judge who tried the case, said, "If the jury came to the conclusion that he did it, not to further his master's interest, not in the course of his (Muployment as an omnibus driver, but from private spite, wth an object to injure his enemy — who may be supposed to be the rival omnibus — that would bo out of the course of his employment. That saves all possible objections." (2) The case of Pou/foii v. London and Sont/i- Wrsfn-n R. Co. {L. li., 2 Q. B. 534) seems, at first sight, to be inconsistent with the above case. There, a station-master having deniaiidrd payment for the carriage of a horse conveyed by the defendants, an'csted the plaintiff, and detained him in custody until it was ascertained by telegraph that all was right. The railway company had no power what- ever to arrest a person for noni^yment of carriage, and therefore the station-master, in arresting the plaintiff, did an act that was wholly illegal, not in c 5 34 TORTS IN GENERAL. the mode of doing it, but in the doing of it at all. Under these circumstances, the court held that the railway company were not responsible for the act of their station-master; and Blackburn, J., said: "In Limjms v. General Omnibus Co., where the question was, whether or not the direction of my brother Martin was erroneous, there was a difference of opinion. The late Mr. Justice Wightman thought it was; that the learned judge had gone too far to make the company liable : the other judges thought that there had been no misdirection, and that the act done by the di'iver was within the scope of his autho- rity, though no doubt it was a wrongful and im- proper act, and, therefore, that his masters were responsible for it. In the present case, an act was done by the station-master completely out of the scope of his authority, which there can be no possible groimd for supposing the railway company autho- rized him to do, and a thing which could never be right on the part of the company to do. Having no power themselves, they cannot give the station- master any power to do the act." And Mellor, J., said : " If the station-master had made a mistake in committing an act which he was authorized to do, I think in that case the company would be liable, because it would be sujoposed to be done by their authority. ^Vhere the station-master acts in a manner in which the company themselves would not be authorized to act, and under a mistake or misappre- hension of what the law is, then I think the rule is very different, and I think that is the distinction on which the whole matter turns." I.IAIlir.riY OK MASTKKS I'Oll luKTS OF SKKVANTS. Ij.J (;i) In Uojr V. arnit Xorthmt R. Co. {H K. .y E. 072), on the other hand, the act was the arresting a man for the benefit of the company where there was anthority to an'est a passenger for nonpajTiient of liis fare ; and the court accordingly lield, that the policemen who were employed, and the station- master, must be assumed to be authorized to take people into custody whom they believed to be com- mitting the act, and that if there was a mistake, it was a mistake within the scope of their authorit}'. (4) So, again, in Bdijhn v. MduvheHier^ Shcjficlil (oul Lincoln R. Co. {L. R., 7 C. P. 415), the plaintiff, a passenger on the defendants' line, sustained injuries in consequence of being pulled violently out of a railway carriage by one of the defendants' porters, who acted imder the erroneous impression that the plaintiff was in the ^vl•ong carnage. The defendants' bye-laws did not expressly authorize the company's servants to remove any person being in a -vn-ong car- riage, or travelling therein without ha^ing first paid his fare and taken a ticket, and they even contained certain ])rovisions which implied that the passengers should be treated with consideration ; but neverthe- less, the coui-t considered that it was within the pro- bable scope of a porter's authority to gently remove any person in a wrong can-iage, and as the porter had exercised his probable authority violently, they held that the company was responsible (see also SeijmoHr v. Onrnicooil, ][. ^V N. '359). Doctrine of Ratification. The preceding re- marks have reference only to cases in which the 36 TORTS IN GENEEAL. injury has been occasioned either by the negligence of the servant in the course of his emplojTuent, or by his wilful act, done under such circumstances as make it probable that he was authorized to commit it, upon proper occasion, but had used such autho- rity injudiciously or carelessly. But there is a third class which differs from both of these, viz. where a servant commits a tort whilst not acting in pursuance of his master's employment, but which the master subsequently adopts. Rule 11. — A tortious act done for another, by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal if subsequently rati- fied by him, and whether it be for his detri- ment or his advantage, to the same extent as y i ^ the same act done by his previous authority ( Wilson V. Tumman, 6 31. 6f Gr. 2-12). This rule is generally expressed by the maxim, ^ " Omnis ratihahitio retrotmliifur, et mandato priori (equi-LOi'^'^ paratur,'" and is equally applicable to torts and to \, , * contracts. It should be observed that the act must T .1., have been done for the use or for the benefit of the '^. t principal (4 Inst. 317; Wiho)i y. Barker, 4 B. 8f Ad. ^ (Jl4 ; and judgment, Dallas, C. J., Hull v. Pickorsgi]!, 1 B. 8f B. 286). Meaning of " Servant." The term "servant" does not exclusively apply to menials. "5!. I.IAllII.ITY OK MASTKRS KOU TOUTS OK SKUVANTS. 37 llvLK 12. — Wlicii ii mail Is liircHl l)y tin; master, cltluM- ixTsonalK , <»r l)y tlioso ■svlio aro intrusted I>\' the master \\illi llic liiriiii;- of servants, to do tlie l)iisines.s rec^uired of liim, tlie master will be resjxnisiblc for any torts committed by him Avithin the scope of such ^)ns'u\vss (^fjf (/((///<■/■ V. Po/)i/rr, •"> //. A" C. 0-17); Ijut a contractor, sub-contractor, or otiier ])erson exercising an independent em- ])loyment, is not a servant within the mean- ing- of tlic rule {llapson v. Ciihift^ 9 M. \ W. 710; Pearson v. Co.r, L. R. 2 C. P. D. :iG9). (1) The first part of this rule applies not only to domestic servants but to clerks, managers, agents, and in short all wliom the master appoints to do any work, and over whom he retains any control or right of control, even though they bo not in the immediate employ, or imder the immediate superin- tendence of the master. Thus " if a man is owner of a ship, he himself appoints the sailing nuister, and desires him to appoint and select the crew ; the crew thus become appointed by the owner, ami are his servants for the management of liis sliip; and if any damage happen through their default, it is the same as if it happened through the immediate default of the o-svmer himself " (Zr//?r///rr v. Poiniir, .n/7>., per Littledale, J.). (2) A contractor employed by navigation commis- sioners, in the co\irse of executing the works Hooded the plaintiff's land by improperly, and without 38 TORTS IN GENERAL. authority, introducing water into a drain insuffi- ciently made by himself. Here the contractor, and not the commissioners, was held liable {Allen v. Howard, 7 Q. B. 960). (3) So where a company contracted with A. to construct a railway, and A. sub- contracted with B. to construct a bridge on it, and B. employed C. to erect a scaffold ujider a special contract between hj-rn and C; a passenger injured by the negligent construction of the scaffold could only sue C, and not A., B., or the company [Knight v. Ge.v, 6 Ex. 721). (4) So where a butcher bought a bullock, and hired a licensed drover to drive it to liis shop; and the di'over instead of so doing employed a boy for the pm'pose; it was held that the butcher was not liable for the injmious consequences caused by the boy's negligence, as the relation of master and ser- vant did not exist between them {JliU'ujan v. Wedge, 12 A. ^' E. 737). (5) So if the owner of a carriage hire horses from a job master, who at the same time provides a chiver, the job master is liable for accidents caused by the driver's negligence, for he is his servant, and not that of the owner of the carriage [Quarnuui v. Bur- nett, 6 M. 8f W. 499 ; and qua the public a similar principle applies to cab proprietors and cab di'ivers (Venables v. Sniit//, L. R., 2 Q. B. D. 279). Liability of Employer for Contractor's Torts. Sub-rule 1. — A person cmjjloi/ing a contractor idll he liable for the contractor's nrongful acts, if either (a) tJie employer retains his control over the con- MAllILIl Y OK MAMKJls Folt lOUIS OF si:il\ VMS. li'J tractor, mid pir.'iuunlli/ interfrrvs and ma/.cs hiuiHelt' a parti/ to the act ichich occaaionx the itaniatfr ; or (b) ic/ierc the thiiuj contracted to be done ix itself an- lairfal; or (c) a-here a legal duti/ ix incumbent upon the employer, and the contractor either omit a or imjter/ecfl;/ j>erjbrm.s ftueh duty. (1) Thus where the defendant employed a con- tractor to make a di-ain, and the contractor's man left some of the soil iu the highway, in consequence of whicli an accident happened to the plaintiff, and afterwards the defendant, on complaint being made, promised to remove the rubbish, and paid for carting part of it away, and it did not appear that the con- tractor had underf alien, to remove it ; it was held that the defendant Avas Hable {Buryexs v. Gray, 1 C. B. o78). (2) A company, unauthorized to interfere with the streets of Sheffield, directed theu- contractor to open trenches therein ; the contractor's servants in doing so left a heap of stones, over which the plaintiff fell and was injured. Here the defendant company was lield liable, as the interference with the streets was in itself an injuria or wrongfid act (A7//.s- v. Sheffield das Conxamrrx' Co., 23 L. J., Q. Ji. 4'J). {'i) So jvliere the defendants were authorized by an act of parliament to construct an opening bridge over a navigable river, a duty was cast upon them to construct it properl}' and efficiently; and where the plaintiff suffered loss througli a defect in the con- struction and working of the liridge, it was licld that the defendants were liable, and could not excuse themselves by throwing the blame on their contractor. 40 TORTS IN GENERAL. Temporary Employment by Another. Sub-rule 2. — Wlio'c a master tonporarUy /ends Iris servant to another, under u-hose immediate control he is for the time being, and whose icork he is doing, the master will not he resjMnsihIe for his servant's torts com- mitted during such temporary employment by another. (1) Thus in Rourke v. Wltite Moss Coal Co. {L. B., 2 C. P. D. 205), the defendants had contracted with W. to sink a shaft for them at so much a yard, W. to provide all necessary labour, the defendants pro- viding steam power and machinery, and two en- gineers, to be under the control of W. The plaintiff, one of W.'s workmen, was injured by the negligence of L., one of the defendants' engineers ; but it was held that the company were not liable for this injury, on the ground, that although L. was their general servant, yet at the time of the injmy he was not actually employed in doing their work, and was under the immediate control of "W., to whom he had been lent by them, and whose servant, therefore, he must be considered to have been. Unauthorized Delegation by a Servant. Rule 13. — A master is not, in general, liable for tlie tortious acts of persons to wliom liis servant has, without authority, delegated his duties, and between whom and the master the relation of master and servant does not exist [suhmittedy (1) Thus it is apprehended that if a master wrote to his groom and ordered him to take the carriage to I.I.Vlill.lTY f>F MASTERS FOR TORIS OF SKKVAMS. •! 1 such a pliU'c, tmd the gnx^u, iiistcjul of taking the carriage liimself, employed A. to do it for him with- out having ever liad any autliorify from tlie master to intrust A. with the carriage, and A. so carelessly drove the carriage as to injure B., no action would lie against the master, f()3). Such is a brief outline of the \iv\ relating to the responsibility of masters to third parties for the torts of their servants; but the learning on the subject is of so technical a character, and the distinctions as to when a servant is, and when not, acting "snthin the scope of his emplo;y'ment, or even whether he be a servant at all, are so very refined, and the authorities are so conflicting, that a legal training is often neces- sary in order that the difference may be ilistinguished. I shall therefore content myself with the foregoing 42 TORTS IN GENERAL. general rules (which are believed to be acciu-ate so far as they go), leaving to other and larger works on the law of master and servant the task of quoting the numerous cases on the subject and commenting upon the very subtle distinctions between them. I would particularly recommend the chapter on the master's liability contained in Mr. Manley Smith's excellent and exhaustive treatise on Masters and Servants, as a very complete exposition of the law on this subject, and would also call the student's attention to the repoiis of the following cases, namely: — Storey v. As//foii, L. E., 4 Q. B. 476; WJiatmau v. Pearson, L. E., 3 C. P. 422 (very con- flicting) ; Lord BoUnghroke v. Local Board of Stcindon, L. R., 9 C. P. 575; Murray v. Currie, L. M., 6 a P. 24; McManus v. Cricket, 1 East, 106; Gregory V. Pijier, 9 B. ^ a 591; Mitchell v. Crasn-eller, 13 C. B. 237; Francis v. CocheriU, L. R., 5 Q. B. 184; Lyons v. Marten,^) A. 8f E. 512; Overton v. Freeman, lie. B. 867; Cidhhertson v. Parsons, 21 L. J., C. P. 165; Welfare v. L. B. Sf S. C. R. Co, L. R., 4: Q. B. 693; and Wilson v. Merry, L. R., 1 H. L. 326. Liability of Master for Injuries caused by Servant to Fellow-servant. Kule 14. — A master is not liable to his servant for damage resulting from the negligence of his fellow-servant in the course of their common employment, unless the servant causing the l.IAHIl.n Y OF MASIKUS FdK TOUTS OF SKKN ANTS. 4-J injury was iiKmnipotcnt to discliar^^c liis duty, or tlu' servant injured was not at tlio time acting;' in his master's cniplnNnicnt. (1) Tluis where a workman at the top of a build- ing carelessly let fall a heavy substance upon a fellow workman at the bottom, the master was held not to bo responsible, without proof of the ineom- jietency of the workman causing the injury to dis- charge the duty in which he had been employed i^Wiiiyeft V. Fox, 20 L. J., Eu: 118). (2) So in Hall v. Johmon (34 L. J., Ec 222), the plaintifT was a miner in defendants' employ, as was also an underlooker whose duty it was to see that as the mine was excavated the roof shoidd be propped up. This he neglected to do, whereby a stone fell and injui-ed the plaintilf ; but it was held that this attached no liability to the defendants, as no proof was given that they did not use due care in selecting the underlooker for his post. Meaning of Common Employment. Sub- rule: — It is not niLX-sMiri/ to tin- (iiqtltcdtiuit of the (ihove rule, that the serrant caimiiKj, and the .serranf sudainiiHj, the injui'i/, nhould hath he enyaged in pre- ii-sclt/ the same, or even .similar aetn, .so lony (Oi the risk of injur// from the one is so much a natural and necessary eonsequence of the employment uhich the other accepts, that it must be included in the mAv< uhich hare to be considered in his uages {Moryan v. Vale of Neath R. Co., L. IL, 1 Q. Ji. 1 1!> ; Alln, v. New Gas Co., L. R., 1 Ex. J). 251). 44 TORTS IN GENERAL. (i) Thus the driver and guard of a stage-coach; the steersman and rowers of a boat; the man who draws the red-hot iron from the forge, and the man who hammers it into shape ; the person who lets down into or draws up from a pit, or the miners working therein, and the miuers themselves; all these are fellow labourers within the meaning of the doctrine {BartonsJtiU Coal Co. v. Rcid, 4 Jur., N. S. 767). The real test seems to be, whether they are engaged in the same pursuit. (2) In Morrjan v. Vale of Math B. Co. {L.E., 1 Q. B. 149), the plaintiff was in the employ of a railway company as a carpenter, to do any carpenters' work for the general purposes of the company. He was standing on a scaffolding at work on a shed close to the line of railway, and some porters in the service of the company carelessly shifted an engine on a turntable, so that it struck a ladder supporting the scaffold, by which means the plaintiff was thrown to the ground and injiu'ed. It was held, however, that he could not recover against the company, on the ground, that whenever an employment in the service of a railway company is such as necessarily to bring the person accepting it into contact with the traffic of the line, risk of injiuy from the carelessness of those managing that traffic is one of the risks necessarily and naturally incident to that employ- ment (and see Loi-eUy.HouelI,L.R., 1 C. P. D. 161). (3) And again, in Tunncy v. Mid. B. Co. {L. B., 1 C. P. 291), the plaintiff was employed by a railway company as a laboui-er, to assist in loading what is called "a pick-up train," with materials left by LlAllII.Il Y OK MASTKItS FOll TOIIT-^ OK SEKVANTS. i') platelayers and otluTs upon tin- lino. One of tlio tenns of his engap^eraent was that ho should bo car- ried hytlio tniin from I'inninglniin (wliorc lie resided and wlitnce the train started) to the spot at wliieh his work for the day was to be done, and bo brought back to ]>inningh.'ini at the end of each day. As he was retuniing to IMnninghani after his day's work was done, the train in which the plaintiff was, through the negligence of the guard who had charge of it, came into collision ^\^th another train, and the plaintiff was injured. The plaintiff accord- ingly sued the company, but tho court held, that inasmuch as the plaintiff' was being carried, not as a passenger, but in tho course of his contract of service, there was nothing to take the case out of the ordinary rule, which exempts a master from responsibility for an injuiy to a servant tlirough the negligence of a fellow-servant when botli are acting in pursuance of a common emplojnnent. (4) So, again, in Fi/f/mm v. En(jlan< vnn roins ok skkvanin. 47 cautions, or llirou/^li tlir hrcai-li of .soiuc dutv incuinluMit on tlio inastor, or tlirouji:!! tlic personal iic«^li<'on('e of tlic master, tho ser- vant is injured, tlie master will he responsihlc {Onwm'l \. Uolhai'l E. II. ^- K. lOJ; .Is// /.•/./• V. Stanivij\ ;J() L. 7., Q. B. IK\). (1) Thus in Mrllovs v. l^hair (30 X. ,/., Q. Jl. H'-i']), the defendants were owners of a coal mine, and th" plaintiff was employed by them as a collier in the mine, and in tlie course of his ompknnncut it was necessary for him to descend and ascend tlirough a shaft constructed Ly them ; by the defendants' negligence the shaft was constructed luisafely, and was, by reason of not being sufficiently lined or cased, in an unsafe condition. By reason of this, and also by reason of no sufficient or proper appa- ratus having been provided by the defendants to protect tlicir miners from the unsafe state of the shaft, a stone fell from the side of the shaft on to the plaintiff's head, and ho was dangerously wounded. One of the defendants was manager of the mine, and it was worked under his personal superintendence, and the plaintiff was not aware of the state of the shaft. On this state of facts the defendants were held liable. (2) So where a builder knowingly erects a scaffold- ing of unsound wood, and one of his workmen is injured in consequence, he will bo liable (see liobrrfs V. Smith, 2 H. ^' N. 213). (J3) So where a master ordered a servant to take a bag of com up a ladder wliidi the master knew, 48 TORTS IN GENERAL. and the servant did not know, to be unsafe, and tlie ladder broke, and the servant was injured, the master was held Hahle {Willicum v. Cloiujh, S H. ^ N. 258). Servant's knowledge of Danger. Sub- rule. — Where a serrant is injured hy an instrument icMch he is himself using in the course of his employ- ment, and of the nature of u-hieh he is as much aurire as his master, he cannot, at all events f the evidence is consistent with his own ne(jli(jcnce in the use of it being the real cause, recover against the master,' unless there is evidence that the injur// arose through the personal negli- gence of the master, notuitlistanding that such instru- ment icas not the safest for ejecting the object in vieiv. (1) Therefore where a labourer was killed through the fall of a weight, which he was raising by means of an engine to which he attached it by fastening on it a clip, and the clip had slipped off it, it was held that there was no case to go to the jury in an action by his representative against the master, although it appeared that another and safer mode of raising the weight was usual, and had been discarded by the master's orders {JDgner v. Leach, 26 L. J,, Ex. 221; and see also Senior v. Ward, 1 E. 8^ E. 385). (2) A hoarding had been erected by the defendant, a builder, which projected too far into the street, but sufficient room was left for carts to pass ; a heavy machine was placed inside the hoarding and close to it. A cart in passing struck against the hoarding, and knocked do^^^l the machine against the plaintiff, a workman in the defendant's employ. The plaintiff LIAIIII ITY OF MASTERS FOR TORTS OF SKllVANTS. 49 had i)revioiisly maJo sumo complaint of tlio jiositiou of tho machine to his master, but voluntarily con- tinued 1<) -work tlioup^h tho maehino wiis not moved. It was hero held that there was no evidence to go to the jury of the master's liability {Assop v. Yatex^ 2 II. cV N. 7G8 ; Gnfm-^ v. Gidloir, 3 II. Sf N. G4H) ; but seo Ilo/ni'i v. irorf/iinfffoii^ 2 F. i'o tempore. Thus where the plaintiff sent a heifer by the de- fendants' railway to P., and on its arrival, there being only two porters to shunt the truck, the plaintiff, in order to save delay, assisted in shunting the truck, and was injured by the negligence of one of the defendants' engine-drivers, and there was evidence tha,t the station-master assented to his aiding in the shunting, it was held that he was entitled to recover damages {Wriglif v. L. ^ W. IF. R. Co., L. R., 1 Q. B. D. 252). ( ^1 ) CnAPTER IV. Of thk Limitation of Actions ex Delicto, Reasons for Limitation. I have so far treated of the wrongs independent, or qua.si independent, of contract, of -winch the law takes cognizance ; and I have shown how the law gives a renifdy whenever it holds any act to be wrongful, in accordance vnih the maxim " iihi Jhs Un n'inrdium csf.^^ But altliougli there is always a remedy, yet for the sake of the peaco of the kingdom a man is not allowed to enforce his remedy at his own leisure, and after a long interval, in the course of which evidence may have been entirely swept away, which if pro- duced might prove the defendant's innocence. For this and other reasons, various statutes have been from time to time passed, wliich confine the right of action ^\'ithin certain periods after its com- mencement — periods which, as they differ in different actions, will he more particidarly mentioned in the course of the second part of this work. At this stage, I propose to examine only such ndes as api'ly to the limitation of all actions of tort. 1)2 52 TORTS IN GENERAL. Commencement of Period. Rule 17. — AVlien a statute limits the period within which an action is to be brought for an act done or omitted, if the cause of action is a single act, or one which amounts to a tresj^ass, the action must be brought mthin the prescribed period after the actual doing of the thing com^^lained of. But if the cause of action is not the doing of the thing, but the resulting of damage only, the period of limitation is to be computed from the time when the party sustained the injmy {BacltliouBe v. Bonomi, 9 H. L. C. 503). The meaning of this rule is, that where the tort is the wTongful infiingement of a right, then as that constitutes 2^cr se a tort, so the period of limitation commences to run immediately from the date of the infi'ingement. But on the other hand, where the tort consists in the violation of a duty coupled with actual resulting damage, then as the breach of duty is not of itself a tort, so the period of limitation does not commence to nm until it becomes a tort by reason of the actual damage resulting from it. (1) Thus where A. owned houses built upon land contiguous to land of B., C, and D. ; and E., being the O'WTier of the mines under the land of all these per- sons, so worked the mines that the lands of B. sank, and after more than six years' interval (the period of limitation in actions on the case), their sinking caused an injury to A.'s houses : Held, that A.'s 1.IMH VTU)N OF ACTIONS KX DEI.UTO. 53 right of action wiis not LarivJ, iis the tort to him ■was the damage caused by the working of the mines, and not the working itself [Jiarklioiiac v. Jionoini, .snj).). (2) In an action for ^\Tongfld conversion of goods, (which is an injury to a right) the facts were as fol- lows : — A.'s furniture was seized under an execution by the sheriff, and eventually it was bought by A.'s friends, and left in his possession. A. enjoyed the use of it for more than six years and died. Upon A.'s death it was claimed by these friends, and ad- versely by the widow on the ground that the Statute of Limitations barred them from claiming it after they had allowed A. to keep it for six yeai's : it was, however, held that the statute did not begin to run until the friends had claimed the furniture, for the tort was the ^^Tongful conversion of the goods, which had only taken place when the widow refused to give them up {EdicanU's v. C%, 28 Bear. 145). Disability. Rule 18. — Contra nun valeii- tcm agero nulla currit priv.scriptiu. ( W/tcrc a person is under ilisabilif//, iJic statute (Iocs not run.) Thus where persons who would otherwise have the right to sue, are under certain disabilities, (as, for instance, coverture (in case of a woman), idiocy, or insanity,) the period of limitation does not com- mence to run until such disabilities have ceased (see 21 Jac. 1, c. 10, s. 7; '^ ^ A Will. 4, c. 27, %. 10). 54 TORTS IN GENERAL. Exception. — No actions of ejectment sliall be brought, and no distress or entry be made to recover land or rent, but within forty years next after the right of action shall have accrued, notmthstanding that the person entitled to sue may be under some disabdity (3 & 4 WiU. 4, c. 27, s. 17) ; and after the 1st January, 1879, the time will be further reduced to thirty years (37 & 38 Vict. c. 57, s. 5). Disability subsequent to commencement of period no Bar. Sub-rule. — Whenever the stdtiite has once hegini to run it continues to do so [Rhodes V. Sniethurst, 4: M. ^ W. 42; Lafond v. Ruddocl; 13 C. B. 819). Therefore where the plaintiff is under no disability at the time the right of action accrued to him, but subsequently becomes under disability, and continues so until the expiration of the period of limitation, his right of action is barred ; for the statute having once begun to run continues to do so. Continuing Torts. Rule 19. — Wlicre the tort is continuing', tlio right of action is also continuing- {WJiitehoiise v. Felloives, 30 L. J.^ a P. 305). Thus where an action is brought against a per- son for false imprisonment, every continuance of the imprisonment de die in diem is a new imprisonment, and therefore the period of limitation commences to run from the last and not the first day of the im- prisonment {Eardy v. Ryle, 9 R 8f C. 608). ( ^5 ) CTIAPTEll V. Of thk Measuke of Damages in Actions of Tort. The principles which govern the measure of damages in actions of tort are very loose, and, indeed, as Mr. Mayne, in his excellent treatise, lias puintod out, there are many cases of tort in wliich no measure can be given. It will ho at once appai-ent, liowover, that, putting aside cu'cumstanccs of aggravation or mitigation, the compensation to be awarded in respect of an injuiy to property is capable of being far more accm'ately calculated than in respect of injmy to person or reputation ; and, therefore, to some extent the principles of law arc diiferent in these two classes of cases, as ^vill be seen from the follo^\ing rules. Damages for Personal Injury. Rule 20. — Thrro is IK) fixed rule for cstimatiiif^ daiiia^vs in cases of injury to the person, reputation, or feelings, but the damages must be excessive and outrageous to wan-ant a new trial {IlncJde v. Moncij^ 2 Wils. 20o; Corker ij V. Ulckmi, Ir. IL, 10 C. L. 17-3). (1) Fiihc ImprUonmnii. — Thus wliere some work- ing men were unlawfully imprisoned for sLx hours only, being in the meantime well fed and cared for, and the jury nevertheless awarded 300/. to each 56 TOKTS IN GENER.UL. of them, the court refused to set the verdict aside, on the ground that it seemed to them probable that the jury considered the importance of the right of personal liberty rather than the position of the plaintiffs. (2) Seduction. And so in actions for seduction, " although in point of form the action only purports to give a recompense for loss of service, we cannot shut our eyes to the fact that it is an action brought by a parent for an injury to her child, and the jury may take into their consideration all that she can feel from the nature of the loss. They may look upon her as a parent losing the comfort as well as the ser- vice of her daughter, in whose virtue she can feel no consolation ; and as the parent of other children whose morals may be corrupted by her example" (per Ld. Eldon, Bedford v. M'KoicI, 3 £sp. 120). (3) Assault. So in actions for assault and bat- tery, the court will seldom interfere ; and the jury may take the circumstances into consideration, and aggravate or mitigate the damages accordingly. Thus, to beat a man publicly is a greater insult and injury than to do so in private, and is accordingly ground for aggravation of damages {TulUdge v. Wade^ 8 Wils. 18). (4) Defamation. So for defamation, the damages are almost wholly in the discretion of the jury {Kelhj v. Sherlock, L. i?., 1 Q. B. 686), and the court will seldom interfere with their verdict. Exceptions. — The court will interfere with the ver- MEASIUE OF DAMAGES IN AfTIONS OF TOUT. 57 diet, if it ai>j»e;ir tluit tin* jury assi-ssod tho (liiniugos under a mistake or ill-fet'liiig, or if tliey give tlie lilaiutiff more than he is entitled to, according to liis own sliowing, or where the smaUness of the amount shows that the jiuy have made a compromise, and, instead of deciding the issues, have agreed to find for the plaintiff for nominal damages only {ILunhlcton v. Vvrc, 2 Winx. Saioid. 170 ; Brit fan v. S. W. R. Co., 27 L. /., Ex. 355 ; Falmj v. Stanford, L. It, 10 Q. B. 54). Damages for Injuries to Property. It is extremely ^lillicult to lay down any rules witli regard even to this Lranoh of the subject, wlierc it might he considered that some principles of estimation would apply, for tho jiu'y ai'e allowed a much greater lati- tude than in questions of contract. However it may be laid down as generally true that — Rule 21. — The damages in respect ol in- juries to pro})erty are to be estimated u])<>ii the basis <>f bciiio- c'omi)ensatory for tlie deterioration in value caused by the ^^Tono■ful act of the defendant, and for all natural and necessary expenses incurred by reason of sucli act. (1) Injurt/ to ITorsc. Thus in tho case of in- jiu-y to a horse through tho defendant's negligence ; it has been held, that tho measure of damages is the keep of the horse at the farrier's, the amount of tho D 5 '58 TORTS IN GENERAL. farrier's bill, and tlie difierence between the prior and subsequent value of tbe borse {Jones v. Boijce, 1 Stark. 493 ; and see Wilson v. Newport Dock Co., L. JR,., 1 Ex. 187). (2) Conversion. So in tbe conversion of cbat- tels, tbe full market value of tbe cbattel at tbe date of tbe conversion is, in the absence of sjwcial damage, tbe true measure. Tbus, wbere tbe plaintiff pur- cbased cbampagne, lying at tbe defendant's wbarf, at fourteen shillings per dozen, and resold it at twenty-four shillings to tbe captain of a ship about to leave England, and the defendants wrongfully re- fused to deliver up tbe wine, and converted it to their own use, it was held, in an action of trover, that although tbe defendants bad no knowledge of tbe sale, or of the purposes for which the plaintiff re- quired delivery of the cbampagne, yet the plaintiff was entitled as damages to tbe price at which be bad sold it {France v. Gandef, L. JR., 6 Q. B. 199). (3) Trespass. So wbere coal has been taken by working into the mine of an adjoining ovmer, tbe trespasser will be treated tis tbe purchaser at the pit's mouth, and must pay tbe market value of the coal at the pit's mouth, less the actual disbursements (not including any profit or trade allowances) for severing and bringing it to bank, so as to place tbe owner in tbe same position as if be bad himself severed and raised the coal {In re United Merthyr Coll. Co., L. B., 15 Eq. 46). (4) Infringement of Patent. And so the patentee MEAsrUK ol' DAMAGKS IN ACTIONS OF TOUT. 59 of an invention npplicablo to part of a machine, wlio is himself a manufacturer, but who has been in the habit of licensing the use of his invention by other manufacturers on payment of a fixed royalty for each machine, can only claim from an infringer of his patent the ordinary royalty, and cannot claim in addition a manufacturing profit {Pctui v. JacJ:, L. 7i., 5 Eq. 81). Consequential Damages. Ri:li: 2'2. — Wlicrc any .special daiiia^-cs have naturally, and in sequence, resulted from tlio tort, tliey may be recovered. The difficidty in cases under this ride, is to deter- mine what damages are the nafiiral result, and what are too remote. (1) Lous of Business. If, through the wilful or negligent conduct of another, one should receive corporal iujmy, whereby he is pai-tially or totally prevented from attending to his business, the pecu- niary loss suffered in consequence may bo recovered. The most usual instances of this are to be found in actions against railway companies. (2) Medical Expenses. So, the medical expenses incurred may bo recovered if they form a legal debt owing from the plaiutiif to the physician, but not otherwise {Dixon v. Uei/^ 1 Stark. 28U ; and see Spark v. Ueshp, 28 L. J., Q. B. 197). (3) Loss of Properfi/. The plaintiff was travelling BO TORTS IN GENERAL. with other passengers in the carriage of a railway com- pany, and on the tickets being collected, there was found to be a ticket short, and the plaintiff was wrongly charged by the collector with being the defaulter, and on his refusing to pay, was removed by the officers of the company, without imnecessary violence ; it was held, in an action for assault, that the loss of a pair of race-glasses, which the plaintiff had left behind him in the carriage when he was removed, and which were not proved to have come into the possession of any of the company's servants, was not such a natural consequence of the assault as to be recoverable {Glover V. X. 8f S. W. R. Co., L. R., 3 Q. B. 25; and see also as to remoteness Sanders v. Stuart, L. R., 1 a p. D. 326). (4) Lord CaniphelVs Act. The damages awarded under Lord Campbell's Act to the relatives of per- sons killed through the default of the defendant should be calculated in reference to a reasonable ex- pectation of pecuniary benefit, as of right or other- wise, from the continuance of the life of the deceased {FranMhi v. ^S'. E. R. Co., 3 //. 8^^ N. 211). The jury cannot, in such cases, take into consi- deration the grief, mourning and funeral expenses to which the siu'vivors were put. And this seems reasonable, for in the ordinary course of nature the deceased would have died sooner or later, and the grief, mourning and funeral expenses would have had to be borne then, if not at the time they were borne {Blake v. Mid. R. Co., 21 L. J., Q. B. 233 ; JDalton V. S. E. R. Co., 27 L. J., C. P. 227). MEASLKK OF DAMAGES IN ACIIONS OF IDUT. (tl (o) IiiJHrij io Tniilc. So, ill ostiiuatingtliccliini.'if^os in an action for lihollin}^ a tmclosnian, tho jury shoukl take into consideration tho prospective injury ■which will prohaT)ly happen to his trade in conse- quence of tlio defamation {(lrv landlord might recover in an action against tho tenant the costs and damages to which he had been put in the action against him ; for they were the uatiu-al and ordinary result of the defendant's wrong {Brd/nfr// v. C/icifcrto)), 2 C. Ji., X. S. (iOo; and see Ti»'/"/ v. Jir//, 11 Jf. ^- ]r. 228). Certain prospective Damages recoverable. Sub-nde. — TZ/c junj .should talr info their con-siilrrn- t ion, in an-sefifiint/ tho datnayrx, the prohahh' future injur ij that irill result to the plaintiff from the act of the de- fendant; for the daniayes irhen ijicen are taken to in- elude all the hurtful eonsequeneex arininy out of the tcron(jful aet, unknown as uell as knoirn (Ad. 58G — 091 ; and see Lamb v. Walker, L. li., 3 Q. li. D. ;i8!)). Best, C. J. (in liiehard-son v. Mellish, 2 Biny. 240), .says, " "When the cause of action is complete, when the whole thing has but one neck, and that neck ha.s been cut off by one act of the defendant, it would be mischievous to say — it woidd be increasing liti- gation to say — 'you shall not have all you arr entitled to in yoiu' first action, but you shall br driven to a second, third, or foui-th for tho n-covcry of yoiu- damages.' '' A corollary to this sub-inile is that several actions cannot be brought in respect of the same injury. Thei*efore where a bodily iujiuy 64 TORTS IN GENERAL. at first aj)peared slight, and small damages were awarded ; but subsequently it became a very serious injury: it was beld that another action would not lie, for the action having been once brought, all damages arising out of the wrong were satisfied by the award in the action {Fetter v. Beale, 1 Ld. Raym. 339 — 692). Continuing Torts. Exception . — But if the^ tort be a continuing tort-, the principle does not apply ; for here a fresh cause of action arises dc die in diem. Thus in a continuing trespass, or nuisance, if the defendant does not cease to commit the trespass, or nuisance, after the first action, he may be sued until he does. Aggravation and Mitigation. Rule 23. — The jury may look into all the circum- stances, and at the conduct of both parties, and see where the blame is, and what ought to be the compensation according to the way the parties have conducted themselves (Davis V. N. W. 7?. Co., 7 W. E. 105). (1) Seduction under Guine of Courts/zip. In seduc- tion, if the defendant have committed the offence' under the guise of honourable courtship, that is ground for aggravating the damages; not, how- ever, on account of the breach of contract, for that is a separate offence, and against a different person. MEASllU: OF DAM.VGKS IN AC'lIONS Ul' TOUT. V)0 " Tho juiy (lid rip:lit in a case wlioro it was provod that tlio sediuer had niade his advautvs iiiKlor tho guiso of matrimony, in giving liberal damages ; and if tho party seduced brings an action for breach of jtromiso of marriage, so much the better. If nuich greater damages had been given, we shoiUd not have been dissatisfied tliercwitli, iho pLiintilT having received tliis insidt ui liis own house, wliero he liad civilly treated the defendant, and peraiitted him to pay his adtb'esses to his daugliter" (Wilmot, C. J., in Tnllhhje v. Wade, :} Wils. 18). (2) On the other hand, the previous loose or im- moral character of the party seduced, is ground for mitigation. The using of immodest language for instance, or submitting herself to tho defendant under circumstances of extreme indelicacy {Ail. 000). (3) Pleii of Truth in Drfumdtion. In actions for defamation, a plea of truth is matter of aggravation ludess proved, and may be taken into consideration by the jiu-y in estimating tho damages [Wnncick v. FoHlkc!^, 12 M. ^- W. 508). (4) Plaintiff'^ s Bad ClifwaHir in Drfamntion. Evi- dence of the plaintiff's (jcncval bad chnracivr has been allowed in mitigation of damages in cases of slander {Jones v. Sfcrrns, 11 J'r. 2()0) ; but it is considered very doubtful wliether this case woidd be followed at the present day. (5) PlaintiJ^a irri/afin;/ Conduct in Difaination. In Kelli/ V. ' Shnrlock {£. Jl, 1 Q. B. G86), the action was brought in respect of a series of gross 66 TORTS IN GENERAL. and offensive libels contained in tlie defendant's newspaper. It appeared, however, tliat the first libel originated in the plaintiff having preached, and pub- lished in the local papers, two sermons reflecting on the magistrates for having appointed a Eoman Catholic chaplain to the borough gaol, and on the town council for having elected a Jew as their mayor, and the plaintiff had, soon after the libels had com- menced, alluded, in a letter to another paper, to the defendant's paper as "the dregs of provincial joui'- nalism," and he had also delivered from the pulpit, and published, a statement to the effect that some of his opponents had been guilty of subornation of perjmy in relation to a charge of assault of which the plaintiff had been convicted. The jmy ha\dug returned a verdict for a farthing damages, the court refused to interfere with the verdict on the ground of its inadequacy, intimating that although on account of the grossness and repetition of the libels the verdict might well have been for larger damages, yet it was a question for the jmy, taking the plaintiff's own conduct into consideration, what amoimt of damages he was entitled to, and that the com-t ought not to interfere. (6) Impn'.sou incut on Fake CJiarge of Felony. In false imprisonment and assault, if the imprisonment has been upon a false charge of felony, where no felony has been committed, or no reasonable ground for suspecting the plaintiff, this will be matter of aggravation [Ad, 585). (7) Batteyy in consequence of Insult. But if an MEASIHE OK DAMA(iES IX ACIIONS OF TOUT. (»7 assault and battery have taken jilaeo in oonsccjiu-iicc of insulting language on tlio part of the plaintiff, this will be ground for mitigating the damages {Thomm v. Poice//, 7 C. c^ P. S()7). (8) Insolent Trisjxi.ss. AV^licro a poi"S()n trespassed upon the plaintiff's land, and defied him, and was otherwise very insolent, and the jury returned a verdict for oOO/. damages, the court refused to interfere, Chief Justice Gibbs saying, "Suppose a gentleman has a paved walk before his window, and a man inti'udos, and walks up and do^\'n before the window, and remains there after he has been told to go away, and looks in while the owner is at dinner, is the trespasser to be permitted to say, ' Here is a halfpenny for you, which is tlio full extent of all the mischief I have done ' Y "Would that be a compen- sation:'" (in Merest v. Ilarn ;/, ■') Tfiniif. 441). (9) Wroufjiful tSeiziiir. iVnd so where the de- fendant \\Tongfully seizes anotlier's chattels, and exercises dominion over them ; substantial damages will be awarded for the invasion of the right of ownership {Bai/lia v. Fi-s/trr, 7 Biinj. lo-i). (10) CdKfiiiKj Suspicion of Iiisolvittcij. Ai\(\ where the defendant took the plaintiff's goods under a false claim, whereby certain jiersons concluded that the plaintiff was insolvent, and that the goods had been seized under an execution, it was held that exem- plary damages might bo given {lircircr v. Deir, 11 M. Sf W. G29). (11) lleturn of Goods. But where the defen- 68 . TORTS IX GENERAL. dant has returned the goods in the course of the action, and thej have been received unconditionally by the plaintiff, merely nominal damages will be re- coverable ; unless, the goods have been injured, or some special damage has been suffered {Ad. 363). Where Plaintiff is only Bailee. Rule 24. — Wliere the plaintiff is merely the possessory, hut not the real o^\aier, he may, as against a tliii-d party, recover the entire value of the prop)erty; l^ut as against the real o^vner, only the value of his limited interest [Hey don and SniiWs case J 13 Co. Q^). . And it seems therefore, that a jus terfii is not provable in reduction of damages, unless indeed the actual possession of the whole of the property was not in the plaintiff ; as where the owner of one six- teenth of a ship attempted to get damages for the whole value of it, he was not allowed to do so {DocJc- ■ivray v. Dickenson, Shin. 640). Presumption of Damage. Rule 25. — If a person who has wrongfully converted '^xo- perty, refuses to produce it, it shall be pre- MEASURE OF D.VMAfiKS IN ACTIONS OF TolM. Gl> sun 10(1 as a^-aiiist liiiii to bo of tho host doscription [Aniior// v. Dclamiric^ 1 /S'y/i. L. Ca. ;n:>). (1) Thus in the above case, ^vlloro a jowellor wlio had ■wrongfully convci'tod a jewel wliieh had been shown to him, and had retiunied tho socket only, refused to produce it in order that its value might be ascertained, the jury were directed to assess the damages upon tho presimiptiou that the jewel was of the finest water, and of a size to fit the socket ; for Oiiiiiht j)nr.sii»iiiiitiir roiifnt Kpolidforoin. (2) So where a diamond necklace was taken awa}-, and part of it traced to tlie defendant, it was held that tlie jury might infer that tlie whole thing had come into his hands {Mortimer v. CrS'. 165). Thus describing another as an infernal villain is a disparaging statement sufficient to maintain an OF DEFAMATION. 85 action {Bell v. Stone, 1 B. <^- P. 331) ; and so is an imputation of insanity {Monjan v. Lingden, H L. 7'., N. S. 800) ; or insolvency, or impccuniousnoss {Met. Saloon Omnibus Co. v. ILiirkinx, 28 L. J., Ejt. 201 ; Eaton V. Johns, 1 Doicl.y N. S. 012) ; or of gross mis- conduct {Clement v. Chivis, 9 i?. 4" C'. 17C) ; or of cheating at dice {Grevillc v. Chapman, 5 Q. B. 744 ; or of ingratitude {Co.r v. Lee, L. R., 4 ^r. 284). So reflections on the professional and commercial conduct of anotlier are defamatory' ; as to say of a physician, that he is a quack ; and oven to advertise pills as prepared by him (contrary to the fact) would proLahly be a Hbel {Clarh v. Freennni, 11 Jiera-. 117). So, also, calling a newspaper proprietor " a libellous journalist," is defamatory ( Wahelei/ v. Cooke, 4 E.r. /518). The imputation must however in such cases be a charge of professional mixeondiict, and not a mere imputation of imworthy liabits, or bad taste {Clai/ v. noberfs, 9 Jar., N. S. 580). III. — Construction of Words. Sub-rule 2. — ll'onh utfenil mu.st be eon.strnid in the sense which hearers of common and reasonable understandin(j uould ascribe to them, eren though particular individuals] better informed on the matter alluded to, might form a different Judgment on the subject (per Pollock, C. B., in Ilaukinson v. 7?/%, IG M. ^- IF. 442). Thus words, which in themselves are innocent and inoffensive, may become libellous or slanderuus wlien used in an ii'onical manner, and in such a way that no reasonable person coidd be expected to construe them in their ordinary sense. 86 PARTICULAR TORTS. lY. — Publication. Both written and spoken defamation must have been published in order to constitute an actionable wrong. Sub-rule 3. — The making hwuii the Vibcl or slander to any person other than the object of such libel or slander is puMication in its legal sense. " Though, in common parlance, that word may be confined in its meaning to making the contents known to the public, yet its meaning is not so limited in law. The making of it known to an individual only is indisputably in law a publishing" {Hex v. Burdett, 4:JB.^ Aid. 143). In civil actions it is immaterial — so far as the right to recover so])ie damages is concerned — whether the libel was published intentionally, or only by accident, or through the negligence of the defendant {Fox V. Broderick, 14 Ir. C. L. Rep. 453; see also Earrimi v. Bush, 5 E. 4* B. 344). It is for the jury to find whether the facts, on which it is endeavoured to prove publication, are true; but for the court to decide whether those facts constitute a publication. Y. — Malice. Express or implied malice must exist in actions of defamation, but generally it is implied. Malice, in the legal acceptation of the word, is not confined to personal spite against individuals, but consists in a conscious violation of the law to the prejudice of another (per Campbell, C. J., 9 CI. 8f F. 321). Sub-rule 4. — In an action for defamation, the exis- tencc of express malice is only a matter for inquiry, u-hen the words complained of iccre spohen on a Just if- OF DEFAMATION. (ihlc occd.sion [Jloojhr v. (inixvotf, 2 liiny. N. C. loT ; Watkiii V. 7/c///, mipra; Spcill v, JLiii/c, L. Ji., 3 Ex. 232). The meaning of this is, that where a statement, ■writing, or picture, is false ami defamatory, and was not published upon such a lawful occasion as to rebut the presumption of malice, the law •will conclude it to be malicious {lidijlla v. Lainrnn; 11 A. ^y E. 920). There are, however, cases in which it is necessary to show express malice on the part of the defendant, that is to say: — (1) AVhero the eommmiication is said to be privileged (and with these I shall have to deal at greater length subsequently); and (2) in slander of title, that is to say, where the slander ■ consists in falsely impeaching a man's right to land or goods (inrii v. ird/d, L. /?., 4 Q. P.. 730). VI. — Damag-es. In actions of slander (save in the cases hereinafter mentioned), but not of libel, it is necessary to prove damages, and unless the plaintiff can do so he cannot succeed. Sub-rule 5. — In oval drfaniafion, as in of/icr (orfSy ichcrv ihttnagcs niiaf be proved, the Iohh roniplained of must he such as " mif//if fair/// and reasonabhj hare been anticipated and feared trould folloir from the speahimj of the irords'' {L;/nrh v. Knifjht, f) JL of L. C. 517). The rule laid down by Lord Elleuborough on this point was, that the special damage must be the legal and natm-al consequence of the words spoken, and, consequently, that it is not sullicient to sustain an action of slander to prove a mere wrongful act of a third party induced by the slander, such as that he had 88 PARTICULAR TORTS. dismissed tlie plaintiff from his employment, tefore \ the end of the term for which they had contracted ) [Vicars v. WilcocJcs, 2 Sm. L. C. 534). The decision-^ in this case seems to have been arrived at on two grounds; (1) that the plaintiff having been unlaw- fully dismissed had a right of action against his master, and that, therefore, he ought not to be allowed a second action against the slanderer, lest he should recover double damages ; and (2) that the act complained of being a wrongful act could not possibly be considered the kgnl and natui^al consequence of the defamation. The first of these dicta has now ceased to be law, and the cases of Green v. Button (2 C. M. 8f Rij. 171), and, more pai-ticularly, Lumley v. Gije;" (2 E. Sf B. 21^) have completely overruled such an objection. In respect to the rule that the damagesV must be the legal and natiu-al consequence of the / slander, the judgment of Lord Wensleydale, in Lynch [ Y. Knight (.sw^x), throws considerable doubt thereon, f and should be carefully read. His lordship thus V proceeds: — "I am much influenced by the able reasoning of Mr. Justice Christian (one of the judges in the court below). I strongly incline to agree with him, that to make the words actionable by reason of special damage, the consequence must be such as, taking human nature as it is, with its infir- mities, and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the spealdng of the words, not what would reasonably follow, as we might think ought to follow. In the case of Vicars v. Wikoclis, I must say that OF DKFAMATIDN'. 80 the rules Liid down by I^urd Kllenboroup^li nro too restrictive. Tliat wliicli I have tjikcn from ^[r. Justice Christian seems to me, I own, correct. I cannot agree that the special damage must bo the natural and legal eonsequonee of the words, if true. I^ord Ellenborough puts an absurd case, that a plaintiii" could recover damages for being tlirowii into a horse- pond as a consecpieueo of words spoken; but, I own, I can conceive that, when the public mind was greatly excited on the subject of some base and disgraceful crime, an accusation of it to an assembled mob might, under particular circumstances, very natui'ally pro- duce that residt, and a compensation might be given for an act occurring as a consequence of an accusation of that crime." Ej^ampha of Acfiuil DamiKjo. — (1) Words were spoken imputing unchastity to a woman, and by reason thereof she was excluded from a private society and congregation of a sect of Protestant Dissentere, of which she had been a member, and was prevented from obtaining a ceitificate, without which she could not become a member of any other society of the same nature: Held, that such a result was not such special damage as would render the words actionable {Robci-h v. Roberts, 3:i /.. J., Q. B. 249). (2) Action by husband and wife for slander, im- puting incontinency to the wife, alleging tliat, by reason thereof the wife became ill and unable to attend to her necessary affairs and business, and that the husband was put to expense in endeavouring to cure her: Held, that the declaration showed no 90 PARTICULAR TORTS. cause of action {Allsopp v. AUsojjp, 5 Hiwla. ^' Norm. 534). (3) Wliere tlie wife, in consequence of words im- puting want of chastity to lier, ceased to receive the hospitality of divers friends, and especiall}^ of her hushand, it was held that such a loss was the reasonable and natural consequence of such slander {Dai'ies v. Solomon, L. H., 7 Q. B. 112). There is a custom in the City of London courts enabling a woman whose chastity has been slandered, to maintain an action, though she can prove no special damage (3 Steph. Com. 379). Imputation of Crime, Unfitness for Society^ and Misconduct in Business. There are certain exceptions to the rule that verbal slander must have caused actual damage in order to be actionable. In fact some slanders import such defamation as must be naturally prejudicial, and therefore in such cases the law presumes a damnum. Excejition (1). A false oral imputation made^ against another, of the commission of an indictable offence, is a sufficient damnum of itself {Rotcdiff v. Edmomh, 7 M. ^ JF. 12). Thus the words " You are a rogue, and I wiU prove you a rogue, for you forged my name," are actionable {Jones V. Heme, 2 JFil-s. 89). And it is immaterial that the charge was made at a time when it could not cause any criminal proceedings to be instituted. Thus the words " You are guilty " [innuendo of the OK DKF.VMATION. I'l murdur of 1).] are, after tUo verdict of not guilty, a Bufficieut charge of murder to support an action {Pcakc V. Ohlliam, 2 W. BL DOO). 13ut if words charging a criiuo are accompanied by an express aUusion to a transaction ■which merely amounts to a civil injury, as broach of trust or contract, they are not actionable (per Ellenborough in Tliompsoa V. Banu(n/, 1 Ctnnp. 48; and per Kenyou, Christ to V. Coicell, Pcahe, 4). The allegation, too, must be a direct charge of crime. Thus saying of another, that he had foi-sworn himself, is not actionable, without showing that the words had reference to some judicial inquiry {Holt v. Scholcjhld, G T. li. 691). Exception (2). False words tending to cause ex- clusion from society are actionable per se. Tims to allege the prcncnt possession of an infec- tious tlisease is actionable, but a charge of past infec- tion is not; for it shows no present imfitness for society (see Carshihc v. Mcppliilruni, 2 T. 1{. 47'"i; Bhodnorth v. Gray, 7 M. ^- G. 334). Except i(ni (3). Words imputing to a man miscon- duct in, or want of some necessaiy qualification for, his office or trade, are actionable per se; although the office or trade is not one of which the court can take judicial notice {Fonhjrr v. Neirroinliy L. li., 2 Ex. 327). Thus words imputing tlnmkenness to a master mariner whilst in command of a ship at sea are actionable per se {Inrin v. Brnudtrood^ 2 JI. ^y C. 960; 33 L. J.,F.r.2o7). 92 PARTICULAR TORTS. So where a clergyman is beneficed or holds some ecclesiastical office, a charge of incontinence is ac- tionable ; but it is not so if he holds no ecclesiastical office {Galhcaij v. MarshaU, 23 L. J., Ex. 78). So to say of a surgeon "he is a bad character; none of the men here will meet him," is actionable {Soufhce V. Denning, 17 L. J., Ex. 151; 1 Ex. 196). Or of an attorney that " he deserves to be struck off the roll" {PJiiUips v. Jansen, 2 Esi). 624). But it is not ground for an action to say " he has de- frauded his creditors, and been horsewhipped off the course at Doneaster," because this has no refer- ence to his profession. . Repeating Slander. Rule 2. — AVlienever an action will lie for slander or libel, it is of no consequence that tlie defendant was not the originator, but merely a repeater, or printer, and publisher of it; and if tlie damage arise simply from the re23etition, the originator will not be liable [ParJcins v. Scott ^ 1 Hurl cV Colt. 153 ; Watkin v. Hall, L. R., 3 Q. B. 39G; 3IcPhersonY. Daniels, 10 B. ^^ C. 273); except (1) where tiie originator had authorized the repetition [Kcndillon v. Malthj, Car. ^ M. 402) ; and (2) where the words are spoken to a person under a moral duty or obligation to communicate them to a third OF DKFAMATION. f).'? {Dcmi V. Unwlh'D, K', L. 7'., .V. >V., (). /;. 2G.'i). (1) In that case, (Jockbuni, C. J., observes, ""Wlioro an actual duty is east upon the person to whom the slander is uttered to communicate what he has heard to some third person, as wlien a eommunioation is made to a husband, such as, if true, would render the person the subject of it imfit to associate with liis wife and daughtoi*s, the slanderer cannot excuse himself by saying, ' True, I t(jld the husband, but I never intended that he should caiTy the matter to his wife.' In such case the connnunicator is privileged, and an exception to the rule to which I have referred; and the originator of the slander, and not the bearer of it, is responsible for the consequences." The reason of this rule is that an imauthoiized repetition of words spoken is not the necessary result or consequence of the original utterance of such words. (2) But where A. slandered 13. in C.'s hearing, and C. without authority repeated the slander to D., per quod D. refused to trust 13. : it was held that no action lay against A., the original utterer, as the damage was the result of C.'s unauthori;5ed repetition and not of the original statement {Ward v. TF^r/.-v, 4 M. ^- P. 808). (-i) Pri)iti)uj Slroidrr. So the printing and pub- lishing by a third pai-ty of oral slander (not per se actionable), renders the jierson wh*3 prints, or writes and publishes the slander, and all aiding or 94 PARTICULAR TOUTS. assisting liini, liable to an action, althougli the origi- nator, who merely spoke the slander, ^ill not be liable {McGregor v. Thurdfes, 2> B. 8^ C. 35). (4) Upon this principle the publisher, as well as the author of a libel, is liable ; and the former cannot exonerate himself by naming the latter, for " of what use is it to send the name of the author with a libel that is to pass into a part of the country where he is entirely unknown ? The name of the author of a statement will not inform those who do not know his character whether he is a person entitled to credit for veracity or not "(per Best, J., Creapujmj v. Wel- lesley, 5 Binrj. 403). Newspaper Proprietors. Sub-rule 1. — In an action for libel againHt the proprietor or editor of any newspaper or other periodical^ the defendant may plead that the libel was inserted mthoxd medice and uithont gross negligence; and that (d the earliest subsequent opportunity he inserted in such or some other p)uhlication a full apology; or, if such puhli- cation was published at intervals exceeding a month, thfd lie offered to puhlish such apology in any pxqyer the plcdntiff might name. And iq^n fling such plea, the defendant may pay a sum into court by nay of amends (6 & 7 Yict. c. 96, s. 2). Privileged Commtinication. Rule 3. — Wliere a conimuiiication is made bond fide vi\}0\\ any subject-matter in which the party I I OK DKFAMVTION. ft."i coiniiuuiicaliii;^- lias an Iiit(>r(»st, or in refer- ence to wliicli lio lias a dut}', either puldie, or j)rivate, either le«;al, moral, or social, such communiciition, it' made to a person havin<;" a corresponding- interest or dut}', rebuts the inference of malice, and is privileged. When .such is the case the onus of provinn malice is thrown upon llie plaintiff (Ad, on Torts, 770 ; Harrison y. JJus//, 5 K cS' B. HU; Wrh/ht v. Woodyate, 2 a, 31. ^y Ji. 57^ ; ."^omcrvillc v. Ilau'/cius, 10 C. D. 58.'^ ; Zafvkss v. Am/lo- Egijptian Cotton Co., L. A'., \ Q. B. 2r>'i ; >S>/// V. Maulc, L. /i., -i Ex. 232 ; Daukins v. Lord Pmdcf, L. n., ') Q. B. 04 ; Dxrics v. S/irad, L. Ji., Q. B. G08 ; llcmiyxid v. ILirrisou, L. 11., 7 C. P. 006; Lauf/hton v. Bishop of Sodor and Man, ihid. 008; Uarl v. Cuwpach, L. /;., 4 l\ C. 4:}0; Kvll/j v. Tinlin;/, L. /,'., 1 il II. O'JO; Didceson v. Ililliard, L. 11., I> Ex. 79). This nile •woultl seem to apply even . when tho person to whom the communication is made has not, in fact, any corresponding^ interest or dnty, if tho plaintilF honestly thought ho had, and there were good and reasonable grounds for hira so to tliink {llarrixoii v. Bnxh^ .supra) . AVherc in an action for libel tho defendant insists that tho publication is privileged, it is for tho judge to rule whether the occasion creates a privilege. If 96 PARTICULAR TORTS. the occasion creates sucli privilege, but there is evi- dence of express malice, either from extrinsic circum- stances or from the language of the libel itself, the question of express malice should be left to the jury {Cook V. Wildes, 5 E. S^ B. 328). (1) PaH'tamentarii Proccediufjs. Sj)eeches in par- , liament are privileged {Stockdak v. Hansard, d A. 4* E. 1) ; and a faithful report in a public news- / paper of a debate in either House of Parliament, con- taining matter disparaging to the character of an individual which had been spoken in the course of the debate, is not actionable at the suit of the person whose character has been called in question {Wason V. Waltc)', L. R., 4 Q. B. 73). (2) Judicial Proceedings. Statements of a judge acting judicially, whether relevant or not, are absolutely privileged {Scott v. Stans/ield, L. P., 3 Ex. 220) ; but those of coimsel only if relevant and according to instructions. But fair comments on the opponent's case are allowable {Hodgson v. Scarlett, 1 B. Sf AI. 232). Attorneys acting as ad- vocates have a like privilege {Mackaij v. Ford, 29 L. J., Ex. 404). Statements of witnesses can never be the subject of an action {Dawkins v. Lord Rokcshij, L. P., 8 Q. B. 2G1). If false, the remedy is by in- dictment {Henderson v. Broomhead, 28 L. J., Ex. 360). Fair reports of trials are also privileged', {Leicis V. Lev//, 27 L. J., Q. B. 282) ; but the repori of an application to a justice not sitting judicially is , not privileged. An apphcation to a magistrate for advice, for instance, is not privileged {McGregor v. T/ncaites,SB.8f C. 24). OK DKKAM VTION. 07 . ('3) Coiifiilcitddl Adcirr. So advice glvou in oii- fidenco at the request of another, and for his pro- tection, is privilofi;(>(l ; and it sooms that the prosenoo of a third party makes no diit'erenee {Tdijlor v. IIku- klm, 10 Q. B. 'M)X ; Maul,;/ v. Witt, '2o L. J., C. P. :394; 18 C. li. 544) ; but it seonLs doubt fid whotlier a vohmtary statement is equally privileged (see Cox- head V. Iiic/i(infs, 15 L. J"., C. P. i27S ; and Fn/rr v. Kinnci'Hlei/, .'Vi L. ,/., C. P. 90). Thus the character of a servant given to a person requesting it, is privileged {(idrdinvr v. S/odr, LS L. -/., Q. ]i. ;]l;] ; Paftlson v. Jourx, S B. ^ G. 578). Tlie character of a candidate for an ofRce, given to one of his canvassers, "was held to bo privileged {Coirks V. Pott><, 34 L. J., Q. B. 247). But imputations cirrulatod froc^ly against another in or E.r. 015). The unnecessary transmission by a post ollice telegram of libellous matter, which would have been privileged if sent by letter, avoids the prinlege {Williamson v. Freer, L. P., 9 C. P. 393). (4) Criticism. Lastly: Fail' and jiLst criticisms of literary publications and works of art are privi- leged, provided the private character of the author or artist is not attacked {McLeod v. iniate/i/, 3 Car. ^• P. 311; Carr \. Hood, 1 Camp. 355; Thompson v. Shackell, J/". ^ M. 187). Tradesmen's advertisements are witliin the mean- u. V 98 PARTICILAR TORTS. ing of literary publications {Paris v. Lev//, 30 L. J., a p. 1). So, too, fair criticism is allowed upon the public life of public men, or men filling public offices ; sucb as the itcpnduct of public worship by clergymen {Kelly V. Tinling, L. P., 1 Q. B. 699) : provided such criticism does not touch upon their private lives {Gathercolc v. Mlall, 15 M. 4- W. 319). Limitation. Rule 4. — All actions for oral slander must l^e commenced within two years next after the cause of action arose, and all actions for libel within six years. Of com'se this rule is subject to the general ones particularly set out in the first part of this work. It may be mentioned that where the tort consists of the actual damage caused by an oral slander, the period begins to rim from the date of the damage, and not that of the slander {Saunders v. Pd/cards, 1 >S'/(/. 95). ( ou ) CIIArTER II. Of Maliciois Puosecution. Ax action may bo luaintaiucd for maliciou.sly insti- tuting^ criminal proceedings against another [Chmrliill V. Siygcrs, 3 Ell. i^ lil. 1)37), or fi, 1 T. li. 044). In Ta>//or v. Wil/iatus {(] nhi;/. 180), Tindal, C. J., remarks, "Malice alone is not sufficient, because a person actuated by the plainest ' malice may, nevertheless, have a justifiable reason \ for prosecution." The existence of reasonable and probable cause is a question of law for the judge, tlie jury having ascertained the facts, if the facts are in dispute (per KeUy, C. 13., Pcrri/ntan v, Lisfrr, L. R.^ 3 Ex. 202). AVhat is reasonable and probable cause " is a mere question of opinion depending entii'ely \ipon the view wliich the judges may happen to take of the circumstances in each particular case" (per Kelly, ('. 13., in Pcrri/iiian v. Lister, utip.). "There mu.st be a reasonable cause, such as wouM operate on the mind 102 PARTICULAR TORTS. of a discreet man; tliere must be also a probable cause, such as would operate on tbe mind of a reason- able man ; at all events, sucb as would operate on the mind of the party making the charge, otherwise there is no probable cause for him" {Broad y. Ham, 5 Bing. N. C. 725). CoimseVs Opinion. A man cannot shield him- self from the results of a malicious prosecution, on the ground that it was instituted under the advice of counsel. " It would be a most pernicious practice," remarks Heath, J., "if we were to introduce the j^rinciple that a man, by obtaining the opinion of a coimsel, by applying to a weak man or an ignorant man, might shelter his malice in bringing an un- founded prosecution" {6-T(tiiiitoii, 283). III. — The former Proceedings must have been determined in the Plaintiff's favour. It is necessary to show that the proceeding alleged to have been instituted maliciously, and without reason- able or probable cause, has terminated in favour of the plaintiff, if, from its nature, it be capable of such a termination {Baseb// v. Matheics and Wife, L. M., 2 a P. 684). This rule applies equally to the case where the plaintiff has been summarily convicted under a statute Avhich gives no power of appeal {Ba-sch// v. Mathews, siq}.). IV. — Damage. "In order to support an action for malicious prosecution or suit, it is necessary to show some damage resulting to the present plaintiff from OF MALKIOIS rilOSELCllON. 103 tbe former ]tro(f('iliii^ agiiinst liim. This may bo either tlie damiigo to a iiuurs famo, jus if tlitj matter he is accused of be scandalous, or wlicre ho has been put iu danger to lose his life, or limb, or liberty; or damage to liis property, as where he is obliged to spend money in necessary charges to acquit liimself of the crime of which lie is accused" {Maijur's Tiraiise on DdiiKKjcs^ J). 310). In tliis case, as in slander, the damages must be the reasonable and probable cause of the malicious prose- cution, and not too remote. Non-liability of Complainant for Acts of Magistrate. Kii^k G. — \i ;i jxtsou Ixmn foU: inakcs ii conipluiiit to a nuioistrato, and tlio magistrate erroneously treats the matter as a felony, wlien it is in reality only a civil iiijurv, and issues his Avarrant for the ajjjtn'- liension of the jdaintilf, the defeudaut ^vllo eomplained t(» the maji^istrate is not respon- sible for the mao-istrate's error ( IFy^/// v. W/tifc, 20 L. ./., Ex. VX\). P,ut if there he no rea- sonable and probable eause for suspi^ctino; tliat a felony has been committed, and the defendant luakes a specifie. charge of felony, it is otherwise. Thus, if one, without reasonable and probable cause, 104 rARTICULAR TORTS. causes a search warrant to issue against tlie plaintiff, he is liable to an action ; but if he merely goes before a magistrate and ho)tu fide puts before him reasonable grounds of suspicion, and the magistrate thereupon, in the exercise of his discretion, issues the warrant, no action lies [Cooper v. Booth, 3 Esj). 144). ( 105 ) CIIArTEPt III. Of False Imprisonment and Malk iol's Akhkst, What constitutes Imprisonment, IviLi: 7. — Where a total restraint for .some peri(jd, liowever short, is ])ut upon the liberty of another AWthoiit siiflicient le'., N. S. i')'2'i): not even tlnm> C. B. 120; Henderson v. Broomheud, 4 Jl. equally exempted from liability iu cases where he had acted malici(jusly, di.)es not (iceiii to have been decideiH)rted. Tliere the matter rests, but I confess I have little doubt, should the question ever arise, tliat. provided he aits within his jurisdic- tion, a ma>,'iHtnitc is no more aii>wcrable (by action, that is to Hay,) for a malicious act than is a jud>,'c of ii county court or of the High Court. In this opinion the leametl author alxjve cited seemfl to conciir. 112 PARTICULAR TORTS. Prima facie Jurisdiction. Sub-rule. — A judge of an inferior court haximj a prima facie jurisdiction over a matter is not responsible for a false imprisonment committed on the faith of such prima facie jurisdiction, if by reason of something of which he could have no means of hiowledge he realhj has no jurisdiction [Calder V. HalMt, 3 Moore, P. C. C. 28). Thus if through an erroneous statement of facts a person be arrested under process of an inferior court for a cause of action not accruing within its juris- diction, no action lies against the judge or officer of the court, but against the plaintiff only {Olliett v. Bessey, 2 W. Jones, 214). In general, however, where a court has jurisdic-^ tion, the person setting it in motion is not liable for a false imprisonment committed under its order, unless he set it in motion maliciously ; but where it has no jurisdiction the complainant will be liable, even though acting bond fide ( West v. Smalluvod, 3 M. ^ W. 421). Contempt of Court. Rule 10. — The supe- rior courts of law and equity have power to 2:)unisli by commitment for any insult offered to tliem, and any libel upon tliem, or any contemptuous or improper conduct committed- by any person with respect to them ; but inferior courts of record have power only to commit for contempts committed in the court. (1) During the pendency of a suit, the publisher FAi sK i.Mrnis()\>rF.Nr and maikiois Auur.si. 11;; of a newspaper cominits a rctntcinpt oi <<»urt if In- publishes extracts from the alHJavits with euniments upon them {Tic/4 fiornr v. Mosti/n^ L. 7i., 7 Eq. 50). (2) AVlnTe an indictment has been removed into the Court of (iueen's Bench, and a day ajipointed for trial, the liolding of public meeting, alleging that the defendant is not guilt}', and that there is a con- spiracy against him, and that he cannot have a fair trial, is a contempt of com*t (Oii.s/oic^s and Mnidllcifs ra.,r, llcij. v. C(i>\ PL Cr. 86). 114 PARTICULAR TORTS. Protection of Justices acting without Jurisdiction. Rule 12. — Where a justice acts in a matter mtliout any or beyond his jurisdiction, a person injured by any con^dc- tion or order issued by such justice in such matter cannot maintain an action in respect thereof until such conviction shall have been (juashed by the proper tril)imal in that behalf, nor for anything done under a warrant fol- lowed by a conviction or order, luitil such conviction be quashed, nor at all for any- thing done under a warrant for an indictable offence, if a summons had been previously served and not obeyed. (See 11 & 12 Vict, c. 44.) Constables executing the warrants of justices issued without jurisdiction are specially protected by 24 Greo. 2, c. 44, ss. 6, 8, from any action, unless they have refused for six days after written demand to produce the warrant. It may be also observed that, by sect. 9, a month's notice is required to be given before commencing an action against a justice for any act done in the exe- cution of his office; and by 11 & 12 Vict. c. 44, s. 11, if after such notice, and before the commence- ment of the action, the justice tender a simi of money in amends, then if the jury shall be of opinion that such sum is sufficient they shall give theh verdict for the defendant. A justice acting mahciously is en- FALSE nirUISONMKNT AM) M M.ir KMS AKin>l. 110 titled to notice and to teiulor uiufiids {Lxirn v. ratriih; l.j Q. n. -272). Malicious Arrest. This consists in wilfully putting the liiw in motion to effect tlio arrest of another without cause. Its occurrence, owing to the practical abolition of imprisonment for debt by the Debtors' Act, l.SG!), is now infrequent. Rule 1'). — Aii}- i)ers()ii iiuilicIou.sly causing the arrest of another is liable to an action. By a malicious act is not only meant a wicked and spitcfid act, but also a deliberately intentional wrong, although done without any actual spite or ill-feeling. (1) Therefore, if by a false statement or suppres- sion a man obtains the airest of another, he is liable to an action. (2) So a false affidavit whereby a judge's order is obtained for the ari'est of an absconding debtor, renders the deponent liable to the person arrested. Habeas Corpus. Such are the leading principles of law relating to deprivation of liberty ; it remains to notice a peculiar and unique remedy which the law affords in adtlition to that by action. I mean the writ of habeas eoii^us ad subjidendiun. This writ may be obtained upon motion to any of 116 PARTICULAR TORTS. the superior eouiis of law or equity, or to a judge when those courts are not sitting. Probable cause must be shown by the person moving that there is a wrongful detention, and if the court or judge thinks that there is reasonable ground for suspecting ille- gality the writ is granted. It is directed to the individual detaining the person in custody, and commands him to produce the body of the prisoner in court on a certain day, and there account for his detention, and to do and submit to whatsoever the court or judge shall order in the matter. If on the day mentioned the detainer can justify the detention, the prisoner is remitted to his custody. If not he is discharged, and may then have his remedy by action. The writ of habeas corpus existed at common law, but it has been more formally declared and defined by statutes, chief among which are 31 Car. 2, c. 2, and 6Q Geo. 3, c. 100. Limitation. Rule 14. — No action shall be brought for false imprisonment except within foiu' years next after the cause of action arose. It must be recollected that imprisonment is a con- tinuing tort, and therefore the period runs from the last day of the imprisonment, and not from the first. Exceptions. (1) Justices. — An action against a justice of the peace for anything done by him in the FALSE IMIMUSONMKNT AM) MAI.K lOlS AKUKST. 117 execution of liis ofTioo must lie commenoed within six calendiir niontlis next alter tlio coniniission of the m-i complained of (11 v^ 12 Vict. c. 44, s. 8). (2) Ct))i.\((ihJrH. — Various Acts for the appoint- ment and rcfjulatidu of pcjlico limit the period witliin which actions may Lo brought against them. Th'- following are the most important: 10 Geo. 4, c. 44, relating to the Metropolitan jiolicc, by sect. 41 enacts that all actions for anj^liing done in pursuance of the Act shall be (inter alia) r-ommcnccd witliin six calendar months, and that a month's AVTitten notice shall be given to them, and the same provision is extended to special constables and county policemen by 1 & 2 Will. 4, e. 41, and 2 it -'J Vict. c. 5):{, respectively. Borough constables are protected in a similar manner by 5 & G AVill. 4, c. 7G, s. ll-i; and sect. 70 of the same act enacts that men swoni as such shall not only within the borougli, but also within the county in which the same is situated, and in any county within seven miles of such borough, have all such powei-s and privileges, and be liable to all such duties and responsibilities, as any constable at the time of the passing of that act had or thereafter might have within his constablewick. Constables may also pay money into court. (See 11 & 12 Vict. c. 44, ss. J), 11.) All such actions against justices and constables must (by various acts) be laid in the county in which the trespass was conmiitted. 118 PARTICULAR TORTS. CHAPTEE lY. Of AssAt'LT AND Battery. Direct and Indirect bodily Injuries. Torts affecting the body are either the imraediate results of force put in motion by the defendant, or the in- direct results of TVTongful conduct on his part. In this chapter I shall speak of direct bodily injuries or trespasses. Causing Death. Dii-ect personal injuries caus- ing death are crimes of a most heinous nature. They rather come, therefore, under the ordinances of the criminal than of the civil law. Putting these aside, all other direct bodily injm-ies may be considered as either assaults or more or less aggravated forms of battery. Definition of Assault. An assault is an unsuc- cessful attempt to do harm to the person of another. Rule 15. — If one make an attempt, and have at the time of making such attempt a j^resent ability to do harm to tlie j^erson of another, although he actually do no harm, it is nevertheless an assault. OF ASSAll.T ANn ItAITFKY. 11!) (1) (Sucli, for iiistanco, is nu'imciiin; with a sti<'k a person within roach tlioroof, althongh no blow he struck {Il>wfy. Cohn; V\ C. B. 800). (2) But a niort' tin-cat is no assault, unless thero bo a present ability to caiTy it out. This was illustrated by l^ollock, C.B., in Cohbrf v. Ginj (4 Exrh. 744). "if," said that learned judg.-, " you direct a weapon, or if you raise yoiu- fist witliin those limits which give you tlie means of striking, that may be an assaidt ; but if you simply say, at such a distance as that at whicli you cannot commit an assaidt («'/), * I will commit an assaidt,' I think tliat is not an assaidt." (3) To constitute an assaidt tliere must be an attonpt. Therefore, if a man says tliat he would hit another were it not for something which withholds him, that is no assaidt, as there is no apparent attt-miit {Tnhn-rillc v. Sav(i(jr, 1 Mod. 3). (4) For the same reason shaking a stick in sport at another is not actionable (see Clirixtoplwrnou v. Bnir, II (I ]{. 477). Battery. Ivii.i: 1('>. — The least toiiclnii^i- of another's person lio!»tih'ly or ao^ainst liis will is a batter\' {RawUnys v. Till, :i J/. cS" IT. 28). This touching may be occasioned by u missile or any instrument set in motion by the defendant, as (a) Qucrj-— battery.^ ^Iw^h^ \^^a«i;r. 120 PARTICULAR TORTS. by throwing water over another [Eusscll v. Home, 8 ^. 8f E. 602), or spitting in liis face. In accordance ■witli the rule a battery must be involuntary ; there- fore a Toluntarily suffered beating is not actionable (Patteson, J., in C7/n'>;fo])//e)'so)i v. Brar, 11 Q. B. 477). Merely touching a person in order to engage his attention is, ho-wever, no battery {Coicard v. Bad- deUij, 28 L. J., Ex. 261). "Wounding' and Maiming". If the -violence be so severe as to wound, the damages will be greater than those awarded for a mere battery; so also if the hurt amount to a mayhem (that is, a deprivation of a member serviceable for defence in fight), but other- wise the same rules of law apply to these injuries as to ordinary batteries. Intention, liule 17. — An iujmy may be a trespass although unintentional, unless it were the result of inevitable accident ( Covell V. Laminc/, 1 Camjj. 477). (1) Thus where the defendant imintentionaUy up- set the plaintiff in his eaniage, it was held to be a trespass {Hopper v. Reeve, 7 Tauiif. 698). (2) Indeed an act which is of itself lawful may be a trespass if another suffers damage thereby, for every bodily injury is an invasion of a right and is actionable unless caused by unavoidable accident (in which case it may be said to be the act of no one), or by the negligence or malice of a thii-d party. I OF ASSAII.T AM) HAITKIIY. 12\ Thiis if a man assault mo, and in lifting up my stick to defend myself I hit another, an aetion lies against mo (per Blaekstono, J., in Scott v. S/trp/ifnt, 1> ir. lihi. .S!)4); and so in Wearer v. Ward, it was held that no man shall bo excused of a trespass, ex- cept it may bo judged utterly without his fault (J/oA, 134). Such being tho natiu-o of a battery, let us now consider when it is, and when not, a tort. Rule 18. — Every man lias an inherent rii^lit to innnunitv from interference with, or violence or injury to, his body at the hands of any other person. Except ions. (1) Sc//-Defener. — A battery is jus- tifiable if committed in self-defence. Such a plea is called a plea of son assault demesne. But to support it, the battery justified must have been committed in actual defence, and not aften\ards and ui mere reta- Hation {Cockro/t v. Smif/t, 11 3lo(/. 4-i). Neither does every common battery excuse a mayhem. As, if "A. strike B., B. cannot justify d^a^^'ing his sword, and cutting off A.'s hand," unless there was a dan- gerous scuHIe, and tho ma^-hem was inflictod in self- preservation {Cooper V. Beale, L. liai/ni. 177). (2) Deftiice nf Projierf;/. — A battery committed in defence of real or personal property is justifiable. Thus if one forcibly enters my house, I may forcibly eject him ; but if he enters quietly, I must u. o 122 PARTICULAR TORTS. first request him to leave. If after that he still refuse, I may use sufficient force to remove him, in resisting which, he will be guilty of an assault {Wlieelor v. Whiting, 9 C. 4' P. 265). So a riotous customer may be removed from a shop after a request to leave. (3) Correction of Pnpil. — A father or master may moderately chastise his son, pupil, or apprentice {Pemi V. Ward, 2 Cr., M. ^^ P. 338). Of//er PJxceptions. — An assault may be committed in order to stop a breach of the peace ; to arrest a felon, or one, when a felony having actually been committed, is reasonably suspected of it ; in arresting a person found committing a misdemeanor between the hom's of 9 p.m. and 6 a.m. ; in arresting a mali- cious trespasser, or vagrant under the Vagrancy Act. A chiu'chwarden or beadle may eject a distiu-ber of a congregation, and a master of a ship may assault and arrest an unruly passenger. So assaults and batteries, committed under legal process, are justifi- able ; but a constable ought not Knnecessarilij to handcuff an imcon\dcted prisoner, and if he do so he will be liable to an action {Griffin v. Coleman, 28 i. J'.,J5'.<-. 134) (r/). Defence under 24 & 25 Vict. c. 100. By sections 42, 44, 45, it is enacted, in effect, that, — Sub-rule. — WJiere an>/perso)i shall nnlanfnlhj assault or heat any other person, two justices of the peace, vpon (a) The same rule as to notice, tender of amends and limitation applies to batteries committed by constables in tlie execution of their duty as in false imprisomnent. OF ASSAll.T AM) ItATTKUY. 1'2'^ complaint hij or on ht'lmlf of the jxirtif aijiirifcrd, may hear and determine skc/i ojfrncr^ and if the j'tt-ifiirs^ upon thi' hcarinii of ainj such ca.sr, nhould (fccni thr opener not to be prorrdy or ahall find the aasau/t or hatterij to have been justified^ or so trijUng as not to merit any punishment, and shall aeeordinyly dismif'K the complaint, they shall forthnith nntke out a certi- ficate statin;/ the fact 0/ such dismissal, and shall delirer the same to the party charged ; and if any such person shall hare obtained such certificate, or hariny been con- victed shall hare paid the amount of the fine imposed, or shall hare suffered the imprisonment infiicted, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause {see also sect. 43). (1) A party ha\ing beou summoned before two justices under 9 Geo. 4, c. 'M, s. 27 (a statute con- taining an enactment similar to the above), for an assaiUt, appeared and pleaded not guilty; the plain- tiff declined to proceed, stating that he meant tn biing an action. The jastices ilismissod the com- plaint, and gave the following certificato : — " AVe deemed the ofFenco not proved, inasmuch as the com- plainant did not offer any evidence in support of thf information, and have accordingly dismissed the com- plaint:" held, that what passed before the justices constituted a heai'ing, and that the certificate was a complete bar to an action for the a.ssaidt ( Tunnirliffc v. Tcdd, 5 C. R 503). As to what constitutes a "heai-ing," see also Vaughton v. liradshair, 1) C. IL, X. S. 1(>3. (2) The words " from all fui-ther or other proceed- G 2 124 PARTICULAR TORTS. ings against the defendant, civil or criminal, for the same cause," include all proceedings against the de- fendant arising out of the same assault, whether taken by the prosecutor or by any other person con- sequentially aggrieved thereby {Masper and icife v, Broun, L. R., 1 C. P. Div. 97; 25 W. JR. 62). (3) If a person is charged for an assault, and the complaint is dismissed and a certificate given him, he cannot avail himself of the defence imder the statute, when sued on for the tort, unless he specially pleads such defence [IlavdiiKj v. King, Q C. 8^ P. 427). Damages. Rule 19. — In assessing Avhat amount of damages may be recovered for an assault, or battery, or mayhem, the time when, and the place in which, the assault took place sliould be taken into considera- tion. Thus an assault committed in a public place calls for much higher damages than one committed where there are few to witness it. " It is a greater insult," remarks Bathurst, J., in TulMge v. Wade (3 Wih. 10), "to be beaten upon the Royal Exchange than in a private room." Limitation, llule 14 applies to assaidt and battery. ( 1^^'5 ) ClIArTKR V. Of noDii.Y iNjruiEs c.vrsKi) my Nris\N( ks. Definition. TUo -svord iiiiisance (from tho French iiiilvc, to luu't) is applied in the English law indis- criminately to infringements of proprietary or per- sonal rights {Ad. 150) ; but for the puii)0se8 of tliis chapter it may be defined, as any >vrongfiil conduct in the management of property, or any wrongful interference with tho property of the public, not necessarily depending for its wrongful character upon negligence. General Duty. Rule 20. — A person Is IkjiurI so to use liis ju'operty as not to injure other persons, and he is also bound to ob- serve tlie express provisions of the law witli regard, to the user of his own and tlu> })ublic property. (1) lu-randions. Tlius wliere a man makes an excavation adjoining a liigliway, and keeps it un- fenced, he will be liable for any injury occasioned to a person falling into it {BonivH v. Ward, C. li. .'{f)2 ; Bishop V. Tni-skrH of ]i,d/i,rd Char., 2S L. ./., Q. 11. 215). (2) No.rioH.'i Fames. And so anything injurious 126 PARTICULAR TORTS. to the liealtli of persons li-ving near, as a foul cess- pool, or any noisome or noxious employment, act, or omission, is a nuisance. (3) Statutory Nuisances. Certain acts have been declared nuisances by statute, and private damage caused \)j them is of course actionable. Thus by 24 & 25 Yict. c. 100, s. 31 (re-enacting 7 & 8 Geo. 4, c, 18), the setting of spring-guns, man-traps, or other engines calculated to kill or do grievous bodily harm to a trespasser is made a misdemeanor, and even a trespasser hurt thereby may recover ; for although it would be partly owing to his own misconduct, yet if the defendant might, by acting rightly, have avoided doing the injurj^, the plaintiff's contributory miscon- duct is no excuse. But this act does not apply to the setting of traps or guns in the night in dwelling- houses for the protection thereof. (4) So by the General Highway Act, 5 & 6 Will. 4, c. 50, s. 70, it is made illegal for any person to sink any pit, or erect any steam or other like engine, gin, or machinery attached thereto, within twenty-five yards from any part of a carriage or cart way, unless concealed within some building or behind some fence, so as to guard against danger to passengers, horses, or cattle. It also prohibits the erection of -svindmills within fifty yards, and fires for the burning ironstone, limestone, or making bricks or coke, within fifteen yards of a carriage or cart way. Sect. 72 prohibits the letting off of fireworks or fircanus within fifty feet of the centre of the way, as also laying of things upon it or obstructing it in any way. OF liOnil.Y INJURIES CAUSED HY NUISANCES. 127 This Act creating these or some of these duties, :my coi-poral injury caused to an individual by theii' non-oLservanee is actiouaLle, even thougli the person injured were trespassing at the time (within twenty- five yards of the way). But if the Act has been conipUcd with, any injury caused by any of the things therein mentioned woidd be no ground of action, there being no injima or wrongfid act. (5) Thus where the defendants were ONvners of waste land bounded by two highways, and worked a •juany outside the prohibited distance in such land, and the plaintiff, walking over the waste, fell into the (^uarry and broke his leg, it was held that no action lay, the plaintiff being a mere trespasser {Uounsell V. Smith, 29 L. J"., C. P. 203 ; and see Bi>tk.^ v. S. Y. 8s It. D. II Co., 32 L. J., Q. B. 2G; Ilurd- castle V. S. W. ^- Y. IJ. li. Co., 23 L. J., Ex. 139). And so, by the civil law, a trespasser could not re- cover for injuries suffered whilst trespassing, tlu'ough the dangerous bushicss of the landowner, for " extra oulpam esse iutelligitur si seorsum a via forte vel in medio fundo caidebat, quia in loco nulli extraneo jus fuerat versaudi" {Imt., lib. iv., iii. 5). (G) Ilaiuou>i Prcmm's. Lea^^.ng premises adjoining a highway, or the land of another, in a ruinous con- dition is a public nuisance entitling a person, injured thereby, to damages {Tn.U v. FI!