UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY £ \A\ k A o6 f - THE S LAW OF TORTS BY ARTHUR UNDERHILL, M.A., LL.D. OF LINCOLN'S INN Barrister-at-La w AND J. GERALD PEASE, B.A., OF THE INNER TEMPLE Barrister-at- La w INCLUDING NOTES ON THE CANADIAN LAW BY W. J. TREMEEAR Barrister-at- Law NINTH ENGLISH AND THIRD CANADIAN EDITION LONDON : BUTTERWORTH & CO. TORONTO : CANADA LAW BOOK COMPANY, LIMITED PHILADELPHIA : CROMARTY LAW BOOK COMPANY 1912 COPYRIGHT (CANADA) 1912 BY R. R. CROMARTY, 3 in i WHICH WAS FORMERLY DEDICATED TO JOSEPH UNDERHILL, Esq., Q.C., THEN Recorder of Newcastle-under-Lyme AND A Master of the Bench of the Honourable Society of the Middle Temple, IS NOW MOST REGRETFULLY INSCRIBED Go bis Memory EDITORS' PREFACE. TN this Edition we have retained the general J- arrangement of topics adopted hitherto, but have made some alterations in detail. Thus we have removed the subject of the Employers' Liability Act to Part II., and have entirely rearranged the chapters on Defamation, and on Negligence and Nuisance. We have also devoted a chapter to the rule in Fletcher v. Bylands, references to which occurred in several places in earlier editions. The subject of the Workmen's Compensation Acts has received somewhat fuller treatment than in the last Edition. Though liability under those Acts is not strictly in tort, no student's work on the Elements of Tort would be complete without some reference thereto. We have endeavoured to bring the text up to date by incorporating the effect of all recent cases of sufficient importance to find a place in a student's book, and, to make room for new matter without increasing the bulk of the work, we have a 4 viii Editors' Preface. omitted considerable portions of the section on Nuisances to Incorporeal Hereditaments. On consideration we have come to the conclusion that the Law as to the Creation of Easements and the Nature of Eights of Common, Ferries and Fisheries belongs pro- perly to the Law of Property, and that it is only necessary in a work on the Law of Torts to consider what acts constitute disturbance of those rights. Mr. Underhill wishes to acknowledge the great assistance rendered by Mr. Pease, upon whom practically the burden of preparing this Edition for the press has fallen. AKTHUK UNDEKHILL. J. C. PEASE. September. 1911. EXTRACT FROM PREFACE TO THE EIGHTH EDITION. The fact that seven Editions of this Work have been sold, that an American firm have thought it worth their while to issue an unauthorised edition in the United States, and that a Canadian edition has been published, render it no longer necessary to apologise for its existence. Many of my friends and clients have expressed surprise that an Equity and Conveyancing Counsel should have written a Treatise on the Law of Torts. The answer is, that every lawyer, whatever his speciality may be, ought to know the principles of every branch of the law ; and, in my student days, my endeavours to fathom the principles of the Law of Torts were surrounded with so much unneces- sary difficulty, owing to the absence of any text-book separating principle from illustration, that I became con- vinced that a new crop of students would welcome even such a guide as I was capable of furnishing. The result has proved that I was not mistaken. Indeed, however useful the great treatises then existing were for the practitioner, they were almost useless to the student. In the first place, to his unaccustomed mind they presented a mere chaos of examples, for the most part unexplained, and, in the absence of explanation, seeming very often in direct contradiction. What student without careful explanation would grasp the difference between Fletcher v. Bylands and Nichols v. Marsland for instance ? In the second place, the men are few indeed who can trust their memories to retain the contents of a large x Extract from Preface to Eighth Edition. treatise with accuracy ; and although that is not necessary, yet it is essential that they should accurately rerneniher the principles of the law. For these and other reasons, I ventured to write this work; and I still think that if a student will thoroughly master it, he will know as much of the principles of the Law of Torts as will suffice to make him a competent general practitioner, and to pass him through his examina- tions so far as that subject is concerned. I do not assert for one instant that it will enable him to answer every case that comes before him, but I am not acquainted with any man whose mental stock enables him to do tbis. In the vast majority of cases the practitioner who has any regard for the interests of his clients, or the reputation of himself, will turn to his digests and his reports; for however well he may understand the principles of the law, it is only very long practice indeed, or the intuition of genius, which enables him to apply these principles to complicated facts with ease and certainty. ARTHUE UNDERBILL. ."). New Square, Lincoln's Inn, W.C. 1st June, 1905. TABLE OF CONTENTS. Preface Table op Statutes Cited Table of Cases Cited ... Introduction PAGE vii xix xxiii 3 PART I. OF TORTS IN GENERAL. RT . 1 „ 2. » 3. 11 4. )) 5. )) 6. 51 7. )) 8. 11 9 11 LO '» 11 1» L2 Chapter I. OF THE NATURE OF A TORT. Definition of a Tort Ubi j us ibi remedium Of Volition and Intention in relation to the unautho rised Act or Omission ... .... Malice and Moral Guilt Of the Connection of the Damage with the unautho rised Act or Omission The Act or Omission must be unauthorised Act of State General Immunity of Judicial Officers General Immunity of Executive Officers Authorisation by Statute Volenti non fit injuria To what Extent Civil Remedy interfered with where the unauthorised Act or Omission constitutes a Felony 11 12 14 1G 19 20 21 23 24 27 28 xii Table of Contents. Chapter II. BREACH OF STATUTORY DUTIES. PAGE Art. 13. Breach of Duty created for Benefit of Individuals ... 31 „ 14. Breach of Duty created for Benefit of Public ... 32 „ 15. Highway Authorities not liable for Nonfeasance ... 33 Chapter III. RELATION OF CONTRACT AND TORT. Art. 16. Distinction between Actions for Tort and for Breach of Contract ... ... ... ... ■•• ■•■ 37 ,, 17. Privity not necessary where the Remedy is in Tort... 38 „ 18. Duties gratuitously undertaken ... ... ... 40 Chapter IV. VARIATION IN THE GENERAL PRINCIPLE WHERE THE UNAUTHORISED ACT OR OMISSION TAKES PLACE OUTSIDE THE JURISDICTION OF OUR COURTS. Art. 19. Torts committed Abroad 43 Chapter V. OF PERSONAL DISABILITY TO SUE AND TO BE SUED FOR TORT. Art. 20. Who may sue 45 „ 21. Who may be sued for a Tort 46 „ 22. Joint Tort-feasors 49 Chapter VI. LIABILITY FOR TORTS COMMITTED BY OTHERS. Section /.— Liability of Husband for Torts of Wife. Art. 23. Wife's Ante-nuptial and Post-nuptial Torts ... 51 Section II. — Liability of Partners for Each Other's Torts. Art. 24. Statutory Rule 53- Table of Contents. xiii Section III.— Liability for Torts of Agents autho- rised Expressly or by Ratification. page Art. 25. Qui facit per alium facit per se 54 ,, 26. Ratification of Tort committed by an Agent ... 54 Section IV.— Liability for Torts of Servants. Art. 27. Respondeat Superior ... ... ••• 55 „ 28. Unauthorised Delegation by Servants 61 „ 29. Servants of the Crown 62 Section V.— Liability for Negligence of Independent Contractors. Art. 30. The General Rule 63 Chapter VII. THE EFFECT OF THE DEATH OR BANKRUPTCY OF EITHER PARTY. Art. 34. Damages for Personal Injury „ 35. Damages for Injury to Property „ 36. Presumption of Damage against a Wrongdoer „ 37. Consequential Damages „ 38. Prospective Damages „ 39. Aggravation and Mitigation „ 40. Insurance not to be Taken into Account 69 Section I. — Common Law. Art. 31. Death generally destroys the Right of Action „ 32. Effect of Bankruptcy 70 Section II— Statutory Liability for Causing Death. Art. 33. Actions by Personal Representatives of Persons killed by Tort 71 Chapter VIII. OF DAMAGES IN ACTIONS FOR TORT. 77 78 80 81 82 83 85 xiv Table of Contents. Chapter IX. OF INJUNCTIONS TO PREVENT THE CON- TINUANCE OF TORTS. PAGE Art. 41. Injuries remediable by Injunction ... 87 „ 42. Public Convenience does not justify tbe Continu- ance of a Tort ... ... ... 90 Chapter X. OF THE LIMITATION OF ACTIONS FOR TORT. Section I. — The Statutes of Limitations. Art. 43. Tbe Principal Periods of Limitation... ... ... 93 „ 44. Commencement of Period ... ... ... ... 94 ,, 45. Continuing Torts ... ... ... ... ... 96 „ 46. Disability 97 Section II. — Public Authorities Protection Act, 1893. Art. 47. Special limitation in favour of Public Officers and Authorities ... ... ... ... ... ... 98 PART II. OF RULES RELATING TO PARTICULAR TORTS. Chapter I. OF DEFAMATION. Art. 48. Definitions 103 ,, 49. What is Defamatory ... ... ... ... ... 104 ., 50. When Special Damage essential to Action for Slander 108 .. 51. The blind or Slander must refer to the Plaintiff ... 113 .. 52. Publication 114 .. 53. Repeating Libel or Slander ... ... ... ... 115 „ 54. Justification ... ... ... ... ... ... 117 „ 55. Fair Comment ... ... ... ... ... ... 118 Table of Contents. xv PAGE Art. 56 . Absolute Privilege 12t) „ 57. Qualified Privilege 123 ,, 58. Apology 128 „ 59. Slander of Title and Slander of Goods 129 Chapter II. OF MALICIOUS PROSECUTION. Art. 60. General Rule ••• 133 „ 61. Prosecution by the Defendant 134 62. Want of Reasonable and Probable Cause 135 „ 63. Malice 13 ~ „ 64. Failure of the Prosecution 138 „ 65. Damage i39 66. Maliciously taking Proceedings in Bankruptcy ... 140 Chapter III. OF MAINTENANCE. Art. 67. Definition 143 Chapter IV. OF SEDUCTION. Art. 68. Enticing and Harbouring 145 „ 69. The Ordinary Action for Seduction 146 „ 70. Misconduct of Parent 149 71. Damages in Ordinary Action for Seduction 150 Chapter V. TRADE MOLESTATION. Art. 72. Inducing Breach of Contract 153 „ 73. Molestation by Threats, Violence and Conspiracy ... 155 „ 74. Unlawfully Securing Custom 157 Chapter VI. OF DECEIT OR FRAUD. Art. 75. Definition of Fraud 161 76. When an Action will Lie for Fraudulent State- ments 77. The Liability of Directors and Promoters of Com- panies 162 165- PAGE 167 169 170 171 176 177 181 184 185 187 187 xvi Table of Contents. Chapter VII. * OF NEGLIGENCE. Art. 78. Definition „ 79. Duty of Persons Using Highway to take Care „ 80. Duty of Carriers of Passengers „ 81. Duty of Occupiers of Land and Houses to Persons coming by Invitation, etc... „ 82. Duty of Bailees of Goods „ 83. Duty to take Precautions with regard to Things Dangerous in themselves ... „ 84. Contributory Negligence ,, 85. Effective Cause... „ 86. Onus of Proof „ 87. Duties of Judge and Jury „ 88. Volenti non fit Injuria ... Chapter VIII. * LIABILITY FOR BREACH OF DUTY TO PREVENT DAMAGE FROM DANGEROUS THINGS AND ANIMALS. Art. 89. The Rule in Fletcher v. Rylands 191 „ 90. Damage by Animals 196 „ 91. Duty to Keep Fire from doing Mischief 200 Chapter IX. ^ LIABILITY OF EMPLOYERS FOR INJURIES TO THEIR SERVANTS AND WORKMEN. Section I. — Common Law Liability. Art. 92. The Doctrine of Common Employment 204 „ 93. Volunteer Servants 208 Section II. — The Employers' Liability Act, 1880. ART. 94. Epitome of Act 209 Section III. — The Workmen's Compensation Act, 1906. Art. 95. Liability to Pay Compensation ... 212 Table of Contents. xvi i Chapter X. OF PRIVATE INJURY FROM PUBLIC NUISANCES.^ Art. 96. Description of Public Nuisances ... - - 97. Public Nuisance only actionable m respect ot 1 ai tieular Damage 220 tieuiar uamage ... ••• - 98. Liability of Owner or Occupier for Public Nuisances 2.1 Chapter XL PRIVATE NUISANCES. Section /.-Nuisance to Corporeal Hereditaments. Art. 99. General Liability 100. Reasonableness of Place " 101 Plaintiff coming to the Nuisance " 102. Liability of Occupier and Owner for Nuisances 103. Prescription to Commit a Nuisance. " 10l' Remedy of Reversioners for Nuisances 105. Remedy by Abatement... Sedion //.-Nuisances to Incorporeal Hereditaments. Art. 106. Disturbance of Right of Support for Land without Buildings ... 107. Disturbance of Support of Buildings " 108. Disturbance of Right to Light and Air 109. Disturbance of Water Rights... 110. Disturbance of Private Rights of Way 225 228 230 231 232 234 235 238 241 242 245 248 Chapter XII. TRESPASS TO THE PERSON. Art. 111. General Liability for Trespass to the Person 112. Definition of Assault 113. Definition of Battery ... 114. Definition of False Imprisonment 115 Justification of Trespass to the Person 116 Self-defence as Justification of Assault and Battery I 117. Justification by Parental or Other Authority ... 118 Justification by Judicial Authority 119 Power of Magistrates to Arrest or order Arrest ... ", 120. Power of Constables and Others to Arrest in Obedience to Warrant 249 250 251 253 254 255 256 257 258 259 L.T. xviii Table of Contents. PAGE Art. 121. Power of Constables and Private Persons to Arrest for Felony without Warrant 260 „ 122. Power of Arrest for Preservation of the Peace ... 262 ,, 123. Arrest for Misdemeanor ... ... ... ... 263 „ 124. Institution of Criminal Proceedings endangers Right of Action for Assault ... ... ... ... 264 „ 125. Amount of Damages 265 Chapter XIII. OF TRESPASS TO LAND AND DISPOSSESSION. Section /.—Of Trespass Quare Clausuii Fregit. Art. 126. Definition 267 „ 127. Trespassers ab initio ... ... ... ... ... 269 „ 128. Possession necessary to enable the Plaintiff to maintain an Action for Trespass ... ... ... 270 „ 129. Trespasses by Joint Owners ... ... ... ... 272 „ 130. Limitation ... ... ... ... ... ... 272 „ 131. Remedies other than by Action ... ... ... 273 - ction II. — Of Dispossession. Art. 132. Definition 274 „ 133. Onus of Proof of Title 274 ., 134. Limitation ... ... ... ... ... ... 276 „ 135. Commencement of Period of Limitation 276 Chapter XIV. TRESPASS TO GOODS, DETENTION AND CONVER- SION OF GOODS. Art. 136. Definitions 279 ,, 137. Possession necessary to maintain an Action for Tres- pass 284 138. Trespassers ab initio 286 139. Conversion and Detention 286 14M. Waiver of Tort 289 141. Trespass and Conversion by Joint Owners 290 L42. Remedy by Recaption 290 l t3. Remedy by Action of Replevin 291 ill. Orders for Restitution of Stolen Goods 291 I N 1 >EX. TABLE OF STATUTES. PAGE 4 Edw. 3. c. 7. (Administration of Estates, 1330) 70 25 Edw. 3, c. 5. (Administration of Estates, 1351) ... ... 70 21 Hen. 8, c. 11. (Restitution of Goods Stolen, 1529) - s:; 21 Jac. 1, c. 16. (Limitation Act, 1G23) 93—96 s.3 '.»:;. 272 s. 7 97 31 Car. 2, c. 2. (Habeas Corpus Act, 1679) ... 254 11 Geo. 2, c. 19. (Distress for Rent Act, 1737), ss. 19, 20 ... 270 17 Geo. 2, c. 38. (Poor Relief Act, 1743), s. 8 ... 270 21 Geo. 2, e. 14. (Constable, 1751), s. 6 ... 259 11 Geo. 3, c. 78. (Fires Prevention (Metropolis) Act, 1774)— s. 86 ... 200 56 Geo. 3, c. 100. (Habeas Corpus Act, 1816) ... 254 5 Geo. 1, c. 83. (Vagrancy Act, 1824) ... 263 9 Geo. 1, c. 11. (Statute of Frauds Amendment Act. 1828)- s. 6 53,163 2 & 3 Will. 1. e. 71. (Prescription Act, 1832) ... ...233, 234, 244 ss. 3, 4 242, 243 3 & 1 Will. 1, c. 27. (Leal Property Limitation Act, 1833) — s. 2 ... 276 ^. 3, 10, 11 ... 277 s. 16 97,276 SS. 17. 29 ... 276 s. 34 ... 96 c. 12. (Civil Procedure Act, 1833). s. 2 ... 69 2 & 3 Vict. c. 47. (Metropolitan Police Act, 1839), s. 54 (1) 16 c. 93. (County Police Act, 1839), s. 8 ... 261 3 ,V; 4 Vict. c. 9. (Parliamentary Papers Act, 1840) — ss. 1, 2 121. 127 s. 3 ... 127 6 & 7 Vict. c. 86. (London Hackney Carriages Act. 1843) ... 57 c. 96. (Libel Act. 1843), ss. 1, 2 ... 129 8 & 9 Vict. c. 20. (Railways Clauses Consolidation Act, 1845) ... 210 -. Lol ... 264 c. 75. (Libel Ad, lsl.V). s. 2 ... 129 9 & 10 Vict. c. 93. (Fatal Accidents Act, 1846) ... 2'.'. 46 , 73, 75, 93, 99 v. 1 ...71,72 ss. 2. :;, 1 ... 72 xx Table of Statutes. PAGE 11 & 12 Vict. c. 44. (Justices Protection Act (Jevvis' Act), 1848)— 1 ... 23 14 & 15 Vict. c. 19. (Criminal Law Act, 1851), s. 11 263- 15 & 16 Vict. c. 76. (Common Law Procedure Act, 1852) Sched. B. : 7 20 & 21 Vict. c. 85. (Matrimonial Causes Act, 1857), s. 28 ... 52 24 & 25 Vict. c. 96. (Larceny Act, 1861)— s. 23 27a s!l00"! '" 291 c. 97. (Malicious Damage Act, 1861)... ... ... 263 c. 100. (Offences against the Person Act, 1861)— ss.42— 45 264 27 & 28 Vict. c. 95. (Administration of Estates Act, 1S64), s. 1 ... 72 28 & 29 Vict. c. 60. (Dogs Act, 1865) 197 33 & 34 Vict. c. 23. (Forfeiture Act, 1870), ss. 8, 30 45 34 & 35 Vict. c. 31. (Trade Unions Act, 1871) 48 36 & 37 Vict. c. 66. (Judicature Act, 1873) 274 s. 25 (8) 8» 37 & 38 Vict. c. 57. (Real Property Limitation Act, 1874) — S l ..." 276 s.2 277 ss. 3, 4 27& s.5 97,276 s.9 96 39 & 40 Vict. c. 22. (Trade Unions Act, 1876) 48 41 & 42 Vict. c. 16. (Factory and Workshop Act, 1878) 208 43 ,V: 44 Vict. c. 42. (Employers' Liability Act. 1880) ... 203, 209. 211.212,216 s. 4 93 45 & 46 Vict. c. 50. (Municipal Corporations Act, 1882). s. 191 ... 261 c. 75. (Married Women's Property Act, 1882) : 51, 52, 97 s. 1 45. 51 s. 12 45,46 ss. 13—15 51 s. 17 46 46 & 47 Vict. c. 52. (Bankruptcy Act, 1883) ss. 30 (2), 37 71 48 & 49 Vict. c. 69. (Criminal Law Amendment Act. 1885), s. 10... 134 51 & 52 Vict. c. 43. (County Courts Act, 1888)— s. 116 37 ss. 134— 137 291 c. 64. (Law of Libel Amendment Act, 1888) ... 12& s. 3 122 s. 4 128 8. 6 12» 53 & 54 Vict. c. 39. (Partnership Act, 1890)— s. 10 50,52,53 s. 11 52 s. 12 50,53 c. 64. (Directors' Liability Act, L890), ss. 3.4. 5 ... 166 54 & 55 Vict. c. 51. (Slander of Women Act, 1891) ... 109,110 Table of Statutes. xxi PAGE 54 & 55 Vict. c. 76. (Public Health (London) Act, 1891), s. 29 ... 33 56 & 57 Vict. c. 61. (Public Authorities Protection Act, 1893) ...98, 99 c. 71. (Sale of Goods Act, 1893)— ss. 21—23 282 s. 24 282,283 s. 25 (2) 282 60 & 61 Vict. c. 37. (Workmen's Compensation Act, 1897) ... 211 63 & 61 Vict, c. 22. (Workmen's Compensation Act, 1900) ... 211 3Edw. 7, c. 36. (Motor Car Act, 1903) 264 c. 42. (County Courts Act, 1903), s. 3 37 5 Edw. 7, c. 11. (Railway Fires Act, 1905) 202 6 Edw. 7, c. 32. (Dogs Act, 1906) 196 s. 1 (1) 196 s. 7 197 c. 47. (Trade Disputes Act, 1906) 49,154 s. 1 157 ss. 3, 4 154 c. 58. (Workmen's Compensation Act, 1906) ... 203, 211,212,214 s. 1 212 (2) 215,216 s. 8 213 s. 9 215 s. 13 213,215 Sched. 1 213,215 8 Edw. 7, c. 7. (Fatal Accidents Act, 1908) 75 c. 69. (Companies (Consolidation) Act, 1908), s. 84 : 166 9 Edw. 7, c. 44. (Housing, Town Planning, etc., Act, 1909)— ss. 14, 15 172 TABLE OF CASES CITED. A. PAGE A. v. B. (1889), 24 L. R. Ir. 234 ; suh novi. S. v. S., 16 Cox C. C. 566 : 30 Abrath v. North Eastern Rail. Co. (1886), 11 App. Cas. 247 ; 50,1. P. 659 ; 55 L. J. Q. B. 457 ; 55 L. T. 63 48, 135, 138 Adams r. Lancashire and Yorkshire Rail. Co. (1869), L. R. 4 C. P. 739; 38 L. J. C. P. 277 ; 20 L. T. 850; 17 \V. R. S84 188 Adamson v. Jarvis (1827), 4 Bing. 66 ; 5 L. J. (O.s.) C. P. 68 ; 12 Moore C. P. 241 ; 29 R. R. 503 50 Agency Co. v. Short (1888), 13 App. Cas. 793 ; 53 J. P. 132 ; 58 L. J. P. C. 4; 59L.T. 677; 37 W. R. 433 96 Alabaster v. Harness. [1895 J 1 Q. B. 339; 64 L. J. Q. B. 76; 14 R. 54 ; 71 L. T. 740 ; 43 \V. R. 196 [C. A.] 144 Aldin r. Latimer. Clark, Muirhead & Co., [1894] 2 Ch. 437 ; 63 L. J. Ch. 601 ; 71 L. T. 119 ; 42 W. R. 453 ; 8 R. 352 243 Aldred v. Constable (1844). 6 Q. B. 370 ; 8 Jur. 956 281 Alexander v. Jenkins. [1892] 1 Q. B. 797 ; 56 J. P. 452 ; 61 L. J. Q. B. 634 ; 6ii L. T. 391 ; 40 W. R. 546 112 Allbutt v. General Medical Council of Education and Registration (1889),23Q.B. D.400 ; 54 J. P. 36 ; 58 L. J. Q. B. 606 ; 61 L. T. 585; 37 W. R. 771 [C. A.] 128 Allen r. Flood, [1898] A. C. 1 ; 62 J. P. 595 ; 67 L. J. Q. B. 119 ; 77 L. T. 717 ; 46 W. R. 25S 14, 15, 154, 156 r. New Gas Co. (1876), 1 Ex. D. 251 ; 45 L. J. Ex. 668 ; 34 L. T. 541 204 v. Woods (1893), 68 L. T. 143 : 4 R. 249 [C. A.] 276 Allsop r. Allsop (I860). 29 L. J. Ex. 315 ; 2 L. T. 290 ; 8 W. li. 449 ; 5 H. & N. 534 ; 6 Jur. (x.s.) 433 109 Ambler v. Gordon, [1!>05] 1 K. B. 417 ; 74 L.J. K. B. 185 ; 92 L. T. 96 ; 53 W. R. 300 245 Anderson v. Gorrie. [1895] 1 Q. B. 668 ; 71 L. T. 382 79 TC A 1 V. Oppenheimer (1SS0), 5 Q. B. D. 602 ; 49 L. 708 [C. A.] v. Radcliffe (1858), El. Bl. & El. 806 ; 29 L. 128 ; 1 L. T. 487 ; 8 W. R. 283 ; 6 Jur.(N.S.) 578 Andrew v. Failsworth Industrial Society, [1904] 2 K. B. 32 409 ; 73 L. J. K. B. 511 ; 90 L. T. 611 ; 52 W. 20 T. L. R. 429 [C. A.] 214 Appleby v. Franklin (1S85), 17 Q. B. D. 93 ; 50 J. P. 359 ; 55 L.J. Q. B. 129 ; 54 L. T. 135 ; 34 W. R. 231 29 Arkwright v. Newbold (1881), 17 Ch. 1). 301 ; 50 L. J. Ch. 372 ; 44 L. T. 393 ; 29 W. R. 655 162 Armory r. Delamirie (1722), 1 Str. 505 : 1 Sm. L. C. 356 ... 80, 288 Arnold r. Blaker (1871), L. R. 6 Q. B. 433 ; 40 L. J. Q. B. 185 ; 19 W. R. 1090 219 2 ; 14 K. 11, 22 J. Q. B. 195 J. Q. B. 271 ; 68 J. P. R. 4f >i ; xxiv Table of Cases Cited. PAGE Ashby v. White (1703). 2 Lord Raymond, 988 : 3 Lord Raymond, 320; 1 Sm. L. ('. 240 : 14 How. St. Tr. 695 238 Asher V. Whitlock (1865). L. R. 1 Q. B. 1 ; 35 L. J. Q. B. 17 ; 13 L. T. 254 ; 14 W. R. 26 ; 11 Jur. (x.s.) 925 ... 270, 274, 275 Ashton v. Stock (1877). 6 Ch. D. 719 : 25 W. R. 862 277 Aspden v. Seddon (1875), L. R. 10 Ch. 394 : 44 L. J. Ch. 359; 32L.T. 415; 23 W. R. 580 239 Atkinson v. Newcastle Water Co. (1877). 2 Ex. D. 441 ; 46 L.J. Ex. 775 ; 36L.T. 761 ; 25 W. R. 794 [C. A.] 33 Att.-Gen. v. Birmingham Town Council (1858). (3 W. R. 811: 4 K. &.I. 528 90,218 v. Brighton and Hove Co-operative Supply Association, r 1900] 1 Ch. 276 ; 69 L. J. Ch. 204 ; 81 L. T. 762 ; 4S W. R. 314 [C. A.] 218 v. Cole & Son, [1901] 1 Ch. 205 ; 65 J. P. 88 ; 70 L. J. Ch. 148 ; 83 L. T. 725 229 v. Conduit Colliery Co., [1895 J 1 Q. B. 301 : 59 J. P. 70; 64 L. J. Q. B. 207 : 71 L. T. 777 : 43 W. R. 366 ; 15 R. 267 [C. A.] 239 r. Dorking Union Guardians (1882), 20 Ch. D. 595 ; 51 L. J. Ch. 585 : 46 L. T. 573 ; 30 W. 11. 579 [C. A.] 89 v. Horner (1886). 11 App. Cas. 66: 50 J. P. 564; 55 L. J. Q. B. 193 : 54 L. T. 281 : 34 W. R. 641 ... 219 v. London and North Western Railway. [1900] 1 Q. B. 78 ; 63 J. P. 772 ; 69 L. J. Q. B. 26 ; 81 L. T. 649 [C. A.] 91 /•. Luton Local Board (1859). 2 Jnr. (x.s.) 180 218 c. Manchester Corporation. [1893] 2 Ch.87 ; 57 J. P. 343 ; 62 L. J. Ch. 459 ; 68 L. T. 608 : 41 W. R. 459 ; 3 R. 427 26 ,-. Tod Heatlev. [1897] 1 Ch. 560 : 66 L. J. Ch. 275 ; 76 L. T. 174 ; 45 W. R. 394 [C. A.] 218, 223 Austin v. Dowling (1870), L. R. 5 C. P. 534 ; 39 L. J. C. P. 260 ; 22 L. T. 721 ; 18 W. R. 1003 257, 258 v. Great Western Rail. Co. (1S67). L. R. 2 Q. B. 442 ; 36 L. J. Q. B. 201 : 16 L. T. 320; 15 W. R. 863 171 Australian Newspaper Co. v. Bennetr. [1894] A. C. 284; 58 J. P. 604 ; 63 L. J. P. C. 105 ; 70 L. T. 597 ; 6 R. 484 107 Ayre r. Craven (1834). 4 L. J. K. B. 35 ; 2 Ad. & Ell. 2 ; 4 N. &M. 220 ; 41 R. R. 359 112 B. Backhouse r. Bonomi (1861). 34 L. J. Q. B. 181 ; 4 L. T. 754; 9 W. R. 769 ; 9 H. L. Cas. :,o:\ ; 7 Jur. (N.S.) 809 ... 94, 95, 238 Baddelev v. Granville (Earl) (1887), 19 Q. B. ]). 1l':; ; 51 J. V. 822 ; 56 L. J. Q. B. 501 ; 57 L. T. 268 : 36 YV. R. 63 190 Baily & Co. v. ('lark. Son, and Moreland, [1902] 1 Ch. 649; 71 L. J. Ch; 396 : 86 L. T. 309; 50 W. R. 51] [C. A.] 246 Bainbridge v. Postmaster-General, [1906] j K.B. 178 ; 75 L. J.K.B. 366 ; 94 L. T. 120 ; 54 W. R, 22] ; 22 T. L. R. 70 [C. A.] ... 62 Baker e. Snell, [1908] 2 K. B.825 ; 77 L..I.K. B. L090 ; 24T.L.R. 811 ; 52 Sol. J. 681 [C. A.] 193,196,197,199,200 Baldwin o. Case.lla (1872), L. It. 7 Ex. 325; 41 L. J. Ex. 167; 26 L. T. 707 ; 21 W. R. 16 197 Ball. Eke parte, Shepherd, Be (1879), 10 Ch. D. 667 ; 48 L. J. Bkcv. 57 ; 40 L. T. 141 ; 27 W. R. 563 ; 14 Cox C. C. 237 [C. A.] ...29, 30 Table of Cases Cited. xxv PAGE Ball v. Ray (1873), L. R. 8 Ch. 467 ; 28 L. T. 346 ; 21 W. R. 282 227,22a Ballard B.Tomlinson (1885), 29 Ch. D. 115 ; 49 J.P.692 ; 54 L. J. Ch. 154 ; 52 L. T. 942 ; 33 W. R. 533 192, 246,247 Bamfield v. Goole and Sheffield Transport Co., Limited. [1910] 2 K B. 94 : 79 L. J. K. 1?. 1070 ; 103 L. T. 201 [C. A.] ... 180 Bamford v. Turnley (1862), 3 15. & S. 62 ; 31 L. .1. Q. B. 280 ; 10 W. R. 803 : 9 Jur. (N.S.) 377 22b Barber v. Penley, [1893] 2 Ch. 447 ; 62 L. J. Ch. 623 ; 68 L. T. 662 ; 3 R. 489 * _ "• '"' Barker v. Furlong, [1801] 2 Ch. 172 ; 60 L. J. Ch. 368 ; 04 L. 1. 411 ; 39 W. R. 621 ;8S v. Herbert, [1911] 2 K. B. 633 223,224 Barley r. Walford (1846), 9 Q. B. 197; 15 L. J. Q. B. 369; 10 Jur. 917 ; 72 R. R. 218 161 Barnardiston r. Chapman (1715), cited 4 East, 121 ; Bnl. N. P. 34 : 290 Barnes v. Ward (1850), 9 C. B. 392 ; 19 L. J. C. P. 195 ; 2 Car. & K. 661 ; 14 Jur. 334 218,220 Barratl v. Kearns, [1905] ] K. B. 504 ; 74 L.J. K.B. 318 ; 92 L.I. 255 : 53 \Y. 1!. 356 ; 21 T. L. R. 212 [C. A.] 122 Bartlett v. Wells (1862), 1 1?. & S. 836 : 31 L. J. Q. B. 57 ; 5 L. T. 607 ; 10 W. R. 229 ; 8 Jur. (N.S.) 762 4/ Barton's-hill Coal Co. v. Reid (1858), (5 W. R. 664 ; 4 Jur. (N.S.) 767 ; 3 Macq. H. L. Ca. 266 206 Barwick r. English Joint Stock Bank (1867), L. R. 2 Ex. 259 ; 36 L. T. Ex. 147 : 16 L. T. 461 ; 15 W. R. 877 58, 165 Basebe v. Matthews (1867). L. R. 2 C. P. 684 ; 36 L. J. M. C. 93 : 16 L. T. 417 ; 15 W. R. 839 138,139 Bass r. Gregory (1890). 25 Q. B. D. 481 ; 55 J. P. 119 ; 59 L. J. Q. IS. 574 ... ... 243,244 Bathurst (Borough) v. Macpherson (1879), 4 App. Cas. 2»6 ; 48 L. .1. P. C. 61 ; 41 L. T. 778 ■ 34 Battersea (Lord) r. City of London Sewers Commissioners. [189.)] 2 Ch. 708: 59 J. P. 728: 65 L. J. Ch. 81 ; 73 L. T. 110; 44 W. R. 124; 13 R. 795 244 Battishill r. Reed (1856), 18 C. B. 090 ; 25 L. J. C. P. 290 227 Baxter v. Taylor (1833), 2 L. J. K. B. 65 ; 4 B. & Ad. 72 ; 1 N. & M. 13 ; 38 R. R. 227 — 234 Bayley v. Manchester, Sheffield and Lincolnshire Rail. Co. (1872), L. R. 7 C. P. 415; 41 L. J.C. P. 278 60 Beard v. London General Omnibus Co., [1900] 2 Q. B. 530 ; 69 L. J. Q. B. 895 ; 83 L. T. 302 : IS W. R. 658 [C. A.] ... 58 Beasley v. Roney, [1891] 1 Q. B. 509 ; 55 J. P. 500 ; 00 L. J. Q. B. 408 ; 65 L. T. 153 ; 39 W. R. 415 45 Beaver v. Manchester Corporation (1857). 8 El. & 151. 44 ; 20 L. J. Q.B. 311; 4 Jur. (N.S.) 23 268 Beck v. Pierce (1889), 23 Q. 15. 1). 310 : 54 J. P. 198 ; 58 L. J. Q. B. 510 ; 01 L. T. 448 ; 38 W. R. 29 [C. A.] 52 Beckham r. Drake (1849), 2 H. L. Cas. 579 ; 13 Jur. 921 70, 71 Beckwith v. Philby (1827). 5 L. .1. (O.S.) M. C. 132 ; B. & C. G35 ; 9 1). & R. 487 ; 30 R. R. 484 200 Bedford r. M'Kowl (1S00), 3 Esp. 119 X50 Bedingfield v. Onslow (1685), 3 Lev. 209 234 Belfast Ropeworks Co. o. Boyd (1888). 21 L. R. Ir. 500 [C. A.] ... 247 Bell v. Stone (1798), 1 B. & P. 331 ; 4 R. R. 820 106 Bellamy r. Wells (1890), 00 L. J. Ch. 156 ; 63 L.T. 035 ; 39 W. R. 158 22/ Benjamin v. Storr (1874), L. R. 9 C. P. 400; 43 L. J. C. P. 102 ; 30 L.T. 302 ; 22 \V. R. 031 220 xxvi Table of Cases Cited. PAGET- Bennett r. Alcott (1787), 2 T.R. 166 148 Bernina, The, Mills v. Armstrong; (1888), 13 App. Cas. 1 : 52 J. P. 212 : 57 L. J. P. 65 ; 58 L. T. 423 ; 8G W. R. 870 ; 6 Asp. M. C. 257 183,184 Berrmger v. Great Eastern Rail, Co. (1879). 4 C. P. D. 163 ; 48 L. J. C. P. 400 ; 27 W. R. 681 73,145 Besozzi v. Harris (1858), 1 E. & F. 92 1% Betts r. Gibbina (1834). 2 A. & E. 57 ; 4 L. J. K. B. 1 ; 41 R. R. 3S1 ; 4 N. & M. 64 50- Bird v. Holbrook (1828), 6 L. J. (o.s.) C. P. 146; 4 Bing. 628 : 1 Moo. ,V P. 607 : 29 R. R. 657 174, 175 v. Jones (1845). 7 Q. B. 743 ; 15 L. J. Q. B. 82 ; 9 Jur. 870 ; 68 R. R. 564 253 Birmingham Corporation v. Allen (1877). 6 Ch. D. 284 ; 46 L. J. Ch. (173 ; 37 L. T. 207 : 25 W. K. 810 [C. A.] 238, 239 Birmingham Vinegar Brewery Co. v. Powell, [1897] A. C. 710 ; 66 L. J. Ch. 763 : 76 L. T. 792 158, 159 Black v. Christchurch Finance Co., [1894] A. C. 48 ; 58 J. P. 332 ; 63 L. J. P. C. 32 : 70 L. T. 77 : 6 R. 394 67, 201 Blades v. Higgs (1861). 10 C. B. (sr.S.) 713 ; 30 L. J. C. P. 347 ; 4 L. T. 551 ; 7 Jur. (n.S.) 1289 ; affirmed 11 H. L. Cas. 621 ; 20 C.'B. (N.S.) 214 : 34 L. J.C. P. 286 ; 12L.T.615; 13W.R. 927 ; 11 Jur. (N.S.) 701 290 Blair and Sumner v. Deakin, Eden and Thwaites v. Deakin (1887), 52 J. P. 327 ; 57 L. T. 522 49 Blake v. Lanyon (1795), 6 T. R. 321 ; 3 R. R. 162 145 r. Midland Rail. Co. (1852), 18 CL B. 93 : 21 L. J. Q. B. 233 ; 16 Jur. 562 ... ... ... ... ... ... ... ... 74 Bliss r. Hall (1838), 7 L. J. C. P. 122 ; 4 Bin-. X. C. 183 ; 5 Scott, 500 ; 6 1). P. C. 442 ; 1 Arn. 19 : 2 Jur. 1 10 ; 44 R. li. 697 ... 230 Blofield r. Payne (1833). 2 L. J. K. B. 68 ; 4 B. & Ad. 410 ; 1 X. & M. 353... 158 Bloodworth v. Gray (1*44), 7 Man. & G. 334; 8 Sco. N. R. 9 ; 66 R. R. 720 109.111 Blyth v. Birmingham Water Co. (1856), 25 L. J. Ex. 212; 11 Ex. 781 ; 4. W. R. 294 ; 2 Jur. (N.S.) 333 167 v. Eladgate, Morgan v. Blyth, Smith v. Blyth, [1891] 1 Ch. 337 ; 60 L.J. Ch. h6 ; 63 L. T. 546 ; 39 W. K. 422 53 Boden v. Roscoe, [1894] 1 Q. 13. 608 : 58 J. P. 368 ; 63 L. J. Q. B. 767 ; 70 L. T. 450 ; 42 W. R. 445 ; 10 R. 173 273 Bonnard v. Perrvman, [1S91] 2 Ch. 269 : 60 L. J. Ch. 617 ; 65 L. T. 16 ; 39 W. R. 435 [C. A.] 88,90 Booth v. Arnold, [1895] 1 Q. B. 571 : 59 J. P. 215 ; 64 L. J. Q. B. 413 ; 72 L. T. 310 ; 43 \V. R. 360 ; 14 R. 326 [C. A.] ... 109, 112 Bottomley /•. Brongham, [1908] 1 K. B. 584 : 77 L. J. K. 15. 311 ; 99 L. T. Ill; 24 T. 1.. R. 262 ; 52 Sol. J. 225 120, 122 Round p. Lawrence, [1892] 1 Q.B.226 ; 56 J. P. lis ; 61 L. J.M.C. 21 : 65 L. T. 844 : 40 VV. R. 1 [C. A.] 211 Bowen v. Anderson, [Is'.q] 1 (.2. B. 161 ; 12 W. R. 256 : 10 R. 47... 222 v. Hall (1881 ). 6 (^. B. I). 3:;:'. ; 45 J. P.373 ; 50 L.J. Q. B. 305 ; 41 1.. T. 75 : 29 \Y. R. 367 [C. A.] 154 Bower /•. Peate (1876), 1 Q. R. D. 321 ; 45 L. J. Q. B. 446 ; 35 L. T. 321 66 Bowyer v. Cook (1847), 4 C. B. 236 272 Box v. Jabb (1879), 4 Ex. 1). 76 ; 48 L. J. Ex. 417 ; 11 L. T. 97 ; 27 \Y. R. 415 194 Table of Cases Cited. xxvn 127 199 Boxsius v. Goblet Freres, [18941 1 1 Q- B. 842; 58 J. P. 670; 63 L. J. Q. B. 401 ; 70 L. T. 368 : 42 W. R. 392 ; 9 R. 224 rc. A.i Boyle r. Tamlyn (1827). 5 L. J. (o.s.) K. B. 134 ; 6 B. & C. 32'.) ; 9 Dow. & R. 430 ; 30 R. R. 345 Bradburn r. Great Western Rail. Co. (1874), L. R. 10 Ex. 1; -I I L. J. Ex. 9 ; 31 L. T. 464 ; 23 W. R. 468 < s - ! Bradford Corporation r. Ferrand, [1902] 2 Ch. 655 ; 67 J. P. ,21 ; 71 L. J. Ch. 859 ; 87 L. T. 388 ; 51 W. R. 12 2 ... 246,247 r. Pickles," [1895] A. C. 587; 60 J. P. 3; 04 L. J. Ch. 759 ; 73 L. T. 353 ; 44 W. R. 190 ; 11 R. 286 : 14, 15 225, 226, 24/ Bradlaugh v. Newdigate (1883), 11 Q. B. 1). 1 ; 52 L.J. Q. B. 454; 31 W. R. 792 U3 '14 Brassington v. Llewellyn (1858), 27 L. J. Ex. 29 ... -'* Brewer v. Dew (1813), 12 L. J. Ex. 448 ; 1 1 M. & W . 62o ; 1 D. & L. 383 ; 7 Jur. 953 ; 63 R. R. 690 '0, 71 r. Sparrow (1827), 6 L. J. (O.s.) K. B. 1 ; 7 B. & C. 310 ; 1 Man. &R.2 -■• ■■■ 2bJ Brinsmead r. Harrison (1871), L. R. 6 C. P. 584 ; 40 L. J. C. 1 . 281 ; 24L.T.798; 19 W.R. 956 ... 287 v. (1872). L. R. 7 C. P. 547; 41 L.J. C.P.190; 27 L. T. 99 ; 20 W. R. 784 . 49 > o0 British Cash and Parcel Conveyers, Limited r. Larason Store Service Co., Limited, [1908] 1 K. B. 1006 ; 77 L. J. K. B. 649 ; 98 L. T. 875 [C. A.] ■•• ;•• 1U British Mutual Banking Co. v. Charnwood (1887), 18 Q. B. D. 714 ; 52 J. P. 150 r 56 L. J. Q. B. 449 ; 57 L. T. 833 ; 35 W. B. 590 [C. A.] •;• ° 9 British South Africa Co. i: Companhia de Mocambique, [1893] A. C 602; 63 L. J. Q. B. 70; 69 L. T. 604; 6 R. 1 Britton v. South Wales Rail. Co. (1858). 27 L. J. Ex. 355 n Brocklebank v. Thompson, [1903] 2 Ch. 344 ; 72 L. J. Ch. 626 ; 89L.T. 209 24b Bromage r. Prosser (1825), 3 L. J. (o.s.) K. B. 203 ; 4 B. & C. 247 ; 6 Dow. & R. 296 ; 1 Car. fe P. 475 ; 24 R. R. 241 14 Brown v. Boorman (1844), 3 Q. 15. 511 ; 11 CI. .V F. 1 ; 65 R. R. I... 37 v. Hawkes, [1891] 2 Q. B. 718 ; 55 J. P. 823 ; 61 L. J. Q. B. 151 ;65L.T. 108 [C. A.] 137,138 r . Robins (1859). 4 II. & N. 186 ; 28 L. J. Ex. 250 ... ... 241 Brunsden v. Humphrey (1884), 14 Q B. D. 141 ; 49 J. P.4 ; 53 L.J. Q. B. 476 ; 51 L.T. 52-.) ; 32 W. R. 944 [C. A.] 82 Brunswick (Duke) v. Hanover (King) (1844), 13 L. J. Ch. 10/ ; 6 Beav. 1 ; 8 Jur. 253 ; 63 R. R. 1 ib Bryant v. Lefever (1879), 4 C. P. 1). 172; 48 L. J. C. P. 3S0 ; 40 L. T. 579 ; 27 W. R. 592 243.244 Bulli Coal Mining Co. v. Osborne, [1S99] A. C. 351 ; 68 L. J. P. C. 49 ; 80 L.T. 430 : 47 W. K. 545 -• J1 Burgess v. Burgess (1853), 22 L. J. Ch. 675 ; 3 De G. M. & G. 896 ; 17 Jur. 292 loi> Burnard v. Haggis (1863), 14 C. B. (x.s.) 45 ; 32 L. J. C. P. 189 ; 8 L. T. 320 ; 11 W. It. 644 ; 9 Jur. (N.s.) 1325 4/ Burr v. Smith, [ 19091 2 K. B. 306 ; 78 L. J. K. 15. 889 ; lol L. T. 194 ; 25 T.'L. R. 542 ; 53 Sol. J. 502 ; 16 Manson, 210 [C. A.]... 122 v. Theatre Royal, Drury Lane, Limited, [1907] 1 K. B. 544 ; 76 L. J. K. 15. 459 ; 96 L. T. 447 : 23 T. L. R. 299 [C. A.] : 205, 206 Burrows v. March (.as and Coke Co. (1872), L. R. 7 Ex.96 ; 41 L.J. Ex. 46 ; 26 L. T. 318; 20 W. R. 493 19 44 xxviii Table of Cases Cited. PAGE Burton r. Hughes (1824), 3 L. J. C. P. 243 ; 2 Bing. 173 ; 9 Moore, 334 289 Butcher r. Butcher (1827), 6 L. J. (o.S.) K. B. 51 ; 7 B. & C. 399 ; 1 Man. & R. 220 : 31 R. R. 237 271 Butterfield v. Forrester (1809), 11 East, GO : 10 R. R, 433 ... 182, 184 Bjnev. Moore (1813), 5 Taunt. 187; 1 Marsh. 12 139 Byrne v. Boadle (1863), 33 L. J. Ex. 13 ; 9 L. T. 450; 12 W. R. 279 ; 2 H. & C. 722 185,186 c. Cable v. Bryant, [19081 1 Ch. 259 ; 77 L. J. Ch. 78 : 98 L. T. 98 : 213, 244 Cahill v. Fitzgibbon (1885), 16 L. R. Ir. 371 260 Calder r. Halket (1840), 3 Moo. P. C. C. 28 : 50 R. R. 1 22 Caledonian Rail. Co. v. Mulholland, [1898] A. C. 216: 67 L. J. P. C. 1 ; 77 L. T. 570 : 46 W. R. 236 167, 168 Calye's Case (1584), 1 Sm. L.C.I 19 177 Campbell i\ Spottiswoode ( 1863), 3 B. & S. 769 : 32 L.J. Q. B. 185 ; 8 L. T. 201 ; 11 W. R. 569 ; 9 Jur. (N.S.) 1069 120 Cannon !,-. Rbnington (1852), 12 C. B. 1 ; 21 L. J. C. P. 137 ... 277 Capel v. Powell (1864). 17 C. B. (N.S.) 743 ; 34 L. J. C. P. 168 ; 11 L. T. 421 ; 13 W. II. 159 ; 10 Jur. (N.S.) 1255 52 Capital and Counties Bank v. Hentv (1882). 7 App. Cas. 741 ; 47 J. P. 214 ; 52 L. J. Q. B. 232 ; 47 L. T. 662 ; 31 W. R. 157 : 103, 105—107, 124 Carlyon v. Lovering (1857). 26 L. J. Ex. 251 ; 5 W. R. 347 ; 1 H. & N. 784 248 Carpue v. London and Brighton Co. (1844), 5 Q. B. 747 ; 13 L. J. Q. B. 138; Dav. & M. 608 ; 3 Hail. Cas. 692 ; 8 Jur. 464 ... 186 Carr i\ Clarke (1818), 2 Chit. 260 ; 23 R. R. 74S 148 v. Fracis Times & Co., [1902] A. C. 176 ; 71 L. J. K. B. 361 ; 50W.R. 257 43.44 Carslake v. Mappledoram (1788), 2 T. R. 473 Ill Carstairs v. Taylor (1871), L. R. 6 Ex. 217 ; 40 L. J. Ex. 129; 19 W. R. 723 195 Carter v. St. Mary Abbots. Kensington Vestry (1900). 64 J. P. 548 [C. A.] 55 ( lastrique v. Behrens (1861), 3 El. & El. 709 ; 30 L. J. Q. B. 163 ; 4 L. T. 52 ; 7 Jur. (N.S.) 1028 139 Cavalier v. Pape, [1906] A. C. 428 ; 75 L. J. K. B. 609 ; 95 L. T. 65 ; 22 T. L. R, 648 172.173 Chamberlain r, Boyd (1883), 11 Q.B. D.407; 47 J. P. 372 ; 52 L. J. Q. B. 277 : 48 L. T. 328 ; 31 W. R. 572 [C. A.] 109 Chaplin (W. II.) & Co., Limited v. Westminster Corporation, [1901] 2 Ch. 329 : 65 J. P. 661 ; 70 L. J. Ch. 679; 85 L. T. 88; 49 W. I!. 586 10 Chapman v. Pickersgill (1762). 2 Wils. 146 11 I hasemore v. Richards (1859), 29 L. J. Ex. 81 ; 7 W. R. 685; 7 II. L. Cas. 349 ; 5 Jur. (N.S.) 873 226, 246, 247 < Jhastey v. Ackland, [1895] 2 Ch. 389 ; 64 L. J. Q. B. 523 ; 72 L. T. 845 ; 43 W. R. 627 ; 12 R. 420 [C. A.] 243,244 Chastev v. Ackland, [1S97] A. C. 155 ; 66 L.J. Q. B. 518 ; 76 L. T. 130 243,244 Cbatterton r. Secretary of State for India in Council, [1S95] 2 Q.B. 189 ; 59 J. 1'. 596 ; 64 L. J. Q. B. 676 ; 72 L. T. 858 ; 14 li. 504 121 Table of Cases Cited. xxix PAGE Chauntler v. Kobinson (1849), 4 Ex. 163 ; 19 L. J. Ex. 170 ... 2 ! 1 Chinery v. Viall (I860), 29 L.J. Ex. 180; 2 L. T. 406; 8 W. Li. 629 ; 5 H. & N. 295 38 Christie r. Cowell (1790), Peake, 4 ; 3 K. R. 642 110 Christopberson v. Bare (1848), 11 Q. B. 473; 17 L. J. Q. B. 109; 12Jur.374 251, 232 Churchill v. Siggerfi (1854), 3 El. & Bl. 929 : 23 L. J. Q. 15. 308 ; 2 W. R. 551 ; 2 C. L. li. 1509; 18 Jur. 773 133 Citizens' Life Assurance Co. v. Brown, [1904] A. C. 42:5 ; 73 L. .J. P. C. 102 ; 90 L. T. 739 ; 53 W. K. 176 ; 20 T. L. R. 41)7 ...48,61 City of Lincoln, The (1889), 15 P. D. 15; 59 L. J. P. & D. 1 ; ' 62 L. T. 49 ; 38 W. R. 345 ; '6 Asp. M. ('. 475 [C. A.] ... 82 Clark v. Freeman (1S4S). 17 L. J. Ch. 142; 11 Beav. 112 ; 12 Jur. 149 89 r. London General Omnibus Co., Limited, [1906] 2 K. B. 648 ; 7:. L. J. K. B. 907 ; 95 L. T. 435 ; 22 T. L. R. 691 [C. A.] 9, 7:!. 74, 145 v. Molyneux (1877), 3 Q. B. L\ 237; 47 L. J. Q. B. 230; 37 L.T. 694 ; 26 W. Li. 104 : 11 Cox C. C. 10 [O. A.] : 123—125 v. Woods (1848), 17 L. J. M. C. 189 ; 2 Ex. 395 ; 3 New Sess. Cas. 253 24 Clarke v. Army and Navy Co-operative Society. [1903] 1 K. B. 155 ; 78 L. J. K. B. 153 ; 88 L. T. 1 [C. A.] ... 179 Clayards v. Dethick (1848), 12 Q. B. 439 28 Cleary r. Booth. [1893] 1 Q. B.465 ; 57 J. P. 375 ; 62L.J.M. C. 87 ; 68 L. T. 349 ; 41 W. Li. 391 ; 5 Li. 263 ; 17 Cox C. C. 611 ... 256 Clement v. Chivis (1829), 7 L. J. (o.s.) K. 1!. 189 ; 9 B. & C. 172 ; 4 M. & R. 127 ; 32 li. R. 624 107 Cobbett v. Gray (1850), 4 Ex. 729 ; 19 L. J. Ex. 137 251 Cocke v. Jennor (1604), Hob. 66 49 Cockroftv. Smith (1703), 11 Mod. Rep. 43 255 Coggs v. Bernard (1703). 1 Sin. L. C. 173 ; 2 Ld. liaym. 909 ... 40, 41, 176, 177 Coldrick v. Partridge, Jones & Co., Limited, [1909] 1 K. B. 530; 78 L. J. Iv. B. 452 ; 100 L. T. 314 ; 25 T. L. R. 218 ; 53 Sol. J. 214 : affirmed, [1909] W. N. 257 ; 26 T. L. li, 104 ; 54 Sol. J. 132 206 Collis v. Laugher, [1894] 3 Ch. 659 ; 63 L. J. Ch. 851 ; 71 L. T. 226 ; 43 W. R. 20a ; 8 R. 760 243 Colls v. Home and Colonial Stores, Limited. [1904] A. C. 179; 73 L. J. Ch. 484 ; 90 L. T. 687 ; 53 W. R. 30 ; 20 T. L. R. 1 75 : 89. 243, 21 1 Consolidated Co. v. Curtis & Son. [1892] 1 Q. B. 495 ; 56 J. P. 565 ; 61 L. J. Q. B. 325 ; 40 W. R. 426 282 Conway v. Wade, [1909] A. ('. 506 ; 78 L. -J. K. B. 1025; 101 L.T. 248 ; 25 T. L. K. 779 : 53 Sol. J. 754 154 Cook v. Beal (1697), Ld. liaym. 177 255 v. North Metropolitan Tramways Co. ( 1887), 18 Q. B. D. 683; 51 J. P. 630 ; 56 L. J. Q. B. 309 ; 56 L. T. 448 ; 57 L. T. 476 ; 35 VY. R. 577 211 Cooke r. Midland Great Western Rail. Co. of Ireland, [1909] A. ('. 229; [1909] 2 I. K. 199; 78 L. J. C. P. 76 ; LOO L.T. 626; 25T.L.R.375 174,176,180,183 Cooke v. Wildes (1855), 5 E. & B. 328 : 21 L. J. Q. B. 267 ; 3 VV. R. 458 ; 3 C. L. R. L090 ; 1 Jur. (N.s.) 610 123 Cooper v. Booth (1785). 3 Esp. 135 ; I Dougl. 339 : 1 T. Ii. 535 n... 134 r. Shepherd (1846), 3 ('. B. 266 ; 15 L. .1. C. P. 237 ; 4 D. & L. 214; 10 .Jur. 758; 71 M. ii. 349 287 xxx Table of Cases Cited. PAGE Cooper r. Willomatt (1845), 14 L. J. C. P. 21!) ; 1 C. & B. 672 ; 9 Jur. 598 287,289 Corby c. Hill (1858), 4 C. B. (U.S.) 556 ; 27 L. J. C. P. 318 ; 4 Jur. (N.S.) 512 ; 6 W. R. 575 175 Cornfoot v. Fowke (1840), 9 L. J. Ex. 297 ; 6 M. & W. 358 ; 4 Jar. 919 ; 55 R. R. 655 [C. A.] 165 Cornford v. Carlton Bank, [1899] 1 Q. B. 392 ; 08 L. J. Q. B. 196 ; 80L.T.121 ; T1900] 1 Q. B. 22 ; 69 L.J. Q. B. 1020 ; 81 L. T. 415 . •• 48,138 Costar v. Hetheriugton (1859), 28 L. J. M. C. 198 265 Cotterell v. Jones & Ablett (1851), 11 C. B. 713 ; 21 L. J. C. P. 2 ; 16 Jur. 88 139 Coughlin v. Gillison, [1899] 1 Q. B. 145 ; 6S L. J. Q. B. 147 ; 79 L. T. 627 ; 47 W. R. 113 [C. A.] 180 Coulson v. Coulson (1887), 3 T. L. R. 846 [C. A.] 90 Coward r. Baddeley (1859), 28 L. J. Ex. 260 ; 4 H. & N. 478 ; 5 Jur. (N.S.) 414 ; 7 W. R. 466 252 Cowles v. Potts (1865), 34 L. J. Q. B. 247 ; 11 Jur., - L. .1. (N.S.) K. 15. 148 ; 1 A. & E. 119 ; 3 H. & N. 746 ; 40 R. R. 268 274 Dominion Natural Gas Co. d. Collins, [1909] A. C. 610 ; 101 L. T. 359 ; 25 T. L. R. 831 177 Dominion Natural Gas Co. U. Perkins and Others, [1909] A.C.640 ; 101 L. T. 359 ; 25 T. L. R. 831 177 xxxii Table of Cases Cited. PAGE. Donald v. Suckling (1866), L. R. 1 Q. B. 5S5 ; 35 L. J. Q. B. 232 ; 14 L. T. 772 ; 15 W. R. 13 ; 12 Jur. (x.s.) 795 ; 7 B. & S. 783 .- 288 Donovan v. Laing, Wharton and Down Construction Syndicate, [1893] 1 Q. B. 629 ; 57 .1. P. 583 ; 63 L. J. Q. B. 25 ; 68 L. T. 512 ; 41 W. R. 455 ; 4 R. Ml 7 [C. A.] 58 Doorman v. Jenkins (1834), 4 L. J. K. B. 29 : 2 A. & E. 256 ; 4 N. & M. 170; 41 R. It. 129 41,168 Doswell ». Impev (1823). 1 B. & C. 169 21 Dovaston v. Payne (1795), 2 H. Bl. 527 ; 2 Sm. L. C. 160 ; 3R. R. 497 268 Dovev v. Cory, [1901] A. C. 477 ; 70 L. J. Ch. 753 ; 85 L. T. 257 ; 50 W. R. 65 ; 17 T. L. It. 732 ; 8 Manson, 346 166 Dublin. Wicklow and Wexford Rail. Co. v. Slattery (1878), 3 App. Cas. 1155; 39 L. T. 365 ; 27 W. R. 191 169,170,185 Duck r. Mayeu, [1892] 2 Q. B. 511 ; 57 J. P. 23; 62 L. J. Q. B. 69 : 67 L. T. 547 ; 41 W. R. ^ ; 4 R. 38 [C. A.] 49 Dulieu '•. White & Sons. [1901] 2 K. B. 669 ; 70 L. J. K. B. 837 ; 85 L. T. 126 ; 50 W. R. 76 81 Dunn v. Birmingham Canal Co. (1872). L. R. 8 Q. B. 42 ; 42 L. J. Q. B. 34 ; 27 L. T. 683 ; 21 W. R. 266 240 Dyer p. Mundav, [1895] 1 Q. B. 742 : 59 J. P. 276 ; 64 L. J. Q. B ' 44S ; T2L.T. 448; 43 W. R. 440; 14 R. 306 [C. A.] 61 E. Eager r. Grimwood (1S47), 16 L. J. Ex. 236 ; 1 Ex. 61 ; 74 R. R. 584 151 Earl r. Lubbock. [1905] 1 K. B. 253 ; 74 L. J. K. B. 121 ; 53 W. R. 145 [C. A.] 40 Earle v. Kir.gscote, [1900] 1 Ch. 203 51 Eastern and South African Telegraph Co. x. Cape Town Tramways Co., [1902] A. C. 3S1; 71 L. J. P. C. 122: 86 L. T. 457; 50 W. R. 657 192 Eastwood r. Holmes (1858), 1 E. & F. 347 113 Eaton r. Johns (1842). 1 Dowl. (x.s.) 602 106 Edmondson v. Birch & Co.. Limited and Horner, [190/] 1 K. B. 371 : 76 L. J. K. B. 346 ; 96 L. T. 413 ; 23 T. L. R. 234 [C. A.] 115,127 Edwards v. Midland Rail. Co. (18S0), 6 Q. B. D. 287 ; 45 J. P. 374 ; 50 L. J. Q. B. 281 ; 43 L. T. 694 ; 29 W. R. 609 48 Ellis v. Loftus Iron Co. (1874), L. R. 10 C. P. 10 ; 44 L. J. C. P. 24 ; 31 L. T. 483 ; 23 W. R. 246 199, 267 r. Sheffield Gas Consumers Co. (1853), 2 El. & Bl. 767 ; 23 L. J. Q. B. 42; 2 W. R. 19; 2 C. L. R. 249; 18 Jur. 146 63,66 Elwood r. Bullock (1844), 6 Q. B. 383 ; 13 L. J. Q. B. 330 : 8 Jur. 1044 219 Embrey v. I >wen (1851), 20 L. J. Ex. 212 ; 6 Ex. 353 ; 15 Jur. 633 : 245, 246 Emmens v. Pottle (1885), 16 Q. B. D. 354; 50 J. P. 228 ; 55 L. J. <,>. B. 51 ; 53 L. T. 808; 31 W. R. 116 [C. A.] 47, 117 lhart /•. Farrant & Co., [1897] 1 Q. B.240 ; 66 L.J.Q. B. 122 ; 75 L. T. 617 ; 45 W. It. 179 [C. A.] 18. 62. 184 Evans v. Harries (1856), 26 L. .J. Ex. 51 : 1 H. & X. 251 109 P, Walton (1867), L. R. 2 C. P. 615 ; 36 L. J. C. P. 307 ; 17L.T. 92; 15 W. K. 1062 146—148 Every /•. Smith (1857). 26 L. J. Ex. 344 271 Table of Cases Cited. xxxiii F. PAGE Faldo«. Ridge (1604), Yelv. 74 268 Falvey v. Standford (1874), L. R. 10 Q. B. 54 ; 44 L. J. Q. B. 7 ; 31 L. T. 677 ; 23 W. R. 162 77 Fenna v. Clare & Co., [1895] 1 Q. B. 199 ; 64 L. J. Q. B. 238 ; 15 R. 220 219 Fenton v. Thorley & Co., Limited, [1903] A. C. 443 ; 72 L.J. KB. 7S7 ; 89 L. T. 314 ; 52 W. R. 81 ; 19 T. L. R. 684 213 Fenwick v. East London Rail. Co. (1875), L. R. 20 Eq. 544 ; 44 L. J. Ch. 602 ; 23 W. H, 901 89 Fillmrn v. People's Palace and Aquarium Co. (1890), 25 Q. B. D. 258 : 55 J. P. 181 ; 59 L. J. Q. B. 471 ; 38 W. R. 706 [C. A.] : 196, 198 Filliter v. Phippard (1847), 11 Q. B. 347 ; 17 L. J. Q. B. 89 ; 12 Jur. 202 ... ... 200,201 FindonV. Parker (i843), 11 M. & W. 675 ... 144 Firth r. Bowling Iron Co. (1878), 3 C. P. D. 254 ; 47 L. J. C. P. 358 ; 38 L. T. 568 ; 26 W. R. 558 192 Fisher i\ Prowse (1862), 2 B. & S. 770 ; 31 L. J. Q. B. 212 ; 6 L. T. 711 ; 8 Jur. (N.S.) 1208 220 Fitzgerald v. Clarke (W. G.) & Son, [1908] 2 K. B. 796 ; 77 L. J. K. B. 1018 ; 99 L. T. 101 [C. A.] 214 Fitzjohn v. Mac-kinder (1861). *J C. B. (N.S.) 505 ; 30 L. J. C. P. 257 ; 4 L. T. 149 ; 9 W. R. 477 ; 7 Jur. (N.S.) 1283 131 Fletcher v. Rylands (1866), L. R. 1 Ex. 265 ; affirmed sub nom. Rylands v. Fletcher (1868), L. R. 3 H. L. 330 ; 37 L. J. Ex. 161 ; 19 L. T. 220 — 191—193 v. Smith (1877), 2 App. Cas. 781 ; 47 L.J. Ex. 4 ; 37L.T. 367; 26 W. R. 83 l'»4 Flight r. Thomas (1840), 10 L. J. Ex. 529 ; 11 A. & E. 688 ; 3 P. & I). 442; 8 CI. & F. 231; 52 R. R. 46S ; 5 Jur. 811 244 Foreman /•. Canterbury Corporation (1871), L. R. 6 Q. B. 214; 40 L. J. Q. B. 138 ; 24 L. T. 385 ; 19 W. R. 719 35 Fores r. Wilson (1791), 1 Peake, 55 ; 3 R. R. 652 147 Foster v. Warblington Urban Council, [1906] 1 K. B. 648 ; 70 J. P. 233 ; 75 L. J. K. 3. 514 ; 94 L. T. 876 ; 54 W. R. 575 ; 22 T. L. R. 421 ; 4 L. G. R. 735 [C. A.] 192 Foulger v. Newcomh (1867), L. R. 2 Ex. 327 ; 36 L. J. Ex. 169 ; 16 L. T. 595 ; 15 W. R. 1181 109 Fowler v. Hollins (1872), L. R. 7 Q. B. 616 ; 41 L. J. Q. B. 277 ; L'7 L. T. 168 ; 20 W. R, 868 282 France v. Gaudet (1871), L. R. 6 Q. B. 199 ; 40 L. J. Q. B. 121 ; 19W.R.622 79 Francis v. Cockrell (1870), L. R. 5 C. P. 184 174 Franklin v. South Eastern Rail. Co. (1858), 6 W. R. 573 ; 3 H.&N. 211 ; 4 Jur. (N.S.) 565 74 Fray v. Fray (1864). 17 C. B. (N.S.) 603 ; 34 L.J. C. P. 45 ; 10 Jur. (N.S.) 1153 10* Fritz /•. Hobson (1S80). 14 Ch. D. 542 ; 49 L. J. Ch. 735 ; 42 L. T. 677 ; 28 W. R. 722 10,220 Fryer r. Kynnersly (1863), 15 C. B. (n.s.) 422 ; 33 L. J. C. P. 96 ; 9 L. T. 415 ; 12 W. R. 155 ; 10 Jur. (N.S.) 441 125 Fulton v. Norton, [1908] A. C. 451 ; 99 L. T. 455 ; 24 T. L. R. 794... 32 G. Gallwey r. Marshall (1853), 23 L. J. Ex. 78 ; '.» Ex. 21)5 ; 2 C. L. R. ;;-.>ii ; 2 \V. R. 106 m xxxiv Table op Cases Cited. Gandy r. Jubber (18(54). 5 B. & S. 78 ; 33 L. J. Q. B. 151 ; 9 L. T. 800 ; 12 W. R. 526 ; 10 Jur. (n.s.) 652 222 Gane v. Norton Hill Colliery Co., [1909] 2 K. B. 539 ; 78 L. J. K. B. 921 ; 100 L. T. 979 : 25 T. L. R. 610 [C. A.] 214 Ganley r. Ledwidge (1884). 14 L. R. Ir. 31 [C. A.] 282 Gardener r. Slade (1849), 13 Q. B. 796 ; 18 L. J. Q. B. 334 ; 13 Jur. 826 125 Gardner v. Hodgson's Kingston Brewery Co.. [1903] A. C. 229 ; 72 L. J. Ch. 558; 88 L. T. 698 : 52 W. R. 17 ; 19 T. L. II. 458 233 Garret v. Taylor (1620). Cro. Jae. 567 156 Gautret v. Egerton (1867). L. R. 2 C. P. 371 ; 36 L. J. C. P. 191 ; 16 L. T. 17; 15 W. R. 638 171.173— 175 Geddis v. Bann Reservoir (Proprietors) (1878). 3 App. Cas. 430 ... 25 Gee r. Pritchard (1818). 2 Swan. 402 : 19 R. R. 87 89 George and Richard, the (1871), L. R. 3 Ad. & Ec. 466 ; 24 L.T. 717 46.73,188 George r. Skivington (1869), L. R. 5 Ex. 1 ; 39 L. J. Ex. 8 ; 21 L. T. 495 : 18 W. R. 118 39,179 Gibbs r. Guild (1882), 9 Q. B. D. 59 ; 51 L. J. Q. B. 313 ; 46 L. T. 248 ; 30 W. R. 591 94 Giblan v. National Amalgamated Labourers' Union of Great Britain and Ireland, [1903] 2 K. B. 600 ; 72 L. J. K. B. 907 ; S9 L. T. 386 [C. A.] 157 Gibraltar Sanitary Commissioners v. Orfila (1890). 15 App. Cas. 400 ; 59 L. J. P. C. 95; 63 L. T. 58 ' 33 Gilea v. Walker (1890), 24 Q. B. D. 656 : 54 J. P. 599 : 59 L. J. Q. B. 416 ; 62 L. T. 933 ; 38 W. R. 782 195 Gilpin v. Fowler (1854). 9 Ex. 615 ; 23 L. J. Ex. 152 ; 2 W 18 Jur. 292 .... Gladwell v. Steggall (1839), 5 Bing. N. C. 733 Glasgow Corporation v. Lorimer, [1911] A. C. 209 ; 104 L. 55 Sol. J. 363 : 48 Sc. L. R, 399 : Glasier e. Rolls (1889). 62 L. T. 133 [C. A.] Glyn, Mills & Co. v. East and West India Docks Co. (1882), 7 App. Cas. 591 ; 52 L. J. Q. B. 146 ; 47 L. T. 309 ; 31 W. R. 201 ... 282 Godefroy v. Dalton (1830), 8 L. J. (O.S.) C. P. 79 ; 6 Bing. 460 ; 4 M.&P. 149; 31 R. R. 467 169 Goff v. Great Northern Rail. Co. (1861), 3 El. & El. 672 ; 30 L. J. Q. B. 148 ; 3 L. T. 850 : 7 Jur. (N.S.) 286 60 Coffin v. Donnelly (1881), 6 Q. B. D. 307 ; 45 J. P. 439 ; 50 L. .J. Q. B. 303 ; 44 L. T. 141 ; 29 W. R. 440 121 Goodtitle v. Alker (1757), 1 Burr. 133 ; 1 Ld. Ken. 427 271 Goodwvn v. Cheveley (1859). 28 L. .J. Ex.298; 4 H. & N. 631 ; 7 \Y. R. 631 ..." 19S Grainger v. Hill (1838), 7 L. J. C. P. 85; 4 Bing. N. C. 212; 5 Scott, 561 ... ... ... ... ... ... ... ... 253 Grand Trunk Railway of Canada v. Barnett, [1911] A. C. 361 ; 104 L. T. 362 ; 27 T. L. R, 359 170, 171 Grand Trunk Rail. Co. v. Jenninjgs (1888), 13 App. Cas. 800; 58 L. J. P. C. 1 : 59 L. T. 679 ; 37 W. U. 403 74 Great Western Rail. Co. v. Bennett (1867), L.R. 2 H. L. 27 ; 36 L.J. Q. B. 133 ; 16 L. T. 186 ; 15 W. R. 647 240 Green v. Duckett (1883), 11 Q. B. D. 275 ; 47 J. P. 487 ; 52 L. J. Q. B. 435 ; 48 L. T. 677 ; 31 W. R. 607 273 Greenslade v. Halliday (1830), 8 L. J. (o.s.) C. P. 124 ; 6 Bing. 379; I Moo. & P. 71 ; 53 R. R. 241 234 li - : -■2 ■ 126 39, 168. , 169 T. :;; >i ; 61 164 Table of Cases Cited. xxxv PAGE Gregory /•. Piper (1829), B.& C. 591 ; 4 Man. & R. 500 ; 33 R. H. 268 267 v. Williams (1844), 1 C. & K. 568 82 Greta Holme, The, [1897] A. C. 596 ; 66 L. J. Adm. 166 ; 77 L. T. 23 : 8 Asp. M. C. 317 80 Greville v. Chapman (1844), 5 Q. B. 741 ; 13 L. J. Q. B. 172 ; 1). & M. 553 : 8 Jur. 189 107 Griffin v. Coleman (1859), 28 L. J. Ex. 134 ; 4 H. & N. 265... 261, 2G2 Griffiths r. Dudley (Karl) (1882), 9 Q. B. D. 357; 51 L. J. Q. B. 543 ; 47 L. T. 10 : 30 W. R. 797 73, 211 v. Teetgen (1854), 15 C. B. 344; 24 L. J. C. P. 35; 3 W. R. 11 ; 1 Jur. (N.S.) 426 149 Grinham >: Willey (1859). 28 L. J. Ex. 242; 4 H. & N. 496; 7 W. R. 463 ; 5-Jur. (N.S.) 444 258 droves v. Wimborne (Lord), [1898] 2 Q. B. 402 ; 67 L. J. Q. B. 862 ; 79 L, T. 284 ; 47 W. R, 87 ; 14 T. L. R. 493 [C. A.] ... 32, 205, 208 Gwilliam t: Twist. [1895] 2 Q. B. 84 ; 59 J. P. 484 ; 64 L. J. Q. B. ^74 ; 72 L. T. 579 ; 43 W. R. 566 ; 14 R. 461 [C. A.] 62 Gwinnell v. Lamer (1875). L. R. 10 C. P. 658 ; 32 L. T. 835... 221. 224 H. Haddrick v. Heslop (1848), 12 Q. B. 267; 17 L. J. Q. B. 313: 12 Jur. 600 137 Hadwell v. Righton. [1907] 2 K. B. 345 ; 7) J. P. 499 ; 76 L. J. K. B. 891 ; 97 L. T. 133 ; 23 T. L. R. 548 ; 5 L. G. R. 881 ... 17, 198 Halestrap r. Gregory, [1895] 1 Q. B. 561 ; 64 L. J. Q. B. 415 ; 72 L. T. 292 ; 43 W. R. 507 ; 15 R. 306 185 Haggard Freres v. Pelicier, [1892] A. C. 61 : 61 L. J. P. C. 19; 65 L. T. 769 23 Halliday v. Holgate (1868), L. R. 3 Ex. 299 ; 37 L. J. Ex. 174 ; 18 L. T. 656; 17 W. R. 13 288 Halsey v. Brotherhood (1881), 19 Ch. D. 386 ; 51 L. J. Ch. 233 : 45 L. T. 640 ; 30 W. R. 279 [C. A.] 130, 131 Hamilton v. Long, [1903] 2 I. R. 407 ; affirmed [1905] 2 I. R. 552 [C.A,] '. 148 Hammersmith, etc. Rail. Co. v. Brand (1869), L. R. 4 H. L. 171 ; 38 L.J. Q. B. 265 ; 21 L. T. 238; 18 W. R. 12 25,26 Hanbury r. Hanbury (1892), 8 T. L. R. 560 [C. A.] 47 Hancock v. Somes (1859), IE. & E.795; 28 L. J. M. 0.196 ; 7W.R. 122 ; 5 Jur. (N.S.) 983; 8 Cox C.C. 172 265 Hannam v. Mockett (1824), 2 L. J. (o.S.) K. B. 183 ; 2 B.& C. 939 ; 4 1). & K. 518; 26 K. R. 591 273 Hardy v. Ryle (1829), 7 L. J. (o.S.) M. C. 118 ; 9 B. & C. 603 ; 4M. & R. 295 1)7 Hargreave v. Spink, [1892] 1 Q. B. 25 ; 61 L. J. Q. B. 318 ; 65 L. T. 650; 40 W. R. 254 283 Hargroves Aronson & Co. v. Hartopp, [1905] 1 K. B. 472 ; 74 L. J. K. B. 233 ; 53 W. R, 262 ; 21 T. L. R. 226 173. 224 Harrington (Earl) v. Derby Corporation, [1905] 1 Ch. 205 ; 69 J. 1'. 62; 74L. J. Ch. 219 ; 92L.T.153 89,98 Harris v. Brisco (1 886), 1 7 Q. B. 1). 504 ; 55 L. J. Q. B. 423 ; 55 L. T. 14; 34 W. R.729[C.A.] Ill v. Butler (1837). 6 L. .J. Ex. 133 : 2 M. & W. 542 ; M. & H. 117; 1 Jur. 608; 46 R. R. 695 146 v. Mobbs (1878). 3 Ex. D. 268 ; 39 L. T. 164; 27 \V. R. 154 17 PAGE 219: 72 L. J. K , B. 725 : .. 41, 170,171 Q. B.' 142;' 57 J. P. 278 ; L. T. 35 ; 41 W. K. 322 ; xxxvi Table of Cases Cited. Harris v. Ferry & Co., [1903] 2 K. B. 89 L. T. 174 [C. A.] Harrison v. Rutland (Duke), [1893] 1 62 L. J. Q. B. 117 ; 68 4 R. 155 [C. A.] 268 r.Southwark and Vauxhall Water Co., [1891] 2 Ch. 409 ; 60 L. J. Ch. 630 : 64 L. T. 864 89 Harrold v. Watney, [1898] 2 Q. B. 320; 67 L. J. Q. B. 771 ; 78 L. T. 788 ; 46 W. R. 642 [C. A.] 183, 219 Hart r. Wall (1877), 2 C. F. D. 146 ; 46 L. J. C. F. 227 ; 25 W. R. 373 H4 Hartley r.Hindmarsh (1866). L. R. 1 C. F. 553; 35 L. J. M. C. 255 ; 14 L. T. 795 ; 14 W. R. 862 ; 1 H. & R. 607 ; 12 Jur. (N.S.) 502 Harvey v. Maine (1872), 6 I. C. L. R. 417 Hatchard v. Mege (1887), 18 Q. B. D. 771 ; 51 J. P. 277 ; Q. B. 397 ; 56 L. T. 662 ; 35 W. R. 576 Haycroft v. Creasy (1801), 2 East, 92 ; 6 R, R. 380 ... Head v. Briscoe (1833). 5 C. & P. 484 ; 38 R. R. 841 Heaven v. Pender (1883), 11 Q. B. D. 503 ; 47 J. P. 709 : Q. B. 702 ; 49 L. T. 357 [C. A.] Hebditch r. Maclhvaine, [1894] 2 Q. B. 54 ; 58 J. P. 620 Q. B. 587 ; 70 L. T. 826 : 42 W. R. 422 ; 9 R. 452 Hedges v. Tagg (1872), L. R. 7 Ex. 283 ; 41 L. J. Ex. 169 ; 976 Hedley r. Pinkney & Sons Steamship Co., [1892] 1 Q. 56 J. P. 308 ; 61 L. J. Q. B. 179 ; 66 L. T. 71 ; 40 W. 7 Asp. M. C. 135 [C. A.] Hellwig /-.Mitchell, [1910] 1 K. B. 609; 79 L. J. K. 102 L. T. 110 ; 26 T. L. R. 244 Heming v. Power (1842), 10 M. & W. 564 ; 6 Jur. 858 ; 705 110 Henderson v. Preston (1888), 21 Q. B. D. 362 ; 52 J. P. 820 ; 57 L. J. Q. B. 607 ; 36 W. R. 834 [C.A.] 24 Henderson & Co. r. Williams, [1895] 1 Q. B. 521 ; 64 L. J. Q. B. 308 ; 72 L. T. 98 : 43 W. R. 274 [C.A.] 79 Hermann Loog r. Bean (1884). 26 Ch. D. 306; 48 J. P. 708; 53 L.J. Ch. 1128 ; 51 L. T. 442 ; 32 W. R. 994 [C. A.] ... 90 Hetherington v. North Eastern Rail. Co. (1882), 9 Q. B. D. 160 ; 51 L. J. Q. B. 495 : 30 W. R. 797 74 Hewlett r. Cruchley (1813). 5 Tannt. 283 136 Hickman v. Maisey, [1900] 1 Q. B. 752; 69 L. J. Q. B. 511 ; 82 L.T. 321 ; is YV. R. 385 [C. A.] 268 Hicks /.Faulkner (1882). 8 Q. B. 1). 167 ; 51 L. .1. Q. 15. 268; 30 W. E. 545 136,138 Higgina v. Searle (1909). 73 J. P. 185 ; 100 L. T. 280 ; 25 T. L. R. 301 : 7 L. G. R. H40 [('. A.] ... 198 Binton r. Heather (1845), 15 L.J. Ex. 39; 14 M.&W. 131 ... 137 Hodgson v. Sidney (1866), L. R. 1 Ex. 313; 35 L. J. Ex. 182; I I L. T. 621 ; 11 W. R. 923 ; 1 II. & C. 492 ; 12 Jur. (N.S.) 694 70,71 Hodson '-. Pare, [1899] 1 (,». B. 455 ; 68 L. .1. (,>. B. 309 ; 80 L. T. 13 : 17 W. R. 241 [C. A.| L22 H<>t:n /-. Ward (1858). 27 L. J. Ex. I t3 : 6 W. R. 595 ; 3 II. & X. 117:1 Jur. (N.s.) 885 261 Bolden v. Thompson, 1907] 2 K. B. 189; 78 L. J. K. B. 889; '.i7 1.. T. 138 : 23 T. L. R.529 ... 144 264 253, 256 56 L.J. 70 47 52 52 L. J. 169, 178 63 L. J. 127 20 w. it. 146. 147 . B. 58; . R. 113; 206 B. 270 ; 108, 111 62 R. R. Table of Cases Cited. xxxvii PAGE Hole r. Barlow (1858), 4 C. B. (n.s.) 33-1 ; 27 L. J. C. P. 207 ; 6 W. R. 619 ; 4 Jur. (N.8.) 1019 230 b. Sitting-bourne and Sheernesa Hail. Co. (18(51). 30 L. J. Ex. 81 ; 3 L. T. 750 : 9 W. R. 274 ; (i II. & N. 488 ... CM. 66 Holleran v. Bagnell (1879). 4 L. R. Ir. 740 72 Holliday v. National Telephone Co., [1899 J 2 Q. B. 392 ; 68 L. J. Q. B. 1016; 81 L. T. 252; 47 W. R. 658; 15 T. L. R. 183 [C A.] 67 Hollins ». Fowler (1875), L. R. 7 II. L. 757 ; 44 L. J. Q. B. 169 : 33 L. T. 73 281, 282 Holmes ». Mather (1875), L. R. 10 Ex. 261 ; 44 L. .1. Ex. 176; 33 L. T. 361 ; 23 W. R. 364 252 Holt v. Scbolerield (1796), 6 T. R. 691 ; 3 R. R. 318 Ill Hope v. Evered (1886), 17 (,». B. 1). 338; 55 L. J. M. C. 146; 55 L. T. 320 ; 34 W. R. 742 ; 16 Cox C. C. 112 135 Horwood v. Smith (1788). 2 T. R. 750; 2 Leaek C. C. 586 n. : 1 R. R. 613 • 283 Houlden v. Smith (1850), 14 Q. B.841 ; 19 L. J. Q. B. 170 ; 14 Jar. 598 21,23 Hounsell v. Smyth (1860), 7 C. B. (n.s.) 731 ; 29 L. J. C. 1'. 203 ; 1 L. T. 440 ; 8 W. R, 277 ; 6 Jur. (N.S.) 897 175, 219 Hubback A: Sons v. Wilkinson, Heywood and Clark, [1899] 1 Q. B. 86; 6SL. J. Q. B. 34; 79L.T. 429 [C. A.J 130,131 Hudson ,-. Roberts (1851), 6 Ex. 679 ; 20 L. J. Ex. 299 ... 196, 197 Hurler v. Allen (1866), L. R. 2 Ex. 15 ; 36 L. J. Ex. 17 ; 15 L. T. 225 ; 15 W. R. 281 ; 4 H. & C. 634 ; 12 Jur. (N.S.) 930 ... 139 Huggert v. Miers, [1908] 2 K. B. 278 ; 77 L. J. K. B. 710 ; 99 L. T. 326 ; 24 T. L. R. 582 ; 52 Sol. J. 4S1 [C. A.] 173 Hughes r. Pereival (1883). 8 App. Cas. 443 ; 47 J. P. 772 ; 52 L. J. Q. B. 719; 49 L. T. 189 ; 31 W. R. 725 64.66 Hulton (E.) & Co. v. Jones, [1910] A. C. 20; 79 L. J. K. B. 198 ; 101 L. T. 831 ; 26 T. L. R. 128 ; 54 Sol. J. 116 ; 47 So. L. R. 591 13, 105, 113 Hume v. Oldacre (1816), 1 Stark. 351 ; 18 R. R. 779 49 Humphries v. Brogden (1850), 12 Q. B. 739; 20 L. J. Q. B. 10 : 15 Jur. 124 23'.) Hunt v. Great Northern Rail. Co., [1891] 2 Q. B. 189 : 55 J. F. 648 ; 60 L. J. Q. B. 498 [C. A.] 126 v. Star Newspaper Co., Limited, [1908] 2 K. B. 309 ; 77 L. J. K. B. 732 ; 98 L. T. 629 ; 24 T. L. R. 452 ; 52 Sol. J. 376 [C. A.] 120 Hutchinson v. York, Newcastle, and Berwick Rail. Co. (1850), 19 L. J. Ex. 296 ; 5 Ex. 343 ; 6 Rail. Cas. 580 205 Ilott r. Wilkes (1820). 3 15. & A. 304 ; 22 R. R. 400 27 Imperial Gas Light and Coke Co. (Directors) p. Broadbent (1859). 29 L. J.Ch. 377 ; 7 H. L. Cas. 600 ; 5 Jur. (N.s.) 1319 ... 87 Inchbald v. Robinson. Inchbald v. Barrington (1869), L. R. 4 Ch. 388; 20 L. T. 259; 17 W. R. 459 227 Indermaur p. Dames (1866), L. R. 1 C. P. 274 ; affirmed (1867). L. R. 2 C. P. 311 ; 36 L. J. C. P. 181 ; 16 L. T. 293 ; 15 W. R. 434 13 171. 174 xxxviii Table of Cases Cited. PAGE Irwin v. Brandwood (1861), 33 L. J. Ex. 257 ; 9 L. T. 772 ; 12 W. R. 438 ; 2 H. & C. 960 ; 10 Jur. (X.S.) 370 Ill Ismay, Imrie &; Co. r. Williamson. [1908] A. C. 437 : 77 L. J. P. C. 107 ; 99 L. T. 595 ; 24 T. L. R. 881 ; 52 Sol. J. 713 213 Ivay r. Hedges (1882), 9 Q. B. D. 80 173 Jackson v. Smithson (1846). 15 M. & W. 563 196, 197 v. Watson ,*c Sons. [1909] 2 K. B. 193 ; 78 L. J. K. B. 587 ; 100 L. T. 799 ; 25 T. L. R. 454 ; 53 Sol. J. 447 [C. A.] ... 73 Jacobs v. Seward (1872). L. R. 5 H. L. 464 ; 41 L. J. C. P. 221 ; 27 L. T. 185 272,290 J' Anson v. Stuart (1787), 1 T. R. 748 ; 1 R. R. 392 ... 104 Jenkins v. Jackson (1888). 40 Ch. D. 71 ; 58 L.J. Ch. 124 ; 60 L. T. 105 ; 37 W. R, 253 ..' 227 Jenner r. A'Beckett (1871), L. R. 7 Q. B. 11 ; 41 L. J. Q. B. 14 ; 25 L. T. 464 ; 20 W. R. 181 112 Jennings r. Randall (1799). 8 T. R. 335 : 4 R. R. 680 47 Jenoure r. Delmege. [1S91J A. C. 73 ; 55 J. P. 500 ; 60 L. J. P. C. 11 ; 63 L. T. 814 ; 39 \V. R. 388 123 Jewson v. Gatti (1886), 2 T. L. R. 441 [C. A.] 183 Job r. Potton (1875), L. R. 20 Eq. 84 ; 44 L. J. Ch. 262 ; 32 L. T. 110 272 Johnson v. Emerson (1871). L. R. 6 Ex. 329 ; 40 L. J. Ex. 201 ; 25 L. T. 337 133,140 v. Lindsay & Co.. [1891] A. C. 371 ; 55 J. P. 644 ; 61 L. J. Q. B". 90 ; 65 L. T. 97 : 40 W. R. 405 207 i'. Marshall. Sons & Co..Limited, [1906] A. C. 409 ; 75 L. J. K. B. 868 ; 94 L. T. 828 ; 22 T. L. R. 565 [C. A.] ... 215 v. Pie (1665), 1 Keb. 905, 913 47 Johnston v. Great Western Rail. Co., [1904] 2 K. B. 250; 73 L. J. K. B. 568 ; 91 L. T. 157 ; 50 W. R. 612 ; 20 T. L. R. 455 [C. A.: ' 77,78,81,82 Jones v. Boyce (1S16), 1 Stark. 493 ; 18 R. R. 812 189 r. Chapman (1*49). 2 Ex. 803, 821 270 r. Eestiniog Rail. Co. (1868), L. R. 3 Q. B. 733 ; 9 B. & S. 835 ; 37 L. J. Q. B. 214 ; 18 L. T. 902 ; 17 W. R. 28 : 27, 201 V. Gooday (1841), 10 L. J. Ex. 275 ; 8 M. & W. 146 ; 1 D. (X.S.) 50 ; 58 R. R. 649 79 i?. Heme (1759), 2 Wils. 87 110 r. Seullard, [1898] 2 Q. B. 565 ; 67 L. J. Q. B. 895 ; 79 L. T. 386 -">7 V. Williams (1843), 11 M. & W. 176 ; 12 L. J. Ex. 249 ; 63 li. li. 564 236 Jordeson v. Sutton. Southcoates and Drypool Gas Co., [1899] 2 Ch. 217 : 63 .1. P. 692 : 68 L. J. Ch. 457 : 80 L. T. 815 ... 239, 240 Joynt /•. Cycle Trade Publishing Co., [1904] 2 K. B. 292 ; 73 L. J. K. B. 752 ; 91 L. T. 155 [C. A.] 120 Judge i". Cox (1816), 1 Stark. 285 197 K. Kansas Pacific Rail. Co. t\Mihlman(1876), 17 Kansas Reports 224 : 97 Keates v. Cadogan (Karl) (1851), 10 C. B. 591 ; 20 L. J. G. P. 7<; ; 15 Jnr. 128 242 Table of Cases Cited. xxxix PAGE Keen v. Henry, [189+] 1 Q. B. 292 ; 58 J. P. 262 ; 63 L. J. Q. B. 211; 69L.T. 671 ; 42 W. R. 214 ; 9 B. 102 58 Keighley, Maxsted & Co. v. Durant,[1901] A. C.240; 70 L.J. K. B. 662 : 84 L. T. 777 55 Kelly v. Metropolitan Rail. Co., [1895] 1 Q. B. 914 ; 59 J. P. 437 ; (54 L. J. Q. B. 568 ; 72 L. T. 551 ; 43 W. R. 497 ; 14 R. 417 [C A.] 37,38, 170 Kendillon v. Maltby (1842), Car. & M. 402 ; 2 M. & Rob. 438 ... 115 Kensit /•. Great Eastern Rail. Co. (1884), 27 Ch. 1). 122 ; 54 L. J. Cb. 19 ; 51 L. T. 862 ; 32 W. R. 885 [C. A.] 247 Keyse v. Powell (1853), 2 El. & Bl. 132; 22 L. J. Q. B. 305; 17Jur. 1052 271 Kidgill r. Moor (1850), 9 C. B. 364 ; 19 L. J. C. P. 177 ; 1 L. M. & P. 131 234, 235, 248 Kimber v. Press Association, [1893] 1 Q. B. 65 ; 57 J. P. 247 ; 62 L. J. Q. B. 152 ; 67 L. T. 515 ; 41 W. R. 17 ; 4 R. 95 TC. A.] 127 Kine v. Jolly, [1905] 1 Ch. 480 ; 74 L. J. Ch. 174 ; 53 W. R. 462 [C. A.] 215 King v. London Improved Cab Co. (1889), 23 Q.B. D. 281 ; 53 J. P. 788; 58 L. J. Q. B. 456; 61 L. T. 34 ; 37 W. R. 737 [C A.] 57 v. Rose (1673), 1 Freem. 347 284 Kirk /•. Gregory (1876), 1 Ex. D. 55 ; 45 L. J. Ex. 186 ; 34 L. T. 488 ; 24 W". R. 614 281,285 /•. Todd (1882), 21 Ch. D. 484; 52 L. J. Ch. 224 ; 47 L. T. 676 ; 31 W. R. 69 [C. A.] 69 Lafond v. Ruddock (1853), 13 C. B. 813 ; 22 L. J. C. P. 217 ; 1 W. R. 371 ; 1 C. L. R. 339 ; 17 Jur. 624 97 Lambert v. Lowestoft Corporation [1901] 1 K. B. 590; 65 J. P. 326 ; 70 L. J. K. B. 333 ; 84 L. T. 237 ; 49 W. R. 316 ; 17 T. L. R. 273 34 Lamine r. Dorrell (1705), 2 Ld. Raym. 1216 289 Lancashire Waggon Co. v. Fitzhugh (1861), 30 L. J. Ex. 231 ; 3L. T. 703; 6 H. & N. 502 282,284 Lane v. Capsey, [1891] 3 Ch. 411 ; 61 L. J. Ch. 55 ; 65 L. T. 375 ; 40 W. R. 87 236 v. Cox. [1897] 1 Q.B. 415; 66 L. J. Q. B. 193 ; 76 L. T. 135; 45 W.R. 261 [C. A.] 172,224 Langridge v. Levy (1837), 6 L. J. Ex. 137 ; 2 M. & W. 519 ; 46 R. R. 689 162, 165 Latter v. Braddell and Sutcliffe (1881), 29 W. R. 239 252 Law v. Llewellyn, [1906] 1 K. B. 487 ; 70 J. P. 220 ; 75 L. J. K. B. 320 ; 94 L. T. 359 ; 54 W. R. 368 122 Lawrence v. Obee (1815). 1 Stark. 22 267 Lay v. .Midland Rail. Co. (1875), 34 L. T. 30 183 Lax r. Darlington Corporation (1879), 5 Ex. I). 28 ; 49 L. J. Ex. 105 : 41 L. T. 489 j 28 W. R. 221 [C. A.] 28 Lee v. Riley (1865), 18 C.B. (x.s.) 722; 34 L.J.C.P.212; 12L.T. 388 ; 13 W. R. 751 ; 11 Jur. (N.S.) 527 199 Leith v. Pope (1779), 2 W. Bla. 1327 137 Le Lievre r. Gould, [1893] 1 Q. B. 491 ; 57 J. P. 484 ; 62 L. J. Q. B. 353 ; 68 L. T. 626 ; 41 W. R. 468 ; 4 R. 274 [C. A.] : 39, 162, 168, 169 xl Table of Cases Cited. PAGE Lemaitre r. Davis (1881), 19 Ch. D. 281 ; 46 J. P. 324; 51 L. J.Ch. 173; 46 L. T. 407; 30 W.R. 360 242 Lemmon v. Webb, [1895] A. C. 1 ; 59 J. P. 564; 64 L. J. Ch. 205 ; 71 L. T. 647 ; 11 R. 116 227,235,236 Lethbridge v. Kirkman (1855), 25 L. J. Q. B. 89 ; 4 W. R. 90 ; 2 Jur. (N.S.) 378 96 Ley v. Peter (1858), 27 L. J. Ex. 239 ; 6 W. R. 437 ; 3 H. & X. 101 — 276 Limpus v. London General Omnibus Co. (1863), 32 L. J. Ex. 34 ; 7 L. T. 641 ; 11 VV. R. 149 ; 1 H. & C. 526 ; 9 Jur. (N.S.) 333 : 59 Lister v. Perryman (1870), L. R. 4 H. L. 521 ; 39 L. J. Ex. 177 ; 23 L. T. 269 ; 19 W. R. 9 135,137 Littledale v. Liverpool College, [1900] 1 Ch. 19 ; 69 L. J. Ch. 87 ; 81 L. T. 564; 48 W. R. 177 [C. A.] 277 London and Brighton Rail. Co. v. Truman (1885),11 App. Cas. 45 ; 50 J. P. 388 ; 55 L. J. Ch. 354 ; 54 L. T. 250 ; 34 W. R. 657 ... 26 Longmeid r. Holliday (1851), 20 L. J. Ex. 430 ; 6 Ex. 761 ... 180 Lotan r. Cross (1810), 2 Camp. 464 280,285 Lowery v. Walker, [1910] 1 K. B. 173 ; reversed, [1911] A. C. 10 ; 80 L. J. K. B. 138 ; 103 L. T. 674 ; 27 T. L. R. 83 ; 55 Sol. J. 62 ; 48 Sc. L. R. 726 175,199 Low Moor Co. r. Stanley Coal Co. (1876), 34 L. T. 186 [C. A.] ... 277 Low (or Jackson) v. General Steam Fishing Co., Limited, [1909] A. C. 523 ; 78 L. J. P. C. 148 ; 101 L. T. 401 ; 25 T. L. R. 787 ; 53 Sol. J. 763 214 Ludgater v. Love (1881), 45 J. P. 600 ; 44 L. T. 694 [C. A.] ... 165 Lumley v. Gye (1853), 2 E. ,t B. 216 ; 22 L. J. Q. B. 463 ; 1 W. R. 432 ; 17 Jur. 827 153.154 Lygo v. Newbold (1854), 9 Ex. 302 ; 23 L. J. Ex. 108 ; 2 W. R. 158 ; 2 C. L. R. 449 27,170 Lyles v. Southend-on-Sea Corporation, [1905] 2 K. B. 1 ; 69 J. P. 193 ; 74 L. J. K. B. 484 ; 92 L. T. 586 ; 21 T. L. R. 389 ; 3 L. G. R. 691 [C. A.] 99 Lynch v. Knight (1861). 9 H. L. Cas. 577 ; 5 L. T. 291 ; 8 Jur. (N.S.) 724 ... 108,109 v. Nurdin (1841), 1 Q. B. 29 ; 10 L. J. Q. B. 73 ; 4 P. & D. 672 ; 5 Jur. 797 ; 55 R. R. 191 18, 180, 181 Lyon v. Fishmongers' Co. (1876). 1 App. Cas. 662 ; 46 L. J. Ch. 68 ; 35 L. T. 569 ; 25 W. 11. 165 10,221 M. Machado r. Fontes, [1897] 2 Q. B. 231 ; 66 L. J. Q. B. 542 ; 76 L. T. 588; 45 W. K. 565 [C. A.] 43,44 Macintosh v. Dun, [1908] A. C. 390; 77 L. J. P. C. 113 ; 99 L. T. 64 ; 24 T. L. R. 705 ; 52 Sol. J. 580 123 Mackay v. Ford (I860), 29 L. J. Ex. 404 ; 2 L. T. 514 ; 8 W. R. 506 ; 5 H. & N. 792 ; 6 Jur. (N.S.) 587 ; . 122 McCartney r. Londonderry and Lough Swilly Railway, [1904] A. C. 301 ; 73 L. J. P. C. 73 ; 91 L. T. 105 246 McDowall /•. Great Western Railway, [1903] 2 K. B. 331 ; 72 L. J. K. B. 752 ; 88 L. T. 825 [C. A.] 18. 184 M'Gregor '•. Thwaitea (1824), 2 L.J. K. B. 217; 3 B. & C. 3:.: 4 Dow. & Kv. 695 ; 27 R. R. 274 116 McKenzie v. Hardinge (1906), 23 T. L. R. 15 145 .McKinnon r. lVnson. 8 Ex. 319 33 MT'herson r. Daniels (1*30). 8 L. .1. (O.S.) K. B. 14 ; 10 B. & C. 263 ; 5 M. k Ry. 251 ; 34 R. R. 397 115, 118 Table of Cases Cited. xli PAGE McQuire o. Western Morning News Co., [1903] 2 K. B. 100 ; 72 L. J. K. B. 612 ; SS L. T. 757 ; 51 W. R. 689 [C. A.] 119 Madras Rail. Co. v. Zemindar of Carvatenagaram (1874), L. R. llnd. App. 364 195 Magdalena Steam Navigation Co. v. Martin (1859). 2 El. & El. 94 ; 28 L. J. Q. B. 310 : 7 W. R. 598 ; 5 Jnr. (N.S.) 1260 46 Manby v. Scott (1663). 1 Sid. 109 17 Manchester Corporation v. Williams, [1891] 1 Q. B. 94 ; 54 J. P. 712 ; 60 L. J. Q. B. 23 ; 63 L. T. 805 ; 39 W. R. 302 ... 45. 105, 107 Mangena p. Wright, [1909] 2 K. B. 958; 78 L. J. K. B. 879; 100 L. T. 960; 25 T. L. R. 534 : 53 Sol. J. 485 127 Manley v. Field (1859), 7 C. B. (n.s.) 96 ; 29 L. J. C. P. 79 ; 6 Jnr. (N.s.)300 148 Mann /•. Ward (1892). 8 T. L. R. 699 19 Manzoni v. Douglas (1880), 6 Q. B. D. 145 ; 45 J. P. 291 ; 50 L. J. Q. B. 289 ; 29 W. R. 425 14, 1S5 Markcv r. Tolworth Joint Isolation Hospital District Board, [1900] 2 Q. B. 454 ; 64 J. P. 648 ; 69 L. J. Q. B. 738 ; 83 L. T. 28 ; 16 T. L. R.411 99 Marks v. Frogley, [1898] 1 Q. B. 888 ; 67 L. J. Q. B. 605 ; 78 L. T. 607; 46 W. R. 548 [C.A.] 256 r. Samuel, [1904] 2 K. B. 287 ; 73 L. J. K. B. 587 ; 90 L.T. 590 : 53 W. 1!. 88 : 20 T. L. R. 430 Ill Marsh o. Joseph, [1897] 1 Ch. 213 ; 66 L. J. Ch. 128 : 75 L. T. 558 : 45 W. R. 209 [C. A.] 55 V. Loader (1863), 14 C. B. (H.S.) 535 ; 1 1 W. R. 784 ... 261 Marshall r. York, Newcastle and Berwick Rail. Co. (1851), 11 C. B. 655 ; 21 L. J. C. F. 34 : 16 Jur. 124 [C. A.] ... 39 Martin, Ex parte (1879), 4 Q. B. I). 212 ; affirmed sub now. Martin v. Bannister (1879), 4 Q. B. 1). 491 : 48 L. J. Q. B. 677 ; 28 W.R. 143 [C. A.] 87 d. Tregonwell r. Strachan (1743). 5 T. R. 107 n ; 6 Bro. P. C. 319 ; 1 Wils. 266; 2 Stra. 1179 ; 2 R. R. 552 n 274 Martindale v. Smith (1841). 1 Q. B. 389 ; 10 L.J. Q. B. 155 ; lG.k 1). 1 ; 5 Jur. 932 ; 55 R. R. 285 288 Mason v. Caesar (1676), 2 Mod. 66 236 v. Hill (1832). 1 L. J. K. B. 107 ; 3 B. & Ad. 304 ; 39 R. R. 354 248 Masper and Wife v. Brown (1875), 1 C. P. 1). 97 ; 45 L. J. C. F. 203 ; 34 L. T. 254; 24 W. R. 469 265 Mathews v. Loudon Street Tramways Co. (18S6), 52 J. 1'. 771 ; 58L. J.Q.B. 12; 60 L. T. 47 ' 183 May v. Burdett (1846). 9 Q. B. 101 ; 16 L. J. Q. B. 64 ; 10 Jur. 692 ; 72 R. R. 189 196,197 Mayhew V. Derrick (1849), 7 C. B. 229 ; 18 L. J.C. F. 179 ; 13 Jur. 1078 290 Mears v. London and South Western Rail. Co. (1862), 11 C. B. (N.S.) 854 ; 31 L. J. C. F. 220 ; 6 L. T. 190 284 Median,/, The, [1900] A. C. 113 : 69 1.. J. 1'. 35 ; 82 L. T. 95 : 48 W. R. 398 ; 9 Asp. M. C. 41 80 Mee v. Cruikshank (1902), 66 J. 1 J . 89 ; 86 L. T. 706 253 Merest r. Harvey (1814). 5 Taunt. 442 ; 1 Marsh. 139 ; 15 R. K. 548 : 85 Mcrivalc r. Carson (1887), 20 Q. 15. D. 275 ; 52 J. P. 261 ; 58 L. T. 331 ; 36 W. R. 231 [C. A] 119.120 Merryweather r. Nixon. 8 T. R. L86 : 16 R. R. 810 49 Mersey Docks (Trustees) v. Gi!>bs(1866), L. R. 1 H. L. 93 ; 35 L. J. Ex. 225 ; 12 Jur. (N.8.) 571 ; 14 L. T. 697 ; 14 W. H. 872 ... 46 Metropolitan Association, etc. ».Petch(1858), 5 C. B. (x.s.) 504; 27L.J. C. P. 330; 4 Jur. (X.S.) 1000 234 xlii Table of Cases Cited. PAGE Metropolitan Asylums District v. Hill (1881), 6 App. Cas. 193; 45 J. P. 664 ; 50 L. J. Q. B. 353 ; 44 L. T. 653 ; 29 W. R. 617 25,26,227 Metropolitan Bank v. Pooley (1885). 10 App. Cas. 210 ; 49 J. P. 756 ; 54 L. J. Q. B. 449 ; 53 L. T. 163 ; 33 W. R. 709... 139—141 Metropolitan Rail. Co. v. Jackson (1877), 3 App. Cas. 193 ; 47 L.J. C. 1 J . 303 ; 37 L. T. 679 ; 26 W. R. 175 187 Metropolitan Saloon Omnibus Co. v. Hawkins (1859), 28 L. J. Ex. 201 ; 4 H. & N. 87 ; 7 W. R. 265 ; 5 Jnr.(N.S.) 226 106 Meux v. Great Eastern Rail. Co.. [1895] 2 Q. B. 387 ; 59 J. P. 662 ; 64 L. .). Q. B. 657 ; 73 L. T. 247 ; 43 W. R. 680 ; 14 R. 620 [C. A.] 39,177 Midland Insurance Co. v. Smith (1881), 6 Q. B. D. 561 ; 45 J. P. 699 ; 50 L. J. Q. B. 329 : 45 L. T. 411 ; 29 W. R. 850 ... 30 Miller r. David (1874), L. R.9 C. P. 118 ; 43 L. J. C. P. 84 ; 30L.T. 58; 22 W.R, 332 112 r. Dell. [1891] 1 Q. B. 468 ; 60 L. J. Q. B. 404 ; 63 L. T. 693 ; 39 W. R.342[C. A.] 96,287 v. Hancock, [1893] 2 Q. B. 177; 57 J. P. 758; 69L.T.214; 41 W. R. 578 ; 4 R. 478 [C. A.] 173.224 Miner v. Gilmour (1858). 12 Moo. P. C. C. 131 ; 7 W. R. 328 ... 245 Mitchell v. Crassweller (1853), 13 C. B. 237 ; 22 L. J. C. P. 100 ; 1 W. R. 153 ; 17 Jur. 716 58 Mogul Steamship Co., Limited r. McGregor, Gow & Co., [1892] A. C. 25 ; 56 J. P. 101 ; 61 L. J. Q. B. 295 ; 66 L. T. 1 ; 40 W. R. 337 ; 7 Asp, M. C. 120 157 Monson b. Tussaud's, Limited. Monson v. Tussaud (Louis), [1894] 1 y. B. 671 ; 58 J. P. 524 ; 63 L. J. Q. B. 454 ; 70 L. T. 335 ; 9R. 177 [C. A.] 88,108 Montgomery v. Thompson, [1891] A. C. 217 ; 55 J. P. 756 ; 60 L. J. Ch. 757; 64 L. T. 748 159 Moore /•. Meagher (1807), 1 Taunt. 39 ; 3 Smith, 135 ; 9 R. R. 702 109 v. Robinson (1831). 1 L. .1. K. B. 4 ; 2 B. & Ad. 817 ... 285 Mordaunt e. Mordaunt (1870), L. R. 2 P. & D. 102 47 Morgan r. Lingen (1863), 8 L. T. 800 106 r. London General Omnibus Co. (1884), 13 Q. B. D. 832 : 48 J. P. 503 ; 53 L. J. Q. B. 352 ; 51 L. T. 213 ; 32 W. R. 759 [C. A.] 211 /■. Vale of Neath Rail. Co. (1865), L. R. 1 Q. B. 149 ; 5 B. & S. 736 ; 35 L. J. Q. B. 23 ; 13 L. T. 564 ; 14 W. R. 144 : 204, 206 Mortimer v. Cradock (1843), 12 L. J. C. P. 166 ; 7 Jur. 45 ; 61 R. R. 784 80 Mostyn v. Pabrigas (1774), 1 Sm. L. C. 628 ; 1 Cowp. 161 43, 48 Moulton v. Edmonds (1859), 29 L. J. Ch. lsl ; S \Y. R. 153 ; 6 Jur. (x.s.) 305 ; 1 De G. F. & J. 246 96 Mullett r. Mason (1866), L. R. 1 C. P. 559 ; 35 L. J. C. P. 299 ; 14 L. T. 558 ; 14 W. R. 898 ; 12 Jur. (n.s.) 547 ; 1 H. &. R. :::» 82 Mumford r. < >xford, Worcester and Wolverhampton Rail. Co. (1856), 25 L. J. Ex. 265 234 Monster v. Lamb (-1883), 11 Q. B. O. 588 ; 47 J. P. 805 ; 52 L. J. Q. 11. 726 ; 49 L. T. 252 ; 32 W. li. 248 [O. A.] 122 Murray >: Fitzgerald, [1906] 2 I. K. 251 [C. A.] 147, 149 V. Hall (LSl'.i), 7 C. B. 441 ; 18 L. J. C. P. 161 ; 13 .Jur. 262 272 Masgrave v. Pulido (1879), 5 App. Cas. 102; 49 L. J. P. C. 20: 41 L. T. 629 : 28 W. R. 373 48 Table of Cases Cited. xliii N. PAGE National Phonograph Co., Limited r. Edison Bell Consolidated Phonograph Co., Limited, [1908] 1 Ch. 335 ; 77 L. J. Ch. 218 ; its L. T. 291 ; 24 T. L. K. 201 [C. A.] 155 National Telephone Co. v. Baker, [1893] 2 Ch. 185 ; 57 J. P. 373; 62 L. .1. Ch. 699 : 68 L. T. 283 ; 3 P. 318 192 Nelson r. Liverpool Brewery Co. (1877), 2 C. P. D. 31 1 ; 46 L. J. C. P. 675: 25W.R.877 221.22:5 Netherlands South African Rail. Co. t\ Fisher (1901), 18 T. L. P. 116 45 Nevill r. Fine Art and General Insurance Co., [1897] A. C. 68; 61 J. P. 500 ; 66 L. J. Cj. B. 195 ; 75 L. T. 606 108 Nicolls /•. Bastard (183.-)), 5 L. J. Ex. 7 ; 2 C. M. & R. 659; 1 Tyr. & G. 156 ; 1 Gale, 295 289 Nichols v. Marsland (1876). L. P. 10 Ex. 255 ; on appeal, 2 Ex. 1). 1 : 46 L. J. Ex. 174 ; 35 L. T. 725 ; 25 W. K. 173 [C. A.] : 193, 194 Nisbet r. Rayne and Burn, [1910] 2 K. B. 689 ; 80 L. J. K. B. 84 ; 103 L. T. 178 ; 26 T. L. R. 632 ; 54 Sol. J. 719; 3 B. W. C. C. 507 [C. A.] 214 Norris v. Baker (1616), 1 Poll. Pep. 393, fol. 15 236 Northampton Corporation r. Ward (1745), 1 Wils. 107; 2 Str. 1238 : 271 North-Eastern Rail. Co. v. Elliott (1860), 29 L. J. Ch. 808 241 Notley y. Buck (1828), 6 L. J. (o.S.) K. B. 271 ; 8 B. & C. 160 ; 2 M. & P. 68 289 Nugent v. Smith (1876), 1 C. P. 1). 423 ; 45 L. J. C. P. 697 ; 34 L. T. 827 ; 24 W. P. 237 ; 3 Asp. M. C. 198 [C. A.] ... 193 o. Oakey & Son r. Dalton (1887), 35 Ch. U. 700 ; 56 L. J. Ch. 823 ; 57 L. T. 18 ; 35 W. P. 709 70 Ocean Accident and Guarantee Corporation v. II ford Gas Co., [1905] 2 K. B. 49:i ; 74 L. J. K. B. 799 ; 93 L. T. 381 ; 21 T. L. P. 610 [C. A.] 271 Oldham v. Peake (1774), 2 W. Bl. 959 110 Olliett p. Bessey (1682), 2 T. Jo. 214 24 Onslow v. Home (1771), 2 W. Bl. 750 ; 3 Wils. 177 109 ( >sborn w. ( iillett (1873). L. K. 8 Ex. 8s ; 42 L. J. Ex. 53 ; 28 L. T. 197 ; 21 W. P. 409 29 Osborne c. Chocqueel, [1896] 2 Q. B. Km ; 65 L. ,J. Q. P. 534; 74 L. T. 786 ; 44 W. R. 575 196. 197 Oughton v. Seppings (1S30), 8 L. J. (o.S.) K. B. 394 ; 1 B. & Ad. ' 241 ; 35 P. R. 284 289 Oxley r. Watts (1785), 1 T. R. 12 ; 1 P. R. 133 286 Page v. Cowasjee Eduljee (1866), L. R. 1 P. ('. 127: 14 L. T. 176; 12 Jar. (N.8.) 361 288 Panton r. Williams (1841), 2 Q. B. 169 ; 10 L. J. Ex. 545 ; 1 G. ,V: 1). 501 : 57 P. R. 631 135 Paris r. Lew (1860). 9 C. B. (N.S.) 342 ; 30 L. J. C. P. 11 : 3 L. T. 323; frW. R. 71; 7 Jur. (N.S.) 289 119 Parkins i\ Scott | 1862), 31 L. J. Ex. 331 ; 6 L. T. 394 ; 10 W. R. 562 ; 1 H. & C. 153 ; 8 Jar. (N.S.) 593 115 xliv Table of Cases Cited. PAGE Partridge v. Scott (1838), 7 L. J. Ex. 101 ; 3 M. & W. 220 ; 49 R. R. 578 241 Pasley v. Freeman (1789). 3 T. R. 51 ; 2 Sm. L. C. 68 ; 1 R. R. 634 : 1G2, 163 Patrick r. Colerick (1838), 7 L. J. Ex. 135 ; 3 M. & W. 483 ; 49 R. R. 696 268 Paul r. Snmmerhayes (1879). 4 Q. B. D. 9 ; 48 L. J. M. C. 33 ; 39 L. T. 574 ; 27 W. R. 215 ; 14 Cox C. C. 202 267 Payne v. Rogers (1794). 2 H. Bl. 350 ; 3 R. R. 415 222 Pease r. Chaytor (1863). 3 B. & S. 620 ; 32 L. J. M. C. 121 ; 8 L. T. 613 : 11 W. R. 563 ; 9 Jur. (N.s.) 664 23 Peek r. Gurney (1873), L.R. 6 H. L. 377 ; 43 L. J. Ch. 19 ; 22 W.R. 29 ... ... ••- -•• ••• ••• ••• 1^4 Peer v. Humphrey "(1835), 4 L. J. K. B. 100 ; 2 A.&E. 495 ; 4 N. & M. 430 ; 1 H. & W. 28 ; 41 R. R. 471 2S2 Penn v. Ward (1835), 2 C. M. & R. 338 256 Pennv o. Wimbledon District Council. [1899] 2 Q. B. 72 ; 63 J. P. 406 ; 68 L. J. Q. B. 704 ; 80 L. T. 615 ; 47 W. R. 565 [C. A.]... 67 Penruddock's Case (1598), 5 Co. Rep. 100 b 232 Petrel, The, [1893] P. 320 ; 62 L. J. P. 92 ; 70 L. T. 417 ; 1 R. 651 ; 7 Asp. M. C. 434 207 Phillips v. Barnet (1876), 1 Q. B. D. 436 ; 45 L. J. Q. B. 277 ; 34 L. T. 177 : 24 W.R. 345 15 r. Eyre (1870). L. li. 4 Q. B. 225 ; 38 L. J. Q. B. 113 : 19 L. T. 770 ; 17 W. R. 375 ; 9 B. & S. 343 ; affirmed, L. R. 6 Q. B. 1 ; 40 L. J. Q. B. 28 ; 22 L. T. 869; 10 B. & S. 1004 48 v. Homfrav (1883). 24 Ch. D. 439 ; 52 L. J. Ch. 833 : 49 L. T. 5 ; 32 W. R. 6 TC. A.] 69 v. .Tansen (1798), 2 Esp. 624 112 v. South Western Rail. Co. (1879). 4 Q. B. D. 406 [C. A.]. ..77, 81 Pickard r. Smith (1861). 10 C. B. fx.s.) 470 ; 4 L. T. 470 64 Pictou (Municipality of) v. Geldert, [1893] A. C. 524 ; 63 L. J. P. C. 37 : 69 L. T. 510 : 42 W. R. 114 ; 1 R. 447 33 Pinet (F.) et Cie r. Maison Louis Pinet, Limited. [1898] 1 Ch. 179 ; 67 L. J. Ch. 41 ; 77 L. T. 613 ; 46 W. R. 506 ; 14 T. L. R. 87 ; 15 R. P. C. 65 158, 159 Pippin r. Sheppard (1822), 11 Price. 400 ; 25 R, H. 746 39 l'ittard v. Oliver, [1891] 1 Q. B. 474 ; 55 J. P. 100 ; 60 L. J. Q. B. 219 ; 64 L. T. 75S ; 39 W. R. 311 [C. A.] 12* Policy r. Fordham, [1904] 2 K. B.345 : 68 J. P. 321; 73L.J.K. B. 687 ; 90 L. T. 755 ; 53 W. H. 188 ; 20 T. L. R. 435 ...23. 99 /•. Fordham (No. 2) (1904), 68 J. P. 504 ; 91 L. T. 525 ; 20 T. L K. 639 23 Polsue and Aineri, Limited v. Rushmer, [1907] A. C. 121 ; 76 L. J. Ch. 365 : 96 L. T. 510; 23 T. L. li. 362 228 Pomfret v. Rycroft (1671), 1 Saund. 321 268 Pontine v. Noakes, [ 1894] 2 Q. 15. 281 ; 58 J. P. 559 ; 63 L. J.Q.B. 519 ; 70 L. T. 842 : 42 W. R. 506 ; 10 R. 265 195 PoppleweU v. Bodkinson (1869), L. R. 4 Ex. 218 ; 38 L. J. Ex. 126 ; 20 L. T. 578 ; 17 W. R. 806 239.240 Potter r. Faulkner (1861), 1 IS. .V S. 800; 31 L. J. Q. B. 30: 5 L. T. 455 ; in W. R. 93 ; 8Jur. (N.s.) 259 208 Poulton r. London and Southwestern Rail. Co. (1867). L. R. 2 Q. B. :.:;i ; 36 L. J. Q. 15. 291 ; 17 L. T. 11 ; 16 W. R. 309 ; 8 B. & S. 616 59 Powell r. Fall (issii). :, n. 15. ]). 597 : 19 L. J. Q. B. 428 ; 43 L. T. 562 [C. AJ -'nl Praed p. Graham (1889). 24 Q. B. D. 53; 59 L. J. Q. B. 230: 38 W. R. 103 [C. A.] 77 Table of Cases Cited. xlv PAGE Trefoil taine r. Grenier, [1907] A. C. 101 ; 76 L.J. P. 0. 4 ; 95 L.T. 623 ; 23 T. L. R. 27 ; 13 Manson, 401 166 Preston v. Luck (1881), 27 Ch. D. 497 88 Pretty r. Bickmore (1873), L. R. 8 C. P. 101 ; 28 L. T. 701 ; 21 W. R. 733 221,223 Priestley v. Fowler (1837), 7 L. J. Ex. 12 ; 3 M. & W. 1 ; M. & H. 305 ; 1 Jur. 987 ; 49 R. R. 495 205 Prudential Assurance Co. v. Knott (1875). L. R. 10 Ck. 112 ; 11 L..1. Cb. 192 ; 31 L. T. 866 ; 23 W. R. 249 89 Pullman v. Hill & Co., [1891] 1 Q. B. 524 ; GO L. J. Q. B. 299 : 64 L. T. 691 ; 39 W. R. 263 [C. A.] 115,12:; Enrsell v. Horn (1838), 8 A. & E. 602 251 Pym v. Great Northern Rail. Co. (1863), 1 B. & S. 396 ; 32 L. J. Q. B. 377 ; 8 L. T. 731 ; 11 W. R. 922 ; 10 Jur. (N.S.) 199 ...73. 71 Q. Quarman v. Burnett (1810), 9 L. J. Ex. 308 ; 6 M. & W. 499 ; 1 Jur. 969 ; 55 R. R. 717 57 Quartz Hill Gold Mining Co. v. Eyre (1883), 11 Q. B. D. 671 ; 52 L. J. Q. B. 1SS ; 19 L. T. 219 ; 31 W. R, 668 [C. A.]: 133, 141 Quinn v. Leathern, [1901] A. C. 195 ; 65 J. P. 708 ; 70 L. J. P. C. 76.; 85 L. T. 289 ; 50 W. R. 139 15, 153—157 E. R. v. Burdett (1820), 1 B. & Aid. 95 ; 22 R. R. 539 114 - v. Ivens (1835), 7 C. & P. 213 268 - v. Jackson, [1891] 1 Q. B. 671 ; 55 J. P. 246 ; 60 L. J. Q. B. 316 ; 64 L. T. 679 ; 39 W. R. 407 256 - v. Pease (1832). 2 L. J. M. C. 26 ; 4 B. & Ad. 30 ; 1 Nev. & M. 690 ; 38 R. R. 207 219 - v. Rosewell (1699), 2 Salk. 259 236 - r. Train (1862), 2 B. & 8. 640 ; 31 L. J. M. ('. 169 ; 10 W. R. 539 ; 3 F. & F. 22 ; 8 Jur. (N.S.) 1151 ; 9 Cox C. C. 180 ... 219 - v. Ward (1836), 4 A. & E. 384 219 Radley r. London and North Western Rail. Co. (1876), 1 App. Cas. 754 ; 46 L. J. Ex. 573 ; 35 L. T. 637 ; 25 W. R, 147 181 Ratcliffe /■. Evans, [1892] 2 Q.B. 524 ; 56 J. P. 837 ; 61 L. J. Q. B. 535 ; 66 L. T. 794 ; 40 W. R. 578 [C. A.] 109, 130 Rawlingsr. Till (1837), 3 M. & W. 28 251 Rawstron v. Taylor (1855), 25 L. J. Ex. 33 ; 11 Ex. 369 217 Read v. Coker (1853), 13 C. B. 850 ; 22 L. J. C. P. 201 ; 1 W. R. 413; 1 C. L. R. 746; 17 Jur. 990 250 v. Edwards (1864), 34 L. J. C. P. 31 ; 11 L. T. 311 ; 5 N. R. 18 ; 17 C. B. (N.S.) 215 284 r. Great Eastern Rail. Co. (1868), L. R. 3 Q. B. 555 ; :i7 L. J. Q. B. 278 ; 18 L. T. 82 ; 16 W. R. 1010 ; 9 B. & S. 714 ...73, 74 Readhead v. Midland Bail. Co. (1869). L. R. 4 Q. B. 379 ; 38 L. J. Q.B. 169 170,171 Rgddaway v. Banham, [1896] A. C. 199 ; 65 L. J. Q. B. 381 ; 71 L.T. 289 ; 11 W. R. 63S 158 v. Bentham Hemp-Spinning Co., [1892] 2 Q. 15. 639; 67 L.T. 301 [C. A.] 158 Reddie v. Scoolt (1794), 1 Peake, 240 119 Redgrave v. llurd (1881), 20 Ch. 1). 1 : 51 L. J. Cb. 118; 45 L. T. 489 ; 30 W. R. 251 [C. A.] 161 xlvi Table of Cases Cited. PAGE Reed v. Nutt (1890), 24 Q. B. D. 669 ; 54 J. P. 599 ; 59 L. J. Q. B. 311 ; 62 L. T. 635 ; 38 W. R. 621 264 Reedie v. London and North Western Rail. Co., Hobbit v. Same (1849). 20 L. J. Ex. 65 ; 4 Ex. 244; 6 Rail. Cas. 184 66 Reinhardt v. Mentasti (1889), 42 Ch. D. 685 ; 58 L. J. Ch. 787 ; 61 L. T. 328 ; 38 W. R. 10 229 Rhodes v. Smethurst (1838), 7 L. J. Ex. 273 ; 4 M. & W. 42 ; 1 H. & H. 237 ; 2 Jur. 893 ^ Rice r. Reed, T1900] 1 Q. B. 54 ; 69 L. J. Q. B. 33 ; 81 L. T. 410 [C.A.] ... 290 Rich v. Basterfield (1847). 4 C. B. 783 ; 6 L. J. C. P. 273 ; 2 Car. & K.257; HJnr. 696; 72 R. R. 716 232 Richards v. Jenkins (1886), 17 Q. B. D. 544 275 Richardson v. Atkinson (1723), 1 Stra. 576 281 v. Silvester (1873). L. R. 9 Q. B. 34 ; 43 L. J. Q. B. 1 : 29 L. T. 395 ; 22 W. R. 74 163 Robbins v.. Tones (1863). 15 C. B. (N.S.) 221 220 Roberts v. Roberts (1864), 5 B. &S. 384 ; 33 L. J. Q.B. 249 ; 10L.T. 602 ; 12 W. R. 909 ; 10 Jur. (N.S.) 1027 109 v. Rose (1865). L. R. 1 Ex. 82 ; 35 L. J. Ex. 62 ; 13 L. T. 471 ; 14 W. R. 225 ; 4 H. & C. 103 ; 12 Jur. (N.S.) 78 235 Rodgers r. Nowill (1847). 5 C. B. 109 ; 17 L. J. C. P. 52 ; 11 Jur. 1039 158,159 Romney Marsh (Bailiffs) v. Trinity House (1870), L. R. 5 Ex. 204 : 17 Roope v. D'Avigdor (1883), 10 Q. 13. D. 412 ; 47 J. P. 248 ; 48 L. T. 761 30 Rooth *. Wilson (1817), 1 B„ & A. 59 285 Rose r. Buckett, [1901] 2 K. B. 449 ; 70 L. J. K. B. 736 ; 84 L. T. 670 ; 50 W. R. 8 [C. A.] 71 Rosewell v. Prior (1702), 2 Salk. 460 231,232 Rourke v. White Moss Co. (1877), 2 C. P. 1). 205 ; 46 L. J. C. P. 283 ; 36 L. T. 49 ; 25 W. R. 263 [C. A.] 58 Rowbotharn v. Wilson (1860). 30 L. J. Q. B. 49; 2 L. T. 642; S II. L. Cas. 348 ; 6 Jur. (N.s.) 965 239 Rowland v. Wright (1908). 77 L. J. K. B. 1071 ; 24 T. L. R. 852 [C. A.] ■•• ••• 214 Royal Aquarium and Summer and Winter Garden Society r. " 1'urkinson. [1892] 1 Q. B. 431 : 56 -I. P. 404 ; 61 L. J. (I B. 409 ; 66 L. T .513 ; 40 W. R. 450 [C. A.] 124, 128 Royal Baking Powder Co. v. Wright, Crossh-y & Co. (1898), " 15 R. P. C. t;77 HI Ruabon Brick and Terra Cotta Ch. '•. Great Western Kail. <':>.. | 1893] 1 Ch. 427 ; 62 L. J. Ch. 483 ; 68 L. T. 110 ; 41 W. R. L18; 2R. 237 240 Rushmer /•. Polsne and Altieri. Limited (1905), 21 T. L. R. is:; ... 230 Rnssell v. Men of Devon, 2 T. R. 667 33 v. Shenton (1842), 3 Q. B. 449 : 11 L. J. Q. B. 289 : 2 G.& D. 573 ; 6 Jur. 1059 ; 61 R. R. 249 231,232 Rust '■. Victoria Graving Dock ('<>. ami London ami St. Katherine's Dock Co. ( 1887), 36 Ch. D. L13 ; 56 L.T.216 : 35 W. R.673... 7> Ryanv. Clark (1849), 14 Q.B. 65 269,270 Rylands v. Fletcher (1868). L. R. 3 II. L. 330 : 37 L. J. Ex. 161 : " 19 I.. T. 220 191, 193 »ve v. Bole, [1901 | 2 K. B. 1 ; 70 L. J. K. B. 455 ; 84 L. T. 647 : 19 \V. R. 17:; [C. A.] 115 Table of Cases Cited. xlvii PAGE Sadler v. Great Western Rail. Co., [1*1)6] A. C. 450 ; 05 L. J. Q. B. 462 : 74 L. T. 561 ; 45 W. R. 51 50 i- South Staffordshire and Birmingham District Steam Tram- ways Co. (1889), 23 Q. B. D. 17 ; 53 J. P. 694 ; 58 L. J. Q. B. 421; 37 W. R. 582 [C. A.] ■■• 252 St Helen's Smelting Co. v. Tipping (1865). 35 L. .1 . Q. B. 66 ; 12 L. T. 776 ; 13 W. H. 1083 ; 11 H. L. Cas. 642 ; 11 Jur. (N.S.) 785 : 228, 229 Salt Union v. Brunner, Mond & Co., [1906] 2 K. B. 822 ; 76 L. J. K. B. 55 ; '.15 L. T. 647; 22 T. L. R. 835 ... 240 Saunders v. Holborn District Board of Works, [1895] 1 Q. B. 64 ; 59 .1. 1\ 453; 64 L. J. Q. B. 101 ; 71 L. T. 51!) ; 43 W. R. 26 ; 15 R. 25 33 v. Merryweather (1865), 35 L. J. Ex. 115 ; 13 W. R. 814 ; 3 H. & C. 902 ; 11 Jur. (N.S.) 655 •• 27 » SaxJ>v ». Manchester and Sheffield Rail. Co. (1869), L. R. 4 C. P, 198 ; 38 L. J. C. P. 153 : 1!) L. T. 640 ; 17 W. R. 293 Savers v. ( tollyer (1884). 28 Ch. D. 103 ; 4'J J. P. 244 ; 54 L. J. Ch. 1 51 L. T. 723 ; 33 W. R. 91 Scott v. London Dock Co. (1865), 34 L. J. Ex. 220 ; 13 L. T. 148 ; 13 W. R. 410 : 3 11. & C. 596 ; 11 Jur. (N.S.) 204 : 185, 186 v. Nixon (1S43), 3 Dru. & War. 388 ; 2 Con. & L. 185 ; 6Ir.Eq.R.8 96 V. Sampson (1882), 8 Q. B. D. 491 ; 46 J. P. 408 ; 51 L. J. Q. B. 380: 46 L. T. 412; 30 W. R. 541 84 r. Shepherd (1763), 2 Win. Bl. 892 ; 3 Wils. K. B. 403 ... 19 r. Stansfield (1868), L. R. 3 Ex. 220 ; 37 L. J. Ex. 155 ; 18 L. T. 572; 16 W. R. 911 TC A.] 21,122 Seaman v. Netherelift (1876), 2 0. P, D. 53 ; 16 L. J. C. P. 128; 35 L. T. 784 ; 25 W. R. 159 [O. A.] 122 Semayne's Case (1605), 5 Co. Rep. 91 c Senior v. Ward (1859), 1 El. & El. 385 ; 28 L. J. Q. B. 139 ; 7 W. R 261 ; 5 Jur. (N.S.) 172 Seroka v. Kattenburg (1886), 17 Q. B. D. 177 ; 55 L. J. Q. B. 375; 54 L. T. 649 ; 34 W. R. 543 51,52 Serrao v.Noel (1885). 15 Q. B. D. 549 [C. A.] 88 Sharp v. Powell (1S72), L. R. 7 C. P. 253 ; 41 L. J. C. P. 95 ; 26 L.T. 436; 20 W. R. 584 17 Shelter v. City of London Electric Lighting Co., Meux's Prewery Co. v. City of London Electric Lighting Co.. [1895] 1 Ch. 2S7 ; 64 L.J. Ch. 216; 72L.T.34;43 W. R. 238 ; 12 11. 112 [C.A.] : 88 Shepheard v. Whitaker (1875), L. R. 10 C. P. 502 ; 32 L. T. 402 ... 107 Simmons r. Mitchell (1880), 6 App. Cas. 156 ; 45 .1. P. 237 ; 50 L.J. P. C. 11 ; 43 L. T. 710 ; 29 W. R. 401 HI Simpson v. Savage (1856), 1 C. P. (N.S.) 347 ; 26 L. J. C. P. 50 ; 5 W. R. 147 ; 3 Jur. (N.S.) 161 234 " Singer " Machine Manufacturers v. Wilson (1877), 3 App. Cas. 3/6 ; 47 L. J. Ch. 481 ; 38 L. T. 303 ; 26 W. R. 664 158, 159 Six Carpenters' Case (1611), 1 Sm. L. C. 132 ; 8 Coke, 146a : 268, 269 Slater v. Svvann (1730), 2 Stra. 872 283 Smith v. Baker (1873), L. R. 8 C. P. 350 ; 42 L. J. C. P. 155 ; 28 L. T. 637 289 V. Baker & Sons, [1891] A. C. 325 ; 55 ^. P. 660 ; 60 L. J. Q. B. 683 ; 65 L. T. 467 ; 40 W. R. 392 187, 189 r. Ckadwick (1884), 9 App. Cas. 187 ; 48 -I. P. 644 ; 53 L. J. Ch. 873 ; 50 L. T. 697 ; 32 W. R. 6S7 163 v. Giddy, [1904] 2 K. 15. 448 ; 73 L. J. K. B. 894 ; 91 L. T. 296 : 20 T. L. R. 596 22- r. Kaye (1904), 20 T. L. R. 261 14o v. Lluyd (1854). 23 L. J. Ex. 194 ; 9 Ex. 562 ; 2 C. L. R. 208 ; 2 W. R. 271 2/7 232 ss 268 205 xlviii Table of Cases Cited. PAGE Smith r. London and South Western Rail. Co. (1870), L.R. 6 C. P. 14 ; 40 L. J. C. P. 21 ; 23 L. T. 678 ; 19 W. R. 230 : 27, 201, 202 V. Man-able (1843), 12 L. J. Ex. 223 ; 11 M. & W. 5 ; Car. & M. 479 172 r. Thackerah (1866), L. R. 1 C. P. 564 : 35 L. J. C. P. 276 ; 14 L. T. 761 : 14 W. R. 832 ; 12 Jur. (N.S.) 545 ; 1 H.& R. 615 : 239 Snag r. Gee (1597), 4 Co. Rep. 16 a 110 Soltau v. De Held (1851), 21 L. J. Ch. 153 ; 16 Jur. 326 ; 2 Sim. (K.S.)133 89,217 Southee v. Denny (1847), 17 L. J. Ex. 151 ; 1 Ex. 196 112 Sonth Hetton Coal Co. v. North Eastern News Association, [1S94] 1 Q. B. 133 : 58 J. P. 196 ; 63 L. J. Q. B. 293 ; 68 L. T. 844 ; 42 W. R. 322 ; 9 R. 240 [C. A.] 105,108 South Staffordshire Water Co. v. Sharman, [1896] 2 Q. B. 44 ; 65 L. J. Q. B. 460 ; 74 L. T. 761 ; 44 W. K. 653 288 Spackman v. Foster (1883), 11 Q. B. 1). 99 : 47 J. P. 455 ; 52 L. J. Q. B. 418 ; 48 L. T. 670 ; 31 W. R. 548 96 Spark r. Heslop (1859), 1 El. & El. 563 ; 28 L. J. Q. B. 197 ; 7 W. R. 312 ; 5 Jur. (N.S.) 730 81 Speight v. Gosnay (1891). 55 J. P. 501 ; 60 L. J. Q. B. 231 [C. A.]... 110 Spoor r. Green (1874), L. R. 9 Ex. 99 ; 43 L. J. Ex. 57 ; 30 L. T. 393; 22 W. R. 547 95 Stanley v. Powell, [1891] 1 Q. B. 86 ; 55 J. P. 327 ; 60 L. J. Q. B. 52; 63 L. T. 809 ; 39 W. R. 76 14,252 Stedman v. Smith (1857). 8 El. & B. 1 ; 26 L. J. Q. B. 314 ; 3 Jur. (N.S.) 1248 272 Stevens r. Chown, Stevens v. Clark, [1901] 1 Ch. 894 ; 65 J. P. 470 ; 70 L. J. Ch. 571 ; 84 L. T. 796 ; 49 W. R. 460 ; 17 T. L. R. 313 31 r. Midland Rail. Co. (1854), 10 Ex. 352 ; 23 L. J. Ex. 328 ; 18 Jur. 932 ; 2 C. L. R. 1300 137 Stockdale v. Hansard (1839), 8 L. J. Q. B. 294 ; 9 A. & E. 1 ; 2 P. & D. 1 ; 3 Jur. 905 ; 48 R. R. 326 121 Stone, Ex parte, Re Giles (1889). 61 L. T. 82 ; 37 W. R. 767 ; 6 Morrell, 158 71 v. Cartwright (1795). 6 T. R. 411 : 3 R. R. 220 63 Storey v. Ashton (1869). L. R. 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; 10 B. & S. 337 ; 17 W. R. 727 58 Street v. Tugwell (1800), Selwvn's N. P.. 13th ed., 1070 227 r. Licensed Victuallers' Society (1874), 22 W. R. 553 ... 114 Stroyan v. Knowles, Hamer v. Same (1861), 6 H. & N. 454 ... 241, 242 Stuart r. Bell, [1891] 2 Q. B. 341 ; 60 L. J. Q. B. 577 ; 64 L. T. 633 ; 39 W. R. 612 [C. A.] 123.125 v. Evans (1883). 49 L. T. 138 ; 31 W. R. 706 210 Sturgea v. Bridgman (1879\ 11 Ch. D. 852; 48 L. J. Ch. 785 ; 41 L. T. 219 ; 28 W. R. 200 [C. A.] 231,234 Swain-on v. North-Eastern Rail. Co. (1878). 3 Ex. 1). 341 ; 47 L. J. Ex. 372 ; 38 L. T. 201 ; 26 W. R. 413 [C. A.] 207 Swansea Voir. The (< tuners) v. Rice (1911 ). 27 T. L. R. 440; 55 Sol. J. 197 213 Swift r. Jewsbnry (1874), L. R. 9 Q. B. 301 ; 43 L. J. Q. B. 56 : 30 L. T. 31 ; 22 W. R. 319 54,163 v. Winterbotham (1873), L. R. 8 (,). B. 244 ; 42 L. J. Q. B. Ill ; 28 L. T. 339 ; 21 W. R. 562 163 Swire *. Leach (1865), 18 C. B. (N.8.) 479 2s-.) Svdnev Municipal Council r. Bonrke, [1895] A. C. 433 ; 59 J. P. 659 : 64 I.. .1. P. C. L40 : 72 L. T. 605 ; 11 R. 482 33 Svkes /-.North Eastern Rail. Co. (1875), 44 L.J. C. P. 191 : 32 L T. 199 ; 23 W. R. 173 74 Table of Cases Cited. xlix PAGE faff Vale Railway r. Amalgamated Society of Railway Servant*, [1901] A. C. 426 ; 65 J. P. 596 ; 70 L. J. K. B. 905 ; 85 L. T. 147 ; 50W.B. 44 48 Tancred v. Allgood (1859), 28 L. J. Ex. 362 ; 4 II. & N. 438 ... 284 Tarleton v. M'Gawley (1793). 1 Peake, 205 ; 3 R. R. 689 155 Tarrant r. Webb (1856), 18 C. B. 797 ; 25 L. J. C. P. 261 ; 4 W. R. 640 204 Tarry v. Ashton (1876), 1 Q. B. I). 314 ; 45 L. J. Q. B. 260 ; 34 L. T. 97 ; 24 W. R. 581 67,219 Taunton v. Costar (1797), 7 T. R. 431 ; 4 R. R. 481 269 Taylor v. Hawkins (1851), 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 746 125 v. Manchester, etc. Rail. Co., [1895] 1 Q. B. 134; 59 J. P. 100; 64 L. J. Q. B. 6 ; 71 L. T. 596 ; 43 W. R, 120 ; 14 R. 34 [C. A.] 38,170 Temperton v. Russell, [1893] 1 Q. B. 715 ; 57 J. P. 676 ; 62 L. J. Q. B. 412; 69L.T.78; 41 W. R.565; 4R.376 [C. A.] ... 153,154 Tenant r. Goldwin (1704) 1 Salk. 360 ; 2 Ld. Raym. 1089 192 Terry v. Hutchinson (1868), L. R. 3 Q. B. 599 ; 37 L. J. Q. B. 257 ; 18 L. T. 521 ; 16 W. R. 932 ; 9 B. & S. 487 149, 150 Tharpe v. Stallwood (1843), 12 L. J. C. P. 241 ; 5 M. & G. 760; 6 Sco. N. R. 715 ; 7 Jur. 492 ; 1 D. & L. 24 ; 73 R. R. 974 ... 285 Thomas v. Quartermaine (1887), 18 Q. B. D. 685 ; 51 J. P. 516 ; 56 L. J. Q. B. 340 ; 57 L. T. 537 ; 35 W. R. 555 [C. A.] : 28, 211 Thompson r. Bernard (1807), 1 Camp. 48 110 v. Brighton Corporation, Oliver v. Horsham Local Board, [1894] 1 Q. B. 332 ; 58 J. P. 297 ; 63 L. J. Q. B. 181; 70 L. T. 206; 42 W. R. 161 ; 9 R. Ill ... 34 v. Ross (1858), 29 L. J. Ex. 1 ; 1 L. T. 43 ; 8 W. R. 44 ; 5 H. & N. 16 ; 5 Jur. (N.s.) 1133 148 Thorley's Cattle Food Co. v. Massam (1880), 14 Ch. D. 763 ; 42 L. T. 851 ; 28 W. R. 966 90 Thorne v. Heard, [1894] 1 Ch. 599 ; affirmed, [18951 A. C. 495 ; 64 L. J. Ch. 652 ; 73 L. T. 291 ; 44 W. R. 155 ; 11 R. 254 ... 94 Thorogood v. Bryan (1849), 8 C. B. 115 ; 18 L. J. C. P. 336 ... 183 Thorpe v. Brumfitt (1873), L. R. 8 Ch. 650 248 Tillett v. Ward (1882), 10 Q. B. O. 17 ; 47 J. P. 438 ; 52 L.J. Q. B. 61 ; 47 L. T. 546; 31 W. R. 197 198 Tilling (T.), Limited v. Dick, Kerr & Co., Limited, [1905] 1 K. B. 562 ; 74 L. J. K. B. 359 ; 53 W. R. 380 ; 21 T. L. R. 281 ... 99 Timothy v. Simpson (1835), 4 L. J. M. C. 73 ; 1 Cr. M. & R. 757 ; 5 Tyr. 244 ; 6 Car. & P. 499 ; 40 R. R. 722 262 Tipping v. St. Helen's Smelting Co. (1865), L. R, 1 Ch. 66 ... 88, 226 Todd v. Flight (1860), 9 C. B. (N.s.) 377 ; 30 L. J. C. P. 21 ; 3 L. T. 325 ; 9 W. R. 145 ; 7 Jur. (N.s.) 291 227, 231, 232 Toogood v. Spyring (1834), 3 L. J. Ex. 347; 1 CM. & R. 181; 4 Tyr. 582 ; 40 R. R. 523 123 Trinidad Asphalte Co. v. Ambard, [1899] 2 Ch. 260 n ; A. C. 594 ; 68 L. J. P. C. 114 ; 81 L. T. 132 ; 48 W. R. 116 240 Tubervil r. Stamp (1697), 1 Salk. 213 2nd Tuberville v. Savage (.1669), 1 Mod. 3 251 Tuff r. Warman (1857), 2 C. B. (n. s.) 740, affirmed (1858), 5 C. B. (N.S.) 573 ; 27 L. J. C. F. 322 ; 6 W. R, 693 ; 5 Jur. (N.s.) 222 : 182 Tullidge v. Wade (1769), 3 Wils. 18 78,84,151,265 Turner v. Doe d. Bennett (1842), 11 L. J. Ex. 453 ; 9 M. & W.643 ; 60 R. R. 850 276 T,.T. // 1 Table of Cases Cited. PAGE Turner v. Stallibrass, [1898] 1 Q. B. 56 ; 67 L. J. Q. B. 52 ; 77 L. T. 482 ; 46 W. R. 81 [C. A.] 38, 177 Tnrton v. Turton (1889), 42 Ch. 1). 128 : 61 L. T. 571 ; 38 W. K. 22 [C. A.] ... ' 158, 159 Twycfoss v. Grant (1878), 4 C. P. D. 40 ; 48 L. J. C. P. 1 ; 39 L. T. 616; 27 W.R. 87 [C.A.J 70 u. United Merthyr Collieries Co., Be (1872), L. R. 15 Eq. 46 ; 21 W. R. 117 79 Vaughan v. Menlove (1837). 6 L. J. C. P. 92 ; 3 Bing. N. C. 468 ; 4 Scott. 244 ; 3 Hodges. 51 ; 1 Jur. 215 ; 43 R. R. 711 200,201 r. Taff Vale Rail. Co. (1860), 29 L. J. Ex. 247 ; 2 L. T. 394 ; 8 W. R. 549 ; 5 H. & N. 679 ; 6 Jur. (N.S.) 899 ... 26, 202 Venables v.. Smith (1877). 2 Q. B. D. 279; 46 L. J. Q. B. 470; 36 L. T. 509 ; 25 W. R. 584 57 Verer. Cawdor (Lord) (1809), 11 East. 568 ; 11 R. R. 268 2S3 Verry t?. Watkins (1836), 7 C. & P. S08 84,151 Vine, Ex parte, Re Wilson (1878), 8 Ch.D. 364; 47 L.J. Bk. 116 : 38 L.'T. 730 ; 26 W. R. 582 [C. A.J 70, 71 Vizetelli v. Mudie's Select Library, Limited. [1900 J 2 Q. B. 170 ; 69 L. J. Q. B. 645 [C. A.] ' 117 w. Waite r. North Eastern Rail. Co. (1858), El. B. & E. 719; 28 L. J. Q. B. 258; 7 W. R. 311 184 Wakelin v. London and South Western Rail. Co. (1886), 12 App. Cas. 41 ; 51 J. P. 404 ; 56 L. J. Q. B. 229 ; 55 L. T. 709 ; 35 W.R. 141 186 Wakley r. Cooke (1849), 19 L. J. Ex. 91; 4 Ex. 518 107 Walker r. Brewster (1867), L. R. 5 Eq. 25 ; 37 L. J. Ch. 33 ; 17 L. T. 135 ; 16 W. R. 59 227 V. Brogden (1865), 19 C. B. (N.S.) 65; 12 L. T. 495; 13 W. R. 809 ; 11 Jur. (N.S.) 671 104 r. Great Northern Kail. Co. (1891), 28 L. R. Ir. 69 46 Waller v. Loch (1881), 7 Q. B. 1). 619 : 46 J. P. 484 ; 51 L. J.Q. B. 274 ; 45 L. T. 242 ; 30 \V. K. 18 [C. A.J 125 Waller v. Holt (1876), 35 L. T. 631 47 Wallis V. Hands. [1893] 2 Ch. 75 ; 62 L. J. Ch. 586 ; 68 L. T. 428 ; 41 W. R. 471 ; 3 R. 351 270 Walter r. Selfe (1851), 20 L. J. Ch. 433; 4 De G. & Sm. 315 ; 15 Jur. 416 226 Walton r. Watcrhouse (1672), 2 Wins. Saund. 420 275 Warhurton r. Great Western Rail. Co. (1866), L. R. 2 Ex. 30; 36 L. J. Ex. 9 ; 15 L. T. 361 ; 15 W. R. 108 ; 4 11. & C. 695... 207 Ward v. Weeks (1830), 9 L. J. (o.s.) C. P. 6 ; 4 Moo. & P. 808 ; 7 Bing. 211 116 Warner v. Riddiford (1858), 4 C. B. (N.S.) 180 253 Warwick v. Ponlkea (1844), 13 L. J. Ex. 109; 12 M. & W. 507; 1 D. & L. 638 ; S Jur. 85 84 Table op Cases Cited. u PAGE Wason v. Walter (1868), I, R. I Q B. 78; 88 L. J. Q. B. 34 ; 19 L. T. 409 ; 17 W. R. 169 ; 8 B. & S. 671 ... ... ■■■ i-» W JS* r.ail 1868), ".3Q.B.B96;fL.J.Q.B. 125; i»l T Rfll ■ 16 W II 857 ; 9 B. & S. 279 "■' 80 L. J. K. B. 746 ; 104 L. T. 439 ; 66 Sol. J. 347 [C. A.] ... M° Watson r. Holliday (1882), 20 Ch. D.780; 51 L.J.Ch.906 46 L.T. 878 • 30 W. R. 717 ; affirmed, 52 L. J. Lh. ,>16 , 4 a u. J-. Watt ,. Watt, [1905 1 ] A. 0. 115; 69 J P t* i 74 L. J.K. B. 488 , 921 T 480 • 53 W. R. 547 ; 21 T. L. R. 386 ••• '° Wear Commissioners p. Adamson (1876) 1Q;B.^46;2 App. Cas. 713 ; 17 L. J. Q. B. 193 ; 37 L. T. 543 ; 26 W . R. 217 , affirmed (1877), 2 App. Gas. 743 ... ••• — •" T 7 Webb ,. Ilea van (1883), 11 Q B. L\ 609 : 17 J. P. 488 ; o2 L J O B 544 : 49 L. T. 201 iu», iiu __ r. Bird 0868), 18 C.B.(K.S.) 811 ; 31 L. J. C. P.335 ; 8 Jnr.^ WebKSard '(1886)7*17 q"b D. 122 ; 50 J. p"'597 ; 55 L. J. ' Q. B. 395 ; 54 L. T. 532 ; 34 W. R. 455 ... ... ••• ••■ - lu Wells Y Abrahams (1872). L. R. 7 Q. B. 551 ; 11 L. J. Q. B. 306 26L.T. 326; 20 W.R. 659 «t ™ r. Head (1831), 1 C. & P. 568 ; 34 R. R. 819 ... ... ••• 28d Wenman 0. Ash (1853), 13 C. B. 836 ; 22 L. J. C. P. 190 ; 1 W. R. 452 ; 1 C. L. R. 592 ; 17 Jur. 579 ••• - ■•■ iio Wennhak v. Morgan (1888), 20 Q. B. D. 635 ; 52 J. P. 470 ; 57 L. J. Q. B. 211 ; 59 L. T. 28 ; 36 W. R. 697 ... ... ••• ••• "» Western Counties Manure Co. v. Lawes Chemical Manure Co. (1874), L. R. 9 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5 1; U Weston v. Beeman (1857), 27 L. J. Ex. 57 ... ... ••• ••• Whallev t. Lancashire and Yorkshire Rail. Co. . C1884), 13 Q. B. . 131 ; 48 J. P. 500 ; 53 L. J. Q. B. 285 ; 50 L. T. 2.2 ; il * . R. ^ Whede\^Whiing(1840),9C:&P.262; «\*«» ~ i" 255 Whitbourne «. Williams, [1901] 2 K. B. 722 ; 70 L. J. K. B. 933 , 85 L.T. 271 [C.A.] ••• ; " ■" •" White 0. France (1877), 2 C. P. D. 308; 46 L. J. C. 1. 823 25 W.R. 878 ••• •;• a"' 11 * 0. Mellin, [1895] A.C.151; 69 J. P. 628 ; 64 L.J. Ch. 308; 72 L. T. 334; 43 W. R. 353 ; 11 R. 141 ... Ill, 130 v. Spettiguc (1845), 14 L. J. Ex. 99 ; 18 M. & W. 603 ; 1 Car. & K. 673 ; 9 Jur. 70 ; 67 R. R. 753 ... ...29, 30 (John) & Sons v. White (J. & M.), [1906] A. C. 72 ; 75 L. J. White'house v. Fellowes (1861), 10 C. B. (N.S.) 765 ; 30 L. J. C. P. ^ Whitmores (Edenbridge), Limited 0. Stanford, [1909] 1 Ch. 427; 78 L. J. Ch. 114 ; 99 L. T. 924 ; 25 T. L. R. 169 ; 53 feol. J. ,.^ ... ... ... ... ijh>, 4*0 WhitwhamY Westminster Brymbo Coal & Coke Co. [1896] 2 Ch. 538 ; 65 L. J. Ch. 711 ; 74 L. T. 804 ; 14 W. R. 698 [C. .A.]... < 9 Whyler 0. Bingham Rural Council, [1901] . IK. B. 45; 6 4 J.l. 77 ; 70 L. J. K. B. 207 ; 83 L. T. 652 ; 17 T. L. R. 23 [C A ] ... 34 Wilkinson r.Downton, [1897] 2 Q. B. 57; 66 L. J. Q. B. 493 ; 76 L. T. 493 ; 45 W. R. 625... ... ... 81, 161 r.Haygarth(1817), 12 Q. B. 837; 16 L.J.Q.B.103; ^ WilUa^." BkminghamBatteiJ'and Metal Co* [1899] S j Workmen's Compensation Laws 216a Negligent or Illegal Acts of Employees Beyond the Scope of his Employment 216c Private Injury from Public Nuisances 224a Nuisance by Interference with Property Rights 248y Disturbance of a Private Right of Way 248e Disturbance of Rights to Light aucl Air 248c Disturbance of Riparian Rights 248d Disturbance of a Private Right of Way 248c Damages for Assault 266a False Imprisonment and Malicious Prosecution 266t» When Civil Action for Assault barred by Criminal Proceedings.. 266c Actions for Possession of Land and for Trespass 278a Trespass and Conversion of Goods 292a Restitution of Stolen Property 292c TABLE OF CANADIAN CASES CITED. Adamson v. Adamson, 7 O.A.R. 592, 278a. Ainslie Mining and Railway Co. v. McDongall, 42 Can. S.C.R. 420. 42 N.S.R. 226, 212b. Ashdown v. Manitoba Free Press Co., 20 Can. S.C.R. 43. 132a. Atcheson r. Portage la Prairie, 10 M.R. 39, 36c/. Atkinson r. Citv of Chatham, 29 O.R, 518, 68b. Raines v. Citv of Woodstock, 10 O.L.R, 694 (M.C.), 50/, 224a. Baker v. Mills. 11 O.R. 253, 278a. Bank of Hamilton r. Imperial Rank, 27 Ont. Apn. 590, 42a. Benner v. .Mail Printing Co. (1911). 24 O.L.R. 507, 132c. Barber v. Cleave (1901), 2 0. L.B. 213. 278b. Barnes o. Carter (1910), 2 O. W.N. 8. 132b. Rateman r. Covin tv of Middlesex (1911), 21 O.L.R. 84. 86a. Baxter o. Jones. 6 O.L.R. 360 (C.A.). 4 O.L.R. 541, 42b. Benton r. Springer, 21 O.A.R. 297, 202c. Beatty v. Davis, 20 O.R. 373, 248< . Bell v. Golding, 23 O.A.R. 485, 248/. Rell o. Macklin, 15 Can. S.C.R. 581, 166a. Bell v. W. & A. R. W. Co., 24 N.S.R. 521, 216c. Binvea v. Rose, 19 O.R. 433, 278a. Blacklock r. Milliken, 3 U.C. C.P. 34, 278a. Blackmore c. Toronto Street Railway Co., 38 U.C.R. 216. 190c. Blamires v. Lancashire and Yorkshire R.W. Co. (1873), L.R, 8 Ex. 233, 202a. Bolton v. Hodgins, 3 Sask. R, 149, 152a. Bond r. Conmee, 16 O.A.R. 398, 266c. Bondy v. Sandwich, Windsor and Amherstburg R.W. Co. (1911V 24 O.L.R. 460. D.C.. 190i. Booth v. Moffatt, 11 Man. R, 25, 202c. Boothman r. Smith (1911), 2 O.W.N. 1037. L32c. Bovd '■. Citv of Toronto (1911), 23 O.L.R. 421, D.C.. 248c Bradd v. Whitney, 11 O.L.R. 415, 50/. Branch r. Roth, 10 O.L.R. 284, 160a. Brennan o. Finley, O.L.R, 131, 100b. Brennan v. Ross, 1 O.W.N. 1014, 278b. Briges r. Fleutot, 10 B.C.R. 309. 144b. Briggs v. Newswander (32 Can. S.C.R. 4(>5i. 144a. Brookman v. Conway, 35 N.S.R. 162, 35 Can. S.C.R. 185, 278a. Brown v. Dalby, 7 U.C.Q.B. L62, 30d. Brown r. Hirely, 5 U.C.R. (old series). 731, 50a. [lv] lvi TABLE OF CANADIAN CASES. Brown v. London Ry. (2 O.L.R. 53, 190/. Bur v. Stroud, 19 O.R. 10, 248d. Caldwell v. McLaren (1884), 9 App. Cas. 392, 248c. Canada Atlantic Ry. Co. v. Hurdman, 25 S.C.R. 219, 2166. Canada Paint Co. v. Trainor, 28 Can. S.C.R, 352, 190c. Canada Woollen Mills V. Trao- lin (1904), 35 S.C.R. 424 216b. Canada Pacific Railway Com- pany v. Blain, 34 Can. S.C.R. 74, 216e. Canadian Pacific Ry. Co. v. Guthrie, 31 Can. S.C.R. 155, 248/. Canadian Pacific R.w. Co. v. Robinson, 14 Can. S.C.R. 105; 19 S.C.R. 292. 767). Cannon v. Howland (1889), 1 S.C. Cas. 119, 144b. Carrier v. Garrant. 23 U.C. C.P. 276, 60a.. Carrigan v. Granbv Co. (1909), 16 B.C.R. 157. 2167j. Carter v. Long, 26 Can. S.C.R. 430, 2927). Caswell v. St. Mary's Rond Co., 28 U.C.Q.B. 247. 36c. Chandler and Massey, Limited v. Grand Trunk Railway Co. (1903), 5 O.L.R. 589, follow- ed, 50/. Chaudiere Machine and Foundry Co. v. Canada Atlantic Rail- way Co., 33 Can. S.C.R. 11, 100c. Chaz r. Cisterciens Reformes, 12 Man. R. 330, 202c. Citizen's Life Assurance Co. v. Brown [1904], A.C. 423. 13 L.J.P.C. 102, 90 L.T. 739, 216d, Clark v. Lee, 9 O.L.R. 708 (M. C), 1447). Clark r. Ward. 13 W.L.R. 83, 2 Alta. R, 459; 2 Alta. R. 101, 202(7. Clarke r. McDonnell, 20 O.R. 564, 1007). Clarke r. Rutherford (1901), 2 O.L.R. 206; 5 Can. Cr. Cas. 13 (Ont,), SOd, 266g. Clermont v. Lagace (1897), 2 Can. Cr. Cas. 1, 266/. Clissold v. Machell and Moselev, 26 U.C.R, 423, 50d. Coffey v. Scane (1894-5), 25 O. R. 22, 22 A.R. 269, 266c, 266d. Coffin r. N. A. Land Co., 21 O.R. 87, 1007). Collier v. Michigan Central Railway Company, 27 Ont. App. 630, 190c. Colls v. Home and Colonial Stores, Limited [1904], A.C. 179, 2487). Colville r. Small, 22 O.L.R. 426 (D.C.), 144a. Connell v. Prescott (1892), 20 A.R. 49, 22 S.C.R. 147, 202c. Connors v. Reid (1911), 25 O.L. R, 44, 142a. Cosentino r. Dominion Ex- press Co., 16 Man. R. 563, 427). Consolidated Bank v. Hender- son, 29 U.C.C.P. 549, 50a. Conway v. Brookman, 35 Can. S.C.R, 185, affirming 35 N. S.R. 462, 278a. Conway v. Canadian Pacific R.W. Co., 12 O.A.R. 708, 36b. Copeland-Chatterson Co. v. Business Systems, Ltd. (1906), 11 O.L.R. "292, 50d, 278c. Cornwall v. Derochie, 24 Can. S.C.R. 301, 36c. Corridan v. Wilkinson, 20 A.R. 184, 132c. Cotter r. Osborne, 16 Man. R. 395 18 Man. R. 471. 160b. Craig v. Thompson, 42 N.S.R. 150, 144a. Creighton v. Kuhn. Cassels' S. C. Digest, 514. 292a, Cross v. Wilcox, 39 U.C.R. 187, 266c. Cummins r. Moore, 37 U.C.R. 130, 266c. Daniels r. Grand Trunk R.W. Co., 11 O.A.R. 473, 36b. Davies v. Mann, 10 M. & W. 546, 190a. Davis r. Burt (1910), 3 Sask. R. 446, 166a. Davis v. Henderson (1869), 29 U.C.R, 344, 100c. Davison r. Burnham, Cassels' S. C. Digest, 515, 278a. TABLE OF CANADIAN CASES. lvii Davidson v. Stuart, 14 Alan. R. 74, 34 Can. S.C.R. 215, 76b, 302a. Dawdy v. Hamilton, Grimsby And Beamsville Electric R.W. Co. (1902), 5 O.L.R. 92. 216d. Dawson v. Niagara, St. Cathar- ines and Toronto Ry. (1911), 23 O.L.R. 670, C.A., S6o. Dean r. McCarty, 2 U.C.Q.B. 418, 30c, 202c. Delahanty r. Michigan Central R.W. Co.. 10 O.L.R. 388 (C. A.) 76c. Derrv v. Peek, 14 A.C. 337, 166a. Devaney v. "World Newspaper Co. "(1910), 1 O.W.N. 454, 455. 1 O.W.N. 472, 50a. Devo v. Kingston & Pembroke R.W. Co., 8 O.L.R. -588; 4 Can. Ry. Cas. 42, 76d. Dixon V. Winnipeg Electric Street R.W. Co., 11 Man. R. 528, 216a. Dobbyn v. Dicow, 25 U.C.C.P. IS. 86V/. Dobell p. Stevens (1825), 3 B. & C. 623, 1667<. Dominion Natural Gas Co. v. Collins [1909], A.C. 640. 190b. Donald v. Fulton, 39 N.B.R. 9, 292 b. Donnellv r. Donnellv, 9 O.R. 673, 92b. Donovan v. Herbert, 4 O.R. 635, 278a. Douglas i>. Grand Trunk R.W. Co., 5 O.A.R. 585. 33b. Douglas v. Fox, 31 U.C.C.P. 140, 36b. Downey v. Stirton (1901), 1 O. L.R. 186, 86/. Drew r. Babv, 1 U.C.R. 438, 224". Driffil v. McFall, 41 U.C.R. 319, 320. 292". Earle v. Kingscote (1900), 2 Ch. 58r,, 68a. Fa rlc o. Corporation of Victoria, 2 B.C.R. 156, 68b. Karl r. Reid (1911), 23 O.L.R. 453, 459, 248b. Eaton v. Sangster, 24 Can. S. C.R, 708, f>Hr, 76c. Ellis r. Abell, 10 A.R. 226, 166b. Emperor of Russia v. Proskouri- akoff, 18 M.R. 56, 30b. Erie County Natural Gas and Kind Company r. Carroll [1911], A.C. 105, 86a 7 . Fairweather x'. Owen Sound Quarry Co., 26 O.R. 607, 216a. Fallis v. Gartshore, Thomp on Pipe and Foundry Company (1902), 4 O.L.R. 176 68b. Farquaharson v. Imperial Oil Co. (1899), 30 S.C.R, 188, 248e. Faidds v. Harper, 11 Can. S. C.R. 639, liOOb. Feigenbaum V. Jackson ami Mc- Donell, 8 B.C.R, 417.. 248c. Fenton v. Macdonald, i O.L.R. 422, 132/. File r. Unger, 27 A.R. 468, 472, 50b. Fitchet v. Walton, 22 O L.R. 40, 266a". Fleming r. Hislop, 11 Apo. Cas. 686, 248". Fleutv v. Orr, 13 O.L.R. 59 (D.C.) 210/. Flood v. Village of London West, 23 O.A.R. 533, 68b. Fodev r. South Qu'Appelle (1910), 3 Sask. R. 412 216c. Ford r. Canadian Express Co. (1911). 24 O.L.R. 462, 21 O.L. R. 585. 142a, 142b. Ford v. Gourlay, 42 U.C.R. 552, 86". Forester V. Clarke, 3 U.C.R. 151, 266c. Forsythe r. Canniff and Corpor- ation of Toronto, 20 O.R. 478, 50b. Forsvthe r. Can. Pae. Ry., 4 Can. Ry. Cas. 492. 30a. Forwood V. City of Toronto, 22 O.R. 351, 190c. Fowe'l v. Grafton. 22 O.L.R. 550, 20 O.L.R. 639 36b, 202a. Fralick r. Grand Trunk Rv. Co. (1910), 43 S.C.R. 194, 216b. Francis v. Turner, 10 Man. R. 310, and 25 Can. S.C.R. HO, 2926. Freeborn r. The Sinier Sowing Machine Co., 2 Man. R. 2-53, .50b. lviii TABLE OF CANADIAN CASES. Fuller v. Pearson, 23 N.S.R. 263, 2486. Furlong v. Carroll, 7 O.A.R 145, 202 c. Garbutt v. Winnipeg (1909). 18 M.R. 345, followed 50c. Garland v. Thompson, 9 O.R, 376, 166a. Garrioch v. MeKav, 13 Man. R. 404, 278b. Gates v. Davison, 5 Russ. & Geld. 431; Cassels" S. C. Digest, 516, 278a. Gates v. Devenish, 6 U.C.R. 260, 266c. Gates v. Lohnes, 31 N.S.R. 221, 132b. Gibson v. Midland Railway Co. (18S3). 2 O.R. 658, 76c. ' Giegerich v. Fleutot, 3-5 Can. S.C.R, 327, 144b. Gillis Supply Co. v. Chicago, Milwaukee and Puget Sound Rv. (Xo. 2), (1911), 16 B.C.R. 254, 36a. Gillson u. North Grey Rv. Co., 35 C.C.Q.B. 475, 202c. Gilmour v. Bav of Quinte Bridge Co., 20* O.A.R. 281. 190e. Ooddard v. Fredericton Boom Co., 1 Han. (N.B.), 536, 86b. Goodwin v. Hoffman, 15 Can. Cr. Cas. 270, 266a. Graham v. Knott, 14 B.C.R. 97, 9 W.L.R. 475. 160b. Graham v. McArthur, 25 U.C.R. 478. 26Sc. Grand Trunk R.w. Co. v. Bar- nett [19111. A.C. 361, 190i, 202/. Grand Trunk Railway Company r. Hainer, 36 Can. S.C.R. 180. 76c/. Grand Trunk Rv. Co. v. Sib- bald. 20 Can. S.C.R. 259, 86c?. Grantham v. Severs, 25 U.C.R. 468. 50c'. Grantillo v. Caporici (1899), 16 Que. S.C. 44, 266/. Gray r. McCartv, 22 U.C.R. 568, 266c. Gray & Smith v. Guernsey, 5 Terr. L.R. 439. 202b. Gremlev o. Stubbs, 39 N.B.R. 21, 190/. Grimes i\ Millar. 23 O.A.R. 761, 142/-. 26 >c. Guthrie r. Canadian Pacific, 27 O.A.R. 64, 248/. Gvorgv v. Dawson, 13 O.L.R. 381,' 76c/. Halifax Street Rv. Co. v. Joyce, 22 Can. S.C.R. 258, 224a. Halifax, City of, r. Walker, 1 S.C. Cas, 569, 36c. Hamilton Terminal R.W. Co.. Re. and Whipple, 14 O.L.R. 117 (C.A.), 248/. Hamilton v. Massie, 18 O.R. 585, 266b. Hammond r. G.T.R., 4 Can. Cr. Cas. 232, 30a. Hansford r. Grand Trunk R.W. Co. (1909), 13 O.W.R. 1184, 216b. Harding r. Johnston (1909), 8 Man. R. 625, 292d. Harris v. Bickerton (1911), 24 O.L.R. 41, D.C. 142c. Harris v. Brunette, 3 B.C.R. 174, 216e. Harri. r. Mndie (1882), 7 A.R. 414, 100c. Harris v. Perrv cv Co. [1903], 2 K.B. 219. 42b. Harrison v. Prentice, 24 Ont. A pp. R. 677, 152a. Havdon v. Crawford, 3 U.C.R. (O.S.), 587, 292b. Hebert v. Hebert (No. 1). 15 Can. Cr. Cas. 258; 31 Que. S.C. 370, 30d. Hebert v. Hebert (No. 2). 16 Can. Cr. Cas. 199; 37 Que. S.C. 339, 30c/. Henderson v. Canada Atlantic Rv. (1896), 25 A.R, 437, 86c/, 86/. Hesketh v. Toronto (1898), 25 A.R. 449. 50c. Hime v. Coulthard (1910), 20 Man. R. 164, 30a. Hinds v. Corporation of the Town of Barrie (1903), 6 O. L.R. 656, 50/. Holden V. Grand Trunk R.W. Co., 5 O.L.R. 301, (C.A.); 2 Can. Rv. Cas. 352, 76c/. Hopkin v. Hamilton Electric Light and Cataract Power Co., 4 O.L.R, 258 (C.A.), 2 O. L.R, 21 i. 92b. Hopkins v. Smith, 1 O.L.R. 659, 1446. TABLE OF CANADIAN CASES. lix Howard v. City of St. Thomas, 19 O.R. 71!), 42a. Howard r. Herrington, 20 O. A.R. 175. 292c. Howe V. Schroeder (1905), 1 West, L.R. 174 (Yukon Terr.). 292d\ Hovle r. Ham, Taylor's Upper Canada Reports, 248, 152a. Huffman v. Rush, 7 O.L.R. 346 (D.C.), 100c. Hughes v. Hughes, 6 O.A.K. 373, 1006. Hunt ». Peake (1860), Johns, 705, 2486. Hvnes v. Fisher, 4 O.L.R. 60, 1606. Hide li Stair, 21 O.L.R. 407, 248/. Imperial Bank r, Bank of Ham- ilton, 31 Can. S.C.R. 344 (1903), A.C. 49, 42a. Ince r. Toronto, 31 Can. S.C.R. 323, 27 Ont. App. 410, 36d. Iveson r. "Winnipeg, 16 Man. R. 352, 36c. James V. Rathbun Co., 11 0. L.R. 271, 248e. Jeffers r. Markland, 5 U.C.R. (O.S.) 677, 866. Jones r. Toronto and York Radial Rv. (1911), 23 O.L.R. 331, 337, 190a, 190/, 190fr. Jose v. Metallic Roofing Co. [1908!. A.C. r,14, 14 O.L.R. 156, 160a. Journal Printing Co. v. Mac- Lean. 23 A.R. (Ont.), 324, 50a. Keil r. Ross, 13 W.L.R. 512, 92a. Keith v. The Ottawa and New York Railway Co. (1902), 5 O. L.R. 116; 2 Can. Rv. Cas. 26, 190 i. Kellett r. B. C. Marine Ry. Co. (1911), 16 B.C.R. 196, 198, 306. Kellv r. Archibald, Kelly v. Barton, 26 O.R, 608- 22 O.A. R. 522, 266c. Kennerman V. The Canadian Northern Railway Company, 3 Sask. R. 74, 2026. Kent r. Clarke, 1 Sask. R. 146, 92c. Kent v. Ellis, 31 Can. S.C.R. 110, 292o. Kcrwin v. Canadian Coloured Cotton Co., 28 O.R. 73, I90e. Kine v. Bailey, 31 Can. S.C.R. 338, 1006. King v. Northern Navigation Co. (1911), 24 O.L.R. 643, 202/. Kingston, City of, v. Drennan, 2, S.C.R. 46, 36d. Kirk v. Toronto, 8 O.L.R. 730, 686. Kirkpatrick v. C.P.R., 35 N. B.R, 598, 86/. Krug Furniture Company v. Berlin Union of Amalgamated Woodworkers (1903), 5 O.L.R. 463, 160a. Labombarde v. Chatham Gas Co., 10 O.L.R, 446, 2026. Laidlaw v. Vaughan-Rhvs (1911), 44 Can. S.C.R. 455, 166c. Lake Erie and Detroit River R.W. Co. i7. Barclay, 30 S.C. R. 360, 190flr. Lake Simcoe Ice and Cold Stor- age Co. v. McDonald, 31 Can. S.C.R. 130, 26 O.A.R. 411, 2786. Lamont r. Wenger (1909), 22 0. L.R. 642, 166c. Lampman v. Gainsborough (1888), 17 O.R. 191, 766. Larin v. Boyd, 11 Can. Cr. Cas. 74; 27 Que. S.C. 472, 30a*. Latta v. Fargey (1906), 9 O.W. R. 231, 9 O.W.R. 601, 132/. Laughlin v. Harvey, 24 Ont. A.R, 438, 866. Lawrence and Ottawa R.W. Co. v. Lett, 11 Can. S.C.R. 122, 766. Lawrie v. Maxwell (1904), 3 0. W.R. 134, 132c. Lawry v. Tuckett-Lawrv, 2 0. L.R, 162, 152a. Le Blanche v. London and North "Western Ry. Co. (1876), 1 C.P.D. 286.' 80o\ Lee v. Hopkins, 20 O.R. 666, 68a, 1326. Lellis v. Lambert, 24 Ont App. R. 653, 152a. Lemay r. Canadian Pacific R.W. Co., 17 O.A.R. 300, 1900. lx TABLE OP CANADIAN CASES. Le Roi Co. v. Rossland Miners' Union, 8 B.C.R. 370, 1606. Lintner v. Lintner, 6 O.L.R. 643 (D.C.), 2926. Livingstone v. Massey, 23 U.C. Q.B. 156, 30d. London Street Railway Co. v. Brown, 31 Can. S.C.R. 642, 190/. Lone v. Smith (1911), 23 O.L.R. 121, 1666. Longdon v. Bilsky (1910), 22 O.L.R, 4.. 142a. Longmore v. McArthur Co., 43 Can. S.C.R, 640, 50/, 686. Lossing v. Wrigglesworth, 1 O. W.R. 460. 132c. Love v. Fairview, 10 B.C.R. 330, 36a. Lowery v. Walker [1911], A.C. 10, 202/. Lowther r. Baxter, 22 N.S.R. 372, 132/. Lucy v. Smith, 8 IT.C.R. 520, 1426. Macdonald v. Mail Printing Co. 2 O.L.R. 278, 32 O.R. 170, 1326, 132e. Mackenzie v. Cunningham, 8 B. C.R 36. 8 B.C.R.^206. 68a, 1326, lS2d. Mader v. Halifax Electric Co., 37 Can. S.C.R. 94, 190/. Madill v. Township of Caleclon. 3 O.L.R. 66, 3 O.L.R, 555, 36d. Makarsky v. Canadian Pac fi • Railway Co., 15 Man. R. 53, 766. Malcolm v. McNichol, 16 Man. R. 411, 42a. Marshall v. Central Ontario Ry. Co., 28 O.R, 241, 50a. Marshall r. Gowans (1911), 24 O.L.R. 522, C.A.. 190d. Mason v. Morgan, 24 U.C.R. 328, 278a. Mayor of St. John v. MacDon- ald, 14 S.C.R 1, 41a. McArthur v. Dominion Cart- ridge Co. [1905], A.C. 72, 76d, 202/. McCleave v. The Citv of Monc- ton (35 N.B.R, 296, and 32 S.C.R. 106). 266c McClellan r. Powassan Lumber Co., 17 O.L.R. 32, 42 Can. S. C.R, 249, 248/. McConaghv v. Denmark, 4 Can. S.C.R. 609, 4 S.C.R. 632, 1006, 278a. McDonald v. Cameron, 4 U.C.R. 1, 86a, 1426. McDonald v. Lane, 7 S.C.R. 462, 292c. McDonald v. McPherson, 12 S. C.R. 416, 2926. McDougall v. McNeil, 24 N.S. R. 322, 2926. McEvoy v. Wright (1904), 3 O.W.R, 428, 50a. McFie r. Canadian Pacific R.W. Co., 2 Man. R. 10, 366. McGarrv v. Canada West Coal Co. (No. 2), 2 Alta. R,, 299, 866. McGuinness v. Dafoe, 23 O.A.R. 704; 3 Can. Cr. Cas. 139, 2666. Mclnnes v. Malaga Mining Co., 25 N.S.R. 345, 216a. Mclntyre v. Buchanan, 14 U. C.R. 581, 68c. Mclntvre v. Gibson, 17 M.R. 423 at pn. 424 and 425, 306. Mclntvre v. Town of Lindsay, et al. (1902), 4 O.L.R, 448, 686. McKay v. Bruce, 20 O.R. 709, 248/. McLaughlin v. The Grand Trunk Railway (1886), 12 O. R. 418, 76c. McLellan v. McKinnon, 1 O.R. 219, 266c. McLeod v. Meek (1898), 6 Terr. L.R. 431, 30c. McMullen r. Archibald, 22 N.S. R. 146, 224a. McNerny v. Forrester (1911), 47 C.L.J. 625 (Man.), 19 W. L.R, 32 (Man.), 2246, 248a. Melanson v. Lavigne, 37 N.B.R. 539, 266e. Menton f. Lee, 30 U.C.R. 281, 50d. Merritt v. Hepenstal, 25 Can. S.C.R, 150, 68c, 76c, 216c. Mersey Docks Trustees v. Gibhs (1866), L.R. 1 H.L., 93, 50c. Metcalf r. Roberts, 23 O.R. 130, 306. Milburn c Wilson, 31 Can. S.C. R. 481, 166c. Miller v. Grand Trunk R.W. Co., 25 U.C.C.P., 389, 190g. TABLE OP CANADIAN CASES. Ixi Miller v. Lea (1898), 2 Can. Cr. Cas. 282, 266/. Mills v. Dixon, 4 U.C.C.P. 222, 30c Milner v. Manitoba Lumber Co., 6 Man. R. 487, 50b, 216e. Minnes v. Village of Omemee, 8 O.I, .11. :.MS (D.C.), 10.W). Mitchell o. Barry, 26 U.C.R. 416, 306. Moffatt v. Bateman, L.R. 3 P.C., 115, 426. Monoghan V. Horn, 7 S.C.R. 420, 766. Moriarity v. Harris, 10 O.L.R. 610, 266c. Morrow r. Canadian Pacific R.W. Co. (1894), 21 A.R, 149, 1907(. Morton r. McDowell, 7 U.C.R. 339, 866. Moyer o. Grand Trunk R.W. Co., 3 Can. Rv. Cas. 1 (C.A.), 190(7- Muckleroy r. Burnham, 1 U. CR. 352; 152a. Muma v. C.P.R., 14 O.L.R. 147, 6 Can. Ry. Cas. 444, 76d. Mummery v. G.T.R. (1900), 1 O.L.R. 622, 766. Mvkel r. Dovle, 45 U.C.R. 65, 248/. Neal v. Rogers, 22 O.L.R. 588, 92c. Nevills v. Ballard (1897), 1 Can. Cr. Cas. 434 (Ont.), 266/. Nourse v. Foster, 21 U.C.R. 47, 1426. Newswnnder v. Gieeerich, 39 Can. S.C.R. 354 affirming 12 B.C.R. 272, 144a. Natural Resources v. Saturday Night, 2 O.W.N. 9, 16 O.W.R. 927, 92c. Nightingale v. Union Colliery Company, 35 Can. S.C.R. 35, affirming 9 B.C.R, 453; 2 Can. Ry. Cas 47, 42&. Oatman v. Michigan Central Railway Co., 1 O.L.R. 145 (C. A.), 202d. O'Keefe v. Walsh (1903), 2 Irish R. 681, 50c?, 50e. Ontario Ladies' College r. Ken- dry, 10 O.L.R. 324, 1666. B. Ostrom v. Sills, 24 O.A.R. 526, 28 Can. S.C.R. 485, 248d. Owen v. Dingwald (1910), 3 Sask. R. 328, 330, 202c, 216c. Owens v. Burgess, 11 Man. R. 75, 202c. Park v. White, 23 O.R. 611, 2486. Parke r. Hale (1903), 2 O.W.R. 1172, 132c. Patree r. Kincaid, 3 Terr. L.R. 395, 202c. Patterson v. Edmonton Bulletin Company, 1 Alta. R., 477, 132d. Patterson v. Plaindealer Co.. i' Alta. R. 29, 132c. Pattison v. C.P.R. (1911). 24 O.L.R. 482, 2166. Pearson v. Dublin Corporation (1907), A.C. 351, followed. 166a. Peart v. Grand Trunk Railway Company (1886), appendix of 10 O.L.R. 753 (Privy Council) affirming 10 A.R. 191, 190?'. Pease v. McAloon, 1 Kerr (N. B.), Ill, 30a 7 . Peters v. Devinney, 6 U.C.C.P. 389, 30c. Petrie v. Guelph Lumber Co., 11 Can. S.C.R. 450. 166a. Pherrill r. Sewell, 12 O.W.R. 63, 132c. Pickering v. Thompson (1911), 24 O.L.R, 378, 2926. Pictou v. Geldert [1893]. A.C. 524, 224a. Pinke r. Bornhold, et al., 8 O. L.R, 575. 926. Plestid v. McLeod, 15 W.L.R. 533, 266d\ Pockett v. Pool, 11 M.L.R. 275, 2666. Potvin v. Canadian Pacific R. W. Co., 3 Can. Rv. Cas., 8, 76c Pounder v. North-Eastern Rail- way Co. [1892], 1 Q.B. 385. 216e. Pratt r. Waddington (1911). 23 O.L.R. 178, D.C., 190a, 292a. Prescott, Town of, v. Connell, 22 S.C.R, 147, 30c. Pring r. Wyatt, 5 O.L.R. 505, 1426. Provincial Fisheries, Re, 26 Can. S.C.R. 517, 248c. lxii TABLE OF CANADIAN CASES. Pullman v. Hill & Co. [1891], 1 Q.B. 524, 132d. Putterbaugh v. Gold Medal Fur- niture Manufacturing Co., 7 O.L.R. 582 (C.A.), 13Qd. Quirk r. Dudley (1902), 4 O.L. R. 532, 92b. Radlev v. London and North Western R.W. Co., 1 App. Cas., 754, followed, 190a. Randall v. Ahearn & Soper, 34 Can. S.C.R. 698, 216a. Rankin v. Mitchell, 1 Han. (N. B.), 495, 866. Reid v. Inglis, 12 U.C.C.P. 191, 266c. Reilander v. Bengert, 1 Sask. R. 259, 132b. Renwick v. "Vermillion Centre, 15 W.L.R. '244, (Alta.), 248d. Reutsch v. Spry, 14 O.L.R. 233, 248d. Rice v. Corporation of Whitby, 28 O.R. 598, 25 A.R. 191, 50/, 224a. Riopelle v. City of Montreal (1911), 44 Can. S.C.R. 579, 278c. Roberts v. Morrow, 2 Sask. R., 15, 202d. Robinson v. Toronto Rail. Co. (1901), 2 O.L.R. 18, 190i. Rodgers v. Hamilton Cotton Co., 23 O.R. 425, 190a. Roe v. Corporation of Lucknow, 21 O.A.R. 1, 36c. Rogers v. Toronto Public School Board, 23 O.A.R. 597, 30c. Rose v. Belvea, 1 Han. (N.B.), 109, 86c. Roth v. Canadian Pacific, 4 Can. Ry. Cas. 238 (Ont. D.C.), 266b. Rounds v. Corporation of Strat- ford, 26 U.C.C.P. 11, 36c. Rowe v. Hewitt, 12 O.L.R. 13 (DC), 92c. Roy v. Henderson, 18 Man. R. 234, 190a- Royal Electric Co. v. Heve, 32 S. C.R. 462, 202b. Roylance r. Canadian Pacific Railway Co., 14 B.C.R. 20, 86b. Royle v. The Canadian North- ern Railway Co., 14 Man. R. 275, 190c. Ryan r. Mcintosh, 20 O.L.R. 31, 190b. St. Denis v. Shoultz, 25 O.A.R. 131, 142b. St. John, City of, v. Campbell. 26 S.C.R. i, 36c. St. John, Mayor of, v. Mac- Donald, 14 Can. S.C.R. 1, 42a. St. Vincent v. Greenfield, 15 O. A.R. 567, 92b. Sanford v. Bowles, 3 N.S.R. 304, 292b. Saunders v. Citv of Toronto (1899), 26 A.R'. 265. 216/. Shannahan v. Ryan, 20 N.S.R. , 142, 190c. Shaw v. City of Winnipeg, 19 Man. R., 234, 50c. Shaw v. Earl of Jersey (1879), 4 C.P.D. 120, 92c. Shaw v. McCrearv, 19 O.R. 39, 50a. Sherwood v. City of Hamilton, 37 U.C.R. 410, 68b. Sherwood v. O'Reilly, 3 U.C.R. 4, 142b. Shoebrink v. Canada Atlantic R.W. Co., 16 O.R. 515, 190e. Sievert v. Brookfield, 37 N.S.R. 115, 42a. Simpkinson v. Hartwell (1899), 6 Terr. L.R, 473, 292b. Simpson v. Eaton, 15 O.L.R. 161, D.C. 248c. Sims v. Grand Trunk R.W. Co., 10 O.L.R, 330, 1907i. Sinclair v. Haynes, 16 U.C.R. 251, 142b. Sinden v. Brown, 17 O.A.R. 173. 266b, 266c. Slater v. Watts (1911), 16 B.C. R. 36, 266b. Sleeth v. Hurlburt, 27 N.S. Reps. 375, 25 S.C.R, 720, 292b. Smith v. Thackeray (1866). L.R. 1 C.P., 564, discussed, 248b. Solicitor, Re, 14 O.L.R. 464, 144b. Sornberger v. Canadian Pacific Railway Co., 24 Ont. A.R. 263, 86b. South Hetton Coal Co. v. North- Eastern News Association (1894), 1 Q.B. 133, 50a. Spratt v. Dial, 14 W.L.R, 185 (Man.), 202a\ TABLE OP CANADIAN CASES. Ixiii Sproule r. Stratford, 1 Ont. 335, 278b. Stanley r. Hayes, 8 O.L.R. 81. 50a. Stewart r. Cobalt Curling and Skating Association, 19 O.L. R. 667, 190d. Stewart v. Teskee, 20 Man. R. 167, 50d, 278c. Stone 17. Jaffrav (1905), 5 O.W. R. 725, 132c Stone v. Knapp, 29 U.C.C.P. 609, 50a. Stott v. Grand Trunk R.W. Co., 24 U.C.C.P. 347, 30a. 216( . Stretton r. Holmes, 19 O.R. 286, 42a. Sullivan" r. McWilliam, 20 O.A. R. 627, 30c. Tabb r. G.T.R. 4 Can. Ry. Cas. 76r. Tapp (7. Brenot (1904), 3 O.W. R. 80. I32e. Tarry p. West Kootenay Power and Light Company, 11 B.C. R. 229.' 248/. Taylor, Re, 28 Grant, 640, 100b. Taylor r. British Columbia Electric Railway Co., 16 B.C. R, 109, 86/. Taylor v. Citv of Winnipeg, 12 MR. 479, 36d. Tayl. Wells 17. Crew, 5 U.C.R. (O.S.), 209, 292a. Western Bank of Canada r. Greey, 12 O.R, 68, 278a. lxiv TABLE OF CANADIAN CASES. Weston v. Perry, 1 O.W.N. 155, 152a. Whitling v. Fleming, 16 O.L.R. 263, 132c. Whyte v. The Sydney and Louis- bourg Coal Co. 25 N.S.R. 384, 216a. Wilkinson v. B. C. Electric Ry. Co. (1911) 16 B.C.R. 113, 115, 76c/. Williams v. North Battleford (1911) 4 Sask. R. 75, 36c. Williams v. Robinson, 20 U.C. C.P. 255, 30d. Williamson v. Grand Trunk Railway Co., 17 U.C.C.P. 615, 86e. Wilson r. Citv of Winnipeg, 4 Man. R. 193, 50b. Wilson v. Deane (1910), 3 Alta. R. 186, 132g. Wilson v. Hotchkiss, 2 O.L.R. 261, 68a, 166c. Wilton r. Murray, 12 Man. R. 35, 248o\ Winterbottom v. Board of Com- missioners of Police of the City of London (1901), 1 O.L.R. 549, 50c. Wolfson v. Oldfield (1911), 47 C.L.J. 632 (Man.), 166a. Wood v. Mackey (1881) 21 N.B. R. 109, 118, 132a. Woodforde v. Town of Chatham, 37 X.B.R. 21, 266e. Woods v. Plummer, 15 O.L.R. 552 (C.A.), 132/. Wray v. Morrison. 9 O.R. 184, 92o. York v. Canada Atlantic S. S. Co., 24 N.S.R. 436, 224a. Young v. Gravenhurst (1911), 24 O.L.R. 467; 22 O.L.R. 291. 50d, 202b. Young v. Owen Company, 27 190c Young v. Township of (1911). 24 O.L.R, 546, Sound Dredge O.A.R, 649, Bruce 36d\ THE LAW OF TOBTS. INTRODUCTION. " The maxims of law," says Justinian, " are these : To live honestly, to hurt no man, and to give every one his due." The practical object of law must necessarily be to enforce the observance of these maxims, which is done by punishing the dishonest, causing wrongdoers to make reparation, and insuring to every member of the community the full enjoy- ment of his rights and possessions. Infractions of law are, for the purposes of justice, divided into two great classes: viz., public and private injuries. The former consist of offences against the community at large, or offences — commonly called crimes — which, although primarily affecting individuals, are subversive of law and order; and as no redress can be given to the community, except by the prevention of such acts for the future, they are either stopped by injunction at the suit of the Attorney-General, or (in the case of crimes) visited with some deterrent and exemplary punishment. Private or civil injuries, on the other hand, are merely violations or deprivations of the legal rights of individuals. These admit of redress. The law, therefore, affords a remedy by forcing the wrongdoer to make reparation ; and in some cases also restrains him by injunction from repeating the wrong. But as injuries are divided into criminal and civil, so the latter are sub-divided into two classes, of injuries ex contractu and injuries ex delicto — the former being such as arise out of the violation of duties undertaken by con- tract, and the latter (commonly called torts) such as spring 4 Introduction. from the violation of duties imposed by law, to the per- formance or observance of which every member of the community is entitled as against the world at large. Although, however, these divisions are broadly correct, the border line between them is by no means well defined. Indeed, from the very nature of things, each division must to some extent overlap the others. Thus the same set of circumstances may constitute a crime, a tort, and a breach of contract. At the same time, as those circumstances may be regarded from each of the three points of view, no confusion ensues from the fact that they cannot be exclu- sively placed in any one of the three classes. In this Work an attempt has been made to state the principles which the law applies to those facts which constitute torts. PART I. KULES RELATING TO TORTS IN GENERAL. ( 7 ) CHAPTER I. OF THE NATURE OF A TORT. Abt; 1. — Definition of a Tort. A Tort is an act or omission which, independent of contract, is unauthorised by law, and results either — (a) in the infringement of some absolute right to which another is entitled ; or (b) in the infringement of some qualified right of another causing damage ; or (c) in the infringement of some public right resulting in some substantial and par- ticular damage to some person beyond that which is suffered by the public generally. No one has yet succeeded in formulating a perfectly satisfactory definition of a Tort ; indeed, it may be doubted whether a scientific definition, which would at the same time convey any notion to the mind of the student, is possible. A tort is described in the Common Law Procedure Act, Comment 1852, as "a wrong independent of contract." If we use JJgJJgJJJJ the word "wrong," as equivalent to violation of a right of Tort, recognised and enforced by law by means of an action for damages, the definition is sufficiently accurate, but scarcely very lucid ; for it gives no clue as to what constitutes a wrong or violation of a right recognised and enforced by law. Of the Nature of a Toet. Art. 1. Examination of author's definition. Meaning of 1 ' damnum " and " injuria." A text book (a), by a distinguished American lawyer, defines a tort as a breach of duty fixed by law, and re- dressible by a suit for damages ; but this definition does not seem to convey much information to the reader, and confessedly requires an elaborate explanatory dissertation. Perhaps Sir Frederick Pollock (b) gives the most complete definition ; but I cannot help thinking that, excellent as it is, the student is more likely to grasp the legal meaning of the word " tort " from the brief definition which I have attempted. It will be perceived from the above definition, that three distinct factors are necessary to constitute a tort according to our law. First, there must be some act or omission on the part of the person committing the tort (the defendant), not being a breach of some duty undertaken by contract. Secondly, the act or omission must not be authorised by law. Thirdly, this wrongful act or omission must, in some way, inflict an injury, special, private, and peculiar to the plaintiff, as distinguished from an injury to the public at large ; and this may be either by the violation of some right in rem, that is to say, some right to which the plaintiff is entitled as against the world at large, or by the infliction on him of some loss of property, health, or material comfort. It is desirable at this stage to examine the third of these three factors a little more closely. One often sees it stated in legal works that a damnum absque injuria is not actionable, but that an injuria sine davino is. By damnum is meant damage in the sense of substantial loss of money, comfort, health, or the like. By injuria is meant an unauthorised interference, however trivial, with some right conferred by law on the plaintiff (ex. (jr. the right of excluding others from his house or garden). All that the maxims come to, therefore, is this : that no action (7/) Bigelow's Elements of the Law of Torts. (7/) See Pollock on Torts. 6th ed., p. 1H. Definition of a Tort. 9 lies for mere damage (damnum), however substantial, caused Art. 1. without breach of a legal right ; but that an action does lie for interference with another's absolute legal private right, even where unaccompanied by actual damage. Eead by the light of these observations, both the maxims in question are correct. For the interruption of an absolute right, however temporary and however slight, is considered by the law to be damaging, and a proper subject for reparation ; and substantial damages have more than once (in cases of false imprisonment) been awarded, where the plaintiff's surroundings were very considerably improved during his unlawful detention. But when no absolute private right has been invaded by a wrongful act, then no action will lie unless the plaintiff has sustained actual loss or damage. Damnum absque injuria means damage without infringe- Damnum ment of any legal right, and it is clear that this is not ^£5*. actionable, even though the damage is caused by an unauthorised act, such as a crime or breach of trust. For instance, murder is an act unauthorised by law, and it may inflict most cruel and particular damage on the family of the murdered man ; but, nevertheless, at common law, that gives them no civil remedy against the murderer (c). So, if one libels a dead man, his children have no right to redress, although it may cause them to be cut off from all decent society, for, though a man has in a sense a right to his own reputation, he has none in the reputation of his father. So a breach of trust, although not permitted in equity, and usually followed by private and particular loss to the beneficiaries, is not an infringement of any legal right, and therefore cannot properly be said to constitute a tort. In the case of the invasion of an absolute private right, Injuria sine there is a wrong done to the plaintiff by the mere infringe- (J amno. ment of that right, and for every wrong there is a remedy by action " ubi jus ibi rcmcdium." (c) See ('lurk v. London General Omnibus Co., [1906] 2 K. B. 648 "C. A.], post, p. 7:5. 10 Of the Natuee of a Toet. Art. 1. A man has an absolute right to his property, to the immunity of his person, and to his liberty. Thus, in actions of trespass whether to goods, lands, or the person (including assault and false imprisonment), actual damage is not an essential part of the cause of action, and a plaintiff is entitled to damages for the mere infringement of these rights. Infringement But there are some private rights which are only qualified of qualified rights, that is, rights to be saved from loss, and no action rights. 6 will lie for an infringement of these rights without proof of actual damage. Thus, a person has not an absolute right not to be deceived, and in an action for fraud it is necessary for the plaintiff to show that the deceit complained of resulted in damage. So, too, in actions for nuisance (with some exceptions), malicious prosecution and negligence, damage is an essential part of the cause of action ; as in all these cases the right infringed is only a qualified right — a right to be preserved from damage by certain acts or omissions of other persons. Infringement Lastly, a tort may consist in the infringement of a public of public right, i.e., a right which all men enjoy in common, coupled with particular damage. Take, for example, rights of high- way. If a highway is obstructed, an injury is done to the public, and for that wrong the remedy is by indictment or by proceedings by the Attorney-General on behalf of the public. If every member of the public could bring an action, the number of possible actions for one breach of duty would be without limit (d). But if, in addition to the injury to the public, a special, peculiar and substantial damage is occasioned to an individual beyond the injury suffered by the public generally, then it is only just that he should have some private redress (e). It will, therefore, be seen, that there must be an act or omission either causing (a) an infringement of some absolute private right, or (b) an infringement of a qualified private (V) Sec Winterhotham v. Lord Derby, L. E. 2 Ex. 316 ; W. II. Chaplin # Co., Limited v. Westminster Corporation, [1901] 2 Cli. 329. (>-) See Lyon v. Fishmongers' Co., 1 App. Cas. (562 ; and Fritz v. Hobson, U Oh. 1). 542. Definition of a Tort. 11 right resulting in damage, or (c) an infringement of a public Art. 1. right resulting in substantial and particular damage to some person beyond that suffered by the public. Again, the act or omission must be unauthorised, i.e., not The act or justifiable bylaw. If a sheriff enters on a man's land under omisslon * J ... niust be due process of law to execute a writ of fi. fa., his act, though unauthorised, an infringement of the right of property, is not tortious, because it is authorised by the judgment and writ of execution. So, too, an entry on land may be justified by necessity, or by its being done lawfully in the exercise of a right of way or by licence of the owner of the land. And trespasses to the person by beating or imprisonment may be justified by a sentence of a court of competent jurisdic- tion, and an assault may be justified by its being done in self defence, or as reasonable chastisement by a parent or schoolmaster. In all these cases the acts done are prima facie tortious, but are not actionable because they are authorised by law. Art. 2. — Ubi jus ibi remedium. A violation •. of every legal right (not being a breach of contract) committed knowingly and without lawful justification is a tort. In the words of Pratt, C.J., "torts are infinitely various, Explanation, for there is not anything in nature that may not be con- verted into an instrument of mischief '* (/). An action for tort is the appropriate remedy for every infringement of right which is not a breach of contract : and as rights are infinitely various, so are torts. The rights, infringements of which constitute torts, Classification include— of rf g hts - (1) Personal rights, such as the right everyone has to have his person immune from damage. Infringements of this right give rise to actions for trespass to the person (/) See Chapman v. Pickersgill, 2 Wils. 14(>. 12 Of the Natuke of a Toet. Art. 2. (assault and false imprisonment), and when the character or reputation is attacked to actions for libel and slander. An action for negligence also lies for personal injuries caused by the negligence of another. (2) Bights of property. — These include rights in respect of corporeal and of incorporeal property. Infringements of these rights give rise to actions for trespass to land and goods, nuisance, conversion and detention of goods, infringe- ments of trade marks and patent rights, interference with easements and franchises, trade obstruction, fraud, etc. Aet. 3.-0/ Volition and Intention in relation to the ■unauthorised Act or Omission. (1) The unauthorised act or omission must be attributable to active or passive volition on the part of the party to be charged, otherwise it will not constitute an element of a tort (g). (2) Nevertheless a want of appreciation of its probable consequences affords no excuse ; for every person is presumed to intend the probable consequence of his acts. (3) Want of knowledge that the unauthorised act or omission is an infringement of right, as a rale a fords no excuse. The student must carefully distinguish between the voluntary nature of the act or omission and the want of appreciation of its consequences. It would be obviously unjust to charge a man with damage caused by some inevitable accident, over which, or over the causes of which, he had no control. On the other hand, it would be highly dangerous to admit the doctrine, that a man who does an act, or makes an omission voluntarily, should be excused (jl~) See Wear Commummers v. Adamson, 1 Q. B. D. 546 [C. A.], and 8. C., in II. L., 2 App. Cas. 743. Volition and Intention. 13 the consequences by reason of lack of judgment or of Art. 3. ignorance. So if a man consumes the goods of another, thinking they are his own, or trespasses on another's land, erroneously believing that there is a right of way, he is liable for the wrongful act he has done, and it is no excuse that he believed he had a right to do the act complained of. The following illustrations will, however, help to accen- Illustrations, tuate the difference better than pages of explanation : (1) A newspaper published a defamatory article of a person described as " Artemus Jones." Neither the author of the article nor the editor knew that there was in existence a person of the name of Artemus Jones, and therefore they could not have intended to defame any particular person. In fact there was a barrister of that name to whom readers of the article might reasonably think the article referred. As the article was in fact defamatory of him, the publishers were liable, the injury to the plaintiff being the natural consequences of their publishing the article (h). So, too, if a person makes a false defamatory statement of another, it is no defence that he believed it to be true (i). (2) A person has an unguarded shaft or pit on his pre- mises. If another, lawfully coming on to the premises on business, falls down the shaft, and is injured, he may bring his action, although there was no intention to cause him or anyone else any hurt. For the neglect to fence the shaft was an unauthorised omission, and the fall of the plaintiff was the probable consequence of it (k). (3) On the other hand, where a horse drawing a brougham under the care of the defendant's coachman in a public street, suddenly and without any explainable cause bolted, and notwithstanding the utmost efforts of the driver to control him, swerved on to the footway and knocked down the plaintiff, it was held that the defendant (A) E. Hulton $ Go. v. Junes, [1910] A. C. 20. (0 Ibid. (&) Indermaur v. Dames, L. It. 2 C. P. 311 ; White v. France, 2 C. P. D. 308. 14 Of the Nature of a Tort. Art. 3. was not liable, as the accident was not attributable to any- wrongful act or omission of the defendant or his servant (I). (4) So, too, where a man accidentally shot another without intending to do so, and without being guilty of any negligence or want of care in the use of his gun, it was held that no action would lie. He had not been guilty of any imprudent act or omitted any precaution which a reasonable and prudent man would have taken (m). Art. 4. — Malice and Moral Guilt. Except in the case of an action for malicious prosecution, evil motive is not an essential in- gredient in tort. An evil motive cannot make wrongful an act that would otherwise not be so (n). A good motive cannot justify an act that would otherwise be wrongful. Malice. "Malice in common acceptation of the term means ill- will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse " (o). It is true to say of some acts that they are not tortious unless done maliciously, provided that the term "maliciously" is used in its strict legal sense. But malice in its popular sense has very little to do with the law of torts, and no action can ever be brought for a lawful act although done out of malice. Thus, if A. intentionally and without just cause or excuse induce B. to break his contract of service with C., and damage results to C, A. commits a tort and (7) Manzoni x. Douglas, 6 Q. B. D. 145. O) Stanley v. Powell, [1891] 1 Q. B. 86. (?i) Bradford Corporation v. Pickles, [1895] A. C. 587; Allen v. Flood, [1898] A. C. 1. (o) Per Bayley, J., in Bromage v. Progser, 4 B. & C. 247, at p. 255.. Malice and Moral Guilt. 15 may be sued by C. ; and it is immaterial whether A. is Art. 4. influenced by good or bad motives ( p). He may honestly think he is acting in the best interests of B. and C. His motive is then good ; there is no " malice" in the sense of ill-will ; but the ac t is malici ous in the legal sense. But if A. by lawful means induces B. not to enter into a contract of service with C, A. commits no wrong, and C. has no cause of action however much damage he may suffer, and although A. may be acting from the most wicked and selfish motives ; for A.'s evil motive does not make wrongful his act which, apart from motive, is not a tort (q). So, too, a man has a right to pump underground water from the subsoil under his own land. And this act being itself lawful is not actionable when done spitefully for the purpose of injuring his neighbour (r). The one kind of action in which evil motive is a necessary Malicious ingredient is malicious prosecution, and there is an apparent prosecution exception in the case of libel and slander. As to these, see post, Arts. 57 and 63. Even negligence involves no moral guilt. The state of Negligence, mind of the defendant is immaterial. The only question is, What has he done or left undone ? Has he acted as a reasonable and prudent man would do in the circumstances? Not, has he done what he thought was the best thing to do ? The law pays no regard to the moral culpability of ' the defendant, but considers only whether his conduct has been reasonable and prudent as judged from the standpoint of the average man. It is said, indeed, that in order to constitute fraud there Fraud, must be some moral turpitude ; and in a sense this is true. Actionable fraud consists in the making of an untrue state- ment with the intention of deceiving and with knowledge I that it is untrue or absolutely recklessly without caring f whether it is true or untrue. The man who does this is no O) Quinn v. Leathern, [1901] A. C.495. (q) Allen v. Flood, [1898] A. C. 1. (f) Bradford Corporation v. PicMeg, [1895] A. C. 587, 16 Of the Nature of a Tort. Art. 4. doubt in most cases morally guilty ; but it is conceivable that a man may, from the highest motives and honestly believing that he is doing right, make a statement which he knows to be untrue, intending that that statement should deceive. Nevertheless his conduct, though possibly morally justifiable, is inexcusable in law. When, therefore, in the law of torts the phrase "malice " is used, it must be understood in its legal sense, i.e., as meaning a wrongful act done intentionally without just cause or excuse. Only in connection with malicious pro- secution has it a different meaning, and there, as will be seen hereafter, it does not necessarily mean ill-will against a person. Art. 5. — Of the connection of the Damage with the unauthorised Act or Omission. When the cause of action is for actual damage, the unauthorised act or omission must be shown to have been an effective cause of the damage, but not necessarily the immediate cause, that is to say, the damage must be such as would in the ordinary course of events flow from the unauthorised act or omission, as a natural and probable consequence. Illustrations. (1) The defendant, in breach of the Metropolitan Police Act, 1839, washed a van in a public street and allowed the waste water to run down the gutter towards a grating leading to the sewer, about twenty-five yards off. In consequence of the extreme severity of the weather, the grating was obstructed by ice, and the water flowed over a portion of the causeway, which was ill-paved and uneven, and there froze. There was no evidence that the defendant knew of the grating being obstructed. If it had not been stopped, and the road had been in a proper state of repair, the water would have passed away without doing any Connection of Damage with Wrongful Act. 17 mischief to anyone. The plaintiff's horse, while being led past the spot, slipped upon the ice and broke its leg. It was held that the defendant was not liable, as it was not the ordinary and probable consequence of the defendant's act that the water should have frozen over so large a portion of the street so as to occasion a dangerous nuisance (s). (2) In another case the defendant wrongfully left a house- van and steam plough for the night on the grassy side of a highway. During the evening a mare which was being driven on the highway in a cart was frightened by the house-van and plough. The mare was a kicker, but the driver did not know she was. She shied, kicked, galloped away kicking, got her leg over the shaft and fell, and kicked the driver as he fell out of the cart. The driver was killed, and it was held that his death flowed directly from the unauthorised act of the defendant. The mare being a kicker, her running away and the accident to the driver was not an unnatural or improbable consequence of her being frightened (t). (3) The plaintiff was riding a bicycle on a highway on the footpath of which was a fowl belonging to the defendant. The fowl was frightened by a dog and flew between the spokes of the bicycle wheel. Assuming it was a wrongful act to let the fowl be on the footpath, it was not a natural or probable result of its being there that it should fly between the spokes of the cyclist's wheel and upset him (u). (4) Defendants' vessel, owing to the negligence of their servants, struck on a sandbank, and becoming from that cause unmanageable was driven by wind and tide upon a sea-wall belonging to the plaintiffs, which it damaged :— Held, that the negligence of the defendants' servants was the effective cause of the damage to the sea-wall ; for it put the vessel into such a condition that it must necessarily and inevitably be impelled in whatever direction the com- bined effect of wind and tide would at the moment take it, ■ and this was towards the sea-wall (i>). 00 Sharp v. Powell, L. K. 7 C. P. 2o8. (/) Harris v. Moobs, 3 Ex. D. 268. («) Hadwell v. Righton, [1907] 2 K. B. 345. (r) Bailiffs of Romney Marsh v. Trinity House, L. K. 5 Ex. 204. Art. 5. 18 Of the Nature of a Tort. Art. 5. Explanation. Intervening act of third person. Illustrations. The above illustrations will show the application of the rule where there is a chain of causation between the wrong- ful act or omission and the damage consisting of natural causes, whether of inanimate nature or of the lower animals. But sometimes there intervenes between the wrongful act or omission and the damage some act or omission of a third person. In these cases the rule is the same, though its application may be more difficult. It may be thus expressed : Where an act of a third person intervenes between the I wrongful act or omission and the damage, the wrongful act or omission is the effective cause if what the third person does is what such a person would naturally he expected to do in the circumstances (allowing for the frailty of human nature), hut not otherwise (iv). This rule is well illustrated by cases in which carts have been left on a highway unattended. (1) In one case a cart was so left and a child seven years old got upon the cart in play, another child led on the horse and the first child was thereby thrown out and hurt. The owner of the cart was held liable, as it was a natural thing for children iu such circumstances to play with an un- attended cart (a;). And where a driver of a van left it in charge of a tail- boy who drove on and came into collision with the plaintiff's carriage, it was held that the driver's leaving the cart in charge of a boy was the effective cause of the damage ; what else could be expected of a boy than that he should try to drive the van ? (y). (2) But when a railway van was left by a railway com- pany safely on a siding, locked, braked and coupled to a train, and mischievous boys trespassed on the siding and uncoupled the van and set it running down a slope so that it crossed a level crossing and injured the plaintiff, it was held that the company were not liable, as they could not reasonably have anticipated what actually happened (z). And in another case a drunken cabdriver, who fell asleep inside his cab, was held not liable for damage caused by (w) Engelhart v. Fan-ant ,V <"<-., [1897] 1 Q. B. 240 [C. A.]. (*•) Lynch v. Nurdin, 1 Q. B. 29. (y) Engelhart v. Farrant, supra* (.-) McDowall v. Great Western Hail. Co., [1903] 2 K. B. 331 [C. A.]. Connection of Damage with Wkongful Act. ID another drunken cabdriver getting on to the box of his cab Art. 5. and driving away for his own pleasure. If the first drunken driver had thought about it at all he would not have thought of another drunken driver getting on his box and driving off (a). (3) Where a gas company supplied a defective service pipe which leaked, and a gasfitter employed to test it went to look for the leak with a lighted candle, and an explosion resulted, it was held that the explosion was the direct consequence of the defendant's negligence in supplying a defective pipe (6). (4) In the famous squib case the facts were that a person wrongfully threw a squib on to a stall at a fair the keeper of which, in self defence, threw it off again; it then alighted on another stall, was again thrown away, and finally ex- ploding, blinded the plaintiff. The liability of the person who originally threw the squib was in question, and De Grey, C.J., said : " It has been urged that the intervention of a free agent will make a difference : but I do not consider Willis and Eyal (the persons who merely threw away the squib from their respective stalls) as free agents in the present case, but acting under a compulsive necessity for their own safety and self-preservation " (c). Aet. 6. — The Act or Omission must be tm authorised. (1) An act or omission which is prima facie tortious is not actionable if it is done under some lawful excuse. (2) Among lawful excuses are that the act or omission is : (i) An Act of State ; (ii) A judicial act ; (a) Mann v. Ward, 8 T.L. R. 61)9 [C. A.]. (b) Burrow* v. March Gas and Coke Co., L. K.7 Ex. 96. (c) Scott v. Shepherd, 2 W. Bl. 892 [C. A.]. c 2 20 Of the Natuee of a Tort. Art - 6 - (iii) An executive act ; (iv) An act or omission authorised by statute; (v) An act or omission done by leave and licence. Explanation. Besides these excuses there are others of a more special character, which are dealt with in connection with those torts in relation to which they generally arise. The general excuses above enumerated are shortly explained in the following Articles. Some of them are more fully explained in later portions of this work. Art. 7. — Act of State. No action can be brought for damage resulting from an Act of State, whether the transaction constituting an Act of State between two inde- pendent states or between a state and an individual foreigner (d). Note. — It is not easy to define an Act of State ; but it may be laid down generally that Acts of State arej)f_tiw_o kinds : (1) Those which are transactions between two independent states, such as wars, treaties, annexation of territory, and so forth. An individual who suffers from such transactions has no cause of action, whatever other remedy he may have. (2) Those which are transactions between a state (i.e., the government of this or any other country) and an individual foreigner. Sir James Stephen says : (e) " I understand by an Act of State an act injurious to the person or to the property of some person who is not at the time of that act a subject of her Majesty ; which act is done by any representative of her Majesty's authority, civil or military, and is either previously sanctioned, or subsequently ratified by her Majesty. Such acts are by no means very rare, and they may, and often do, involve (r/) Halsbury's Laws of England, Vol. 1., pp. 14. 15. (V) History of the Criminal Law, Vol. II., p. (il. Act of State. destruction of property and loss of life to a considerable Art. 7 extent." Though Acts of State of this kind are not confined to warlike operations, nevertheless warlike operations come within the rule. So a foreigner who has been wounded or whose property has been destroyed in war, has no cause of action in respect thereof. It must be remembered, however, that the doctrine as to Acts of State can apply only to acts which affect foreigners, and which are done by the orders or with the ratification of the sovereign. " As between the sovereign and his subjects there can be no such thing as an Act of State." So if one British subject destroys the property of another by the express command of the King, that command is no defence in an action of tort, for "courts of law are established for the express purpose of limiting public authority in its conduct towards individuals " (/). 21 Art. 8. — General Immunity of Judicial Officers. (1) No action lies against a judge of a superior court in respect of any act done by him in his judicial capacity, even though he act oppres- sively, maliciously, and corruptly (r/). (2) No action lies against a judge of an inferior court in respect of any act done by him within his jurisdiction (h). (3) A judge of an inferior court is liable for anything he does in his judicial capacity but without his jurisdiction if he knew or had the (/) Ibid., p. 65. (.7) Scott v. Stansfield, L. B. 3 Ex. 220; Anderson v. Gvrrie, [1895] 1 Q. B. 068 [C. A.]. (/<) Dosivell v. Impey, 1 B. & C. 163, 169 ; Houlden v. Smith, 14 Q. B. 841. 22 Of the Nature of a Tort. Art. 8. means of knowing facts which would show that he had not jurisdiction (i). Note. — The Supreme Court of Judicature (including the Court of Appeal and all the divisions of the High Court of Justice) is a superior court, as also are Assize Courts. Inferior courts include county courts, the mayor's court, quarter sessions, petty sessions, and the court of a revising barrister. It will be observed that the protection given to judges is not merely for what they do lawfully, as when they sentence convicted criminals to imprisonment, but also in many cases to what they do unlawfully, as if a judge sentences an innocent person to imprisonment. If it were not for the rule now under consideration a judge would be liable to an action for assault or false imprisonment if he ordered the arrest or sentenced to imprisonment an innocent person. So, too, judges cannot be sued for slander in respect of defamatory words uttered by them in their judicial capacity. The following illustrations are cases of assault or false imprisonment. Illustrations of the immunity of judges from actions for libel and slander will be found in Art. 56. Illustrations. (1) Where the judge of the Supreme Court of Trinidad and Tobago caused the plaintiff to be imprisoned in default of finding bail, and the jury found that he had overstrained his judicial powers, and had acted in the administration of justice oppressively and maliciously, and to the prejudice of the plaintiff and the perversion of justice, the Court of Appeal held that, nevertheless, no action lay (A). (2) Similarly if a judge of a superior court acting in his judicial capacity sentences or orders a person to be im- prisoned, no action for assault or false imprisonment lies, however erroneous and corrupt the sentence or order may have been. (i) Calder v. Halket, 3 Moo. P. C. 28. (ft) Anderson v. Oorrie, [1895] 1 Q. B. 668 [C. A.]. General Immunity of Judicial Officers. 23 (3) It will be noticed that though a judge of a superior Art. 8. ■court is protected, provided the judge is acting in his judicial capacity, in the case of a judge of an inferior court (I) the protection only extends to acts done by him within his jurisdiction. But if he exceeds his jurisdiction, as by sentencing a prisoner for an offence over which he has no jurisdiction, or in a place where he has no jurisdic- tion, although he act in his judicial capacity, he is not protected, and may be sued for trespass. The protection of the rule, however, extends to all cases in which upon the facts before him he would have jurisdic- tion. If on the facts as they are brought before him a judicial officer has jurisdiction, he is excused, even though when all the facts are known if; is seen that he has none. But if he has before him facts from which he knew or ought to have known that he had no jurisdiction, he is not protected. If he assumes jurisdiction when in fact he has none by shutting his eyes to the facts, or by reason of his ignorance of the law, he is liable for any tort he commits in excess of his jurisdiction (m). (4) So where a police magistrate fined a person for not causing his child to be vaccinated, and issued a distress warrant in default of payment, he was held liable as the summons itself showed he had no jurisdiction, the prosecu- tion being more than six months after the offence (n). Art. 9. — General Immunity of Executive Officers. (1) An executive officer, such as a sheriff or gaoler or constable acting on a warrant valid on (7) It is not quite clear that the full measure of protection extends to inferior courts not of record (such as justices of the peace), but see the Justices Protection Act, 1848 (11 & 12 Vict. c. 44), s. 1, and Pease v. CJtaytor, 3 V>. & S. 620. (to) Tloulden v. Smith, 14 Q. B. 841 ; Willis v. MaelacMan, 1 Ex. D. 376. See Haggard v. Pelieier Freres, [1892] A. C. Gl [P. C.]. (ft) Polley v. Fordham, 91 L. T. 525. The case is reported on another point, [1904] 2 K. B. 345. See post, p. 99. 24 Of the Nature of a Tort. Art9. the f ace f [i anc [ issued by a person who has jurisdiction, is absolutely protected for anything he does in pursuance of the warrant (o) . (2) But a w arrant or order of a court which has no jurisdiction in the matter, is no protec- tion^), except in the case of constables, who are protected by statute for arresting under a warrant of a justice, notwithstanding any defect of jurisdiction (q). Note. — Thus, when a governor of a prison, in obedience to a warrant of commitment which directed that the plaintiff should be imprisoned in a certain gaol for seven days r detained the prisoner from August 25th (the day following that of his arrest) until August 31st, it was held that, as he had acted in obedience to a warrant issued by a court which had jurisdiction, no action for false imprisonment lay against him, whether the sentence properly ran from the day of the arrest (August 24th), or from the day when he was lodged in prison (August 25th) (r). So, too, a sheriff is absolutely protected if under a writ of fi. fa. he seizes the goods of the judgment debtor. But the writ is no protection to him if he seizes the goods of some other person, for the writ does not authorise him to do that. Art. 10. — Authorisation by Statute. (1) If the legislature directs or authorises the doing of a particular thing, the doing of it cannot be wrongful and no action will lie for any damage resulting from doing it, if it be done without negligence. O) Henderson v. Preston, 21 Q. B. I). 3f>2 [C. A.] : Olliet v. Bessey, T.Jones Hep. 214. (p) ClarJt v. Woods, 2 Ex. 395 ; Wingate v. Waite, 6 M. ,V: W. 739. (#) See Art. 120. (r) Henderson v. Preston., 21 Q. B. 1). 3G2. Authorisation by Statute. '2"> (2) An action does lie for doing that which Art - 10 - the legislature has authorised, if it be done negligently (&). (3) If the legislature merely permits a thing to be done if it can be done without causing injury, an action lies if it is done in such a manner as to cause injury (7). When the legislature expressly empowers a railway com- Explanation pany to make a railway on a particular site and to run trains upon it, no action lies against the company for any nuisance caused by reason of the making of the railway on that site and the running of traius without negligence. Acts of Parliament giving such powers usually contain provisions for compensating persons who suffer by reason of their lands being taken or injuriously affected by the exercise of the statutory powers, but no action lies, for what the legislature has expressly authorised cannot be wrongful. There is, however, an implied obligation not to be negli- gent in carrying out statutory pow 7 ers and duties, and for breach of this obligation an action lies. By many Acts of Parliament local authorities and other bodies are given general powers to execute works, such as making sewerage works for their district, erecting hospitals for infectious diseases, and the like. These things may obviously be nuisances if done or made in unsuitable places, but are not necessarily nuisances. Whether an Act is merely permissive, or is one which expressly authorises the doing of a thing, whether it be a nuisance or not, is a question of construction : but generally when the thing to be done must necessarily cause injury to someone, the Act will be construed as authorising the doing of it in any case : if the thing to be done will not necessarily cause injury, but will only do so if done in certain places or a certain way, (.v) Per Lord Blackburn : Geddis v. Proprietors of Hann Reservoir, 3 App. Cas. 430. i'>o : Hammersmith Hail. Co. v. lira nil, L. K.I H. L. 171. (J) Metropolitan Asylum District v. Hill, 6 App. Cas. 193. 26 Of the Nature of a Tort. Art. 10. the Act will be construed as permissive only. " It cannot now be doubted," says Lord Halsbury(z^), " that a railway company constituted for the purpose of carrying passengers, or goods, or cattle, are protected in the use of the functions with which Parliament has entrusted them, if the use they make of those functions necessarily involves the creation of what would otherwise be a nuisance at common law." Illustrations. (l) The running of the trains upon a railway constructed under statutory powers, caused noise, vibration, and smoke, which depreciated the value of the plaintiff's property. It was held that as the Act had authorised the running of the trains, and as the damage complained of was a necessary result, no action would lie at common law (x). (2) The Metropolitan Asylum District Board were autho- rised to purchase lands and erect buildings to be used as hospitals. But the Act did not imperatively order these things to be done. The Board erected a small-pox hospital, which was, in point of fact, a nuisance to owners of neigh- bouring lands. On these facts it was held, that the Board could not set up the statute as a defence (y). The Act was construed as meaning that a small-pox hospital might be built and maintained if it could be done without creating a nuisance, whereas the Railway Acts are construed to authorise the construction of the railway, whether a nuisance is created or not. (3) A railway company authorised by statute to use locomotives on their line, set fire to the plaintiff's planta- tion by sparks emitted from a locomotive. They had used every precaution at that time known to prevent sparks, and had been guilty of no negligence, so they were protected by their statutory authority from liability (z). If they had not («) London and Brighton Rail. Co. v. Truman, 11 App. Cas. 4."), at p. 50. (x) Hammersmith, etc. Rail. Co. v. Brand, L. R. 4 H. L. 171. (//) Metropolitan. Asylum District v. Hill. 6 App. Cas. 193. As to the evidence necessary to sustain a quia timet action for an injunction to prohibit a proposed small-pox hospital, see Att.-Gen. v. Manchester Corporation. [1893] 2 Ch. 87. (,~) Vaughan v. Taff Vale Rail. Co., 5 II. & X. 679. Volenti non fit Injuria. 27 had express powers to run locomotives they would have Art. 10. been liable at common law, even though there was no negligence in the use of the locomotive (a). But in a later ■case where sparks set fire to dry clippings negligently left by the railway company on an embankment, and the fire spread thence on to the plaintiff's land and set fire to his crops, it was held that the company was liable, by reason of negligence (b). Art. 11. — Volenti non fit injuria. A person who consents to damage being done •cannot bring an action in respect thereof. (1) The application of this rule to cases where there is express consent is simple. A man who gives another per- mission to trespass on his land, or to touch his person, cannot afterwards bring an action for such trespass. Thus j" leave and licence " is always a good defence to auy /action for tort. But of course anything done in excess of the leave and licence may be the subject of an action ; as, for instance, if I give a man permission to walk on my land, doing no damage, and he does damage. (2) The rule, however, is more difficult to apply in cases Incurring where the person damaged has not definitely consented to ns the particular act or omission causing the damage, but has voluntarily accepted the risk of damage being done by some act or omission of another. It has been held that if a person trespasses on land in defiance of a warning that there is danger in so doing (in the particular case the danger was from spring guns), he cannot bring an action for damage resulting from that danger (c). And the rule has even been extended to apply to cases where a person has accepted the risk of dangers accompanying his employment — -such as those arising from the dangerous condition of the (a) Jones v. Fes/ iui hi/ Hail. Co., L. R. 3 Q. B. 733. (&) Smith v. London and South Western Rail. Co., L. R. 6 C. P. 14. (<•) Ilott v. Wilkes, 3 B. & A. 304. See also Lygo v. NewboU, 9 Ex. -302. 28 Of the Nature of a Tort. Art. 11. place where he works (d). This application of the rule will be better appreciated later, and is fully dealt with in connec- tion with the law of negligence (e). (3) And a person is not disentitled to recover merely because he knows of the existence of danger and takes the risk of incurring it. The amount of the danger and the risks, and all the circumstances must be taken into account. So where the defendants made a trench in the only outlet from a mews and left only a narrow passage on which they heaped rubbish, and the defendant led his horse out of the mews over the rubbish, and it fell into the trench and was killed, it was held to be properly left to the jury whether or not the cabman had persisted contrary to express warning in running upon a great and obvious danger. And the jury having found for the plaintiff, he was entitled to judgment (/). Art. 12. — To ivhat Extent Civil Remedy inter- fered with where the unauthorised Act or Omission constitutes a Felony. (1) Where any unauthorised act or omission is, or gives rise to consequences which make it, a felony, and it also violates a private right, or causes private and peculiar damage to an individual, the latter has a good cause of action. (2) But (semble) the policy of the law will not allow the person injured to seek civil redress, if he has failed in his duty of bringing, or endea- vouring to bring, the felon to justice. (3) Where the offender has been brought to justice at the instance of some third person (d) Thomas v. Quartermaine, 18 Q. B. D. G8">. (p) See^o.s£, Art. 88. (/) dayards v. DetJrick, 12 Q. B. 439. See the observations of Rkamwell, L.J., on this case in Lax v. Darlington Corporation, 5 Ex. I).. 28. 35. Civil Kemedy for Felonious Act. 29 injured by a similar offence, or where prosecu- Art - 12 - tion is impossible by reason of the death of the offender, or (?) by reason of his escape from the jurisdiction before a prosecution could by reasonable diligence have been commenced, the right of action is not suspended (g). N.B. — Kemember the rule does not apply — 1. To misdemeanors. 2. Where there is no duty on the part of the plaintiff to prosecute, as where he is not the person injured by the felony (//). 3. Where the felony teas not committed by the defendant, but by some third person (i). It is expressly provided by Lord Campbell's Act (see Death caused post, Article 33), that actions for damages brought in iy telou y- respect of the death of any person under that Act, shall be maintainable "although the death shall have been caused under such circumstances as amount in law to felony." (1) Where, in an action for seduction of the plaintiff's Illustrations, daughter, a paragraph of the claim alleged that the defen- dant administered noxious drugs to the daughter for the purpose of procuring abortion ; it was held, that the para- graph could not be struck out as disclosing a felony for which the defendant ought to have been prosecuted, inasmuch as the plaintiff was not the person upon whom the felonious act was committed, and had no duty to prosecute (j). (2) So, where A. has stolen goods, and B. has innocently bought them from A., the owner may bring an action of (;/) Per Baggallay, L.J.. in Ex parte Ball, He Shepherd, 10 Cli. 1). 667, at p. 673 ; and sic per Cockbuen, O.J., in Wells v. Abrahams, 1,. K. 7 (.1 I'.. 554, at p. o57. (A) Appleby v. Franklin, 17 Q. B. D. 93. (f) White v. Spettigue, 13 M. & W. 603. (j) Appleby v. Franklin, 17 Q. B. D. 93; and see also Osborn v. Gillett, L. R. *8 Ex. 88. 'SO Of the Nature of a Tort. Art. 12. trover against B., although no steps have been taken to bring A. to justice, for B. is not guilty of felony (k). How to It is extremely doubtful how the rule can be enforced {I). enforce the j t j s n0 g roun d for the judge to direct a nonsuit (m). It cannot be raised by a summons to strike out the statement of claim (n) ; nor by pleading the felony in the defence, because the effect of that would be to allow a party to set up his own criminality. But it has been suggested, that if an action were brought against a person who was either in the course of being prosecuted for felony, or was liable to be prosecuted for felony, the summary jurisdiction of the court might be invoked to stay the proceedings, which would involve an undue use, probably an abuse, of the process of the court (o). But there would be great difficulty in taking this course, and there is no precedent for it (I). In Ireland, a Divisional Court has declined to stay of its own motion, without any application by the defendant, an action of assault on the ground that the assault amounted to a felony, and had not been prosecuted (p). (/,•) White v. Spettigue, 13 M. & W. 603. (I) See per Bramwell, L.J., in E.v parte Ball, Re Shepherd, 10 Ch. D. 667. (w) Wells v. Abrahams, L. II. 7 Q. B., at p. 563. («) Roope v. D'Avigdor, 10 Q. B. D. 412 ; Midland Insurance Go. x. Sniith,& Q. B. 1). 561. (o) Wells v. Abrahams, supra. O) A. v. B., 2i L. R. lr. 231 ; S. C. ml nom., S. v. S., 16 Cox C. C. 566. CANADIAN NOTES. 30a Canadian Notes to Chapter I op Part I. Liability for Tortious Acts. A wrongful act committed by a person, which causes damage to another without any default of the person injured is action- able. So a railway company. has been held liable where its sec- tion men in promoting the objects for which they were employed did so in a careless or negligent way, thereby injuring a third person. Vars v. G.T.R,, 23 U.C.C.P. 143, 150. And where a wrecking crew employed in lifting an engine which had been derailed, frightened the plaintiff's horse by their negligent action in letting off steam and the plaintiff was injured by the horse running away, the railway company was held liable. Stott v. G.T.R., 24 U.C.C.P. 347 ; see also Hammond v. G.T.R., 4 Can. Cr. Cas. 232, and Forsythe v. Can. Pac. Ry., 4 Can. Ry. Cas. 402. It may be that the commission of a tort gives a plaintiff a "cause of action" and imposes on a defendant legal liability. But in that use of the expressions the "cause of action" does not arise from the "legal liability." The cause of action and the legal liability arise simultaneously from the tortious act. Hime v. Coulthard, (1910), 20 Man. R. 134. Rule 815 of the King's Bench Act (Man.), as to the issue of attaching orders against property says that the property of the defendant may be attached for the payment of "a debt or the satisfaction of a cause of action arising from legal liability." An action arising wholly in tort is not within this rule and an attachment cannot issue. Ibid. A further consideration arises from Manitoba rule 817. That rule requires an affidavit stating, inter alia, that the defendant is "legally liable" to the plaintiff in damages in the sum claimed in the action. Robson, J., said in Hime v. Coulthard, 20 Man. R. 134: "No matter what other cases might be brought within this language, T do not see how it can be complied with in the various actions of tort where the damages are not given merely by way of resti- tution, but may be of an exemplary or punitive nature. A plaintiff cannot at the commencement of his action truly swear 30a— l.t. 1. 306 CANADIAN NOTES. that the defendant is then liable to him in a certain sum which a jury may at a later date see fit to award as punitive damages. See also per Perdue, J., in Emperor of Russia v. Proskouria- koff, 18 M.R. 56, at p. 73, and per Richards, J., in Mclntyre v. Gibson, 17 M.R. 423 at pp. 424 and 425. In any case in which a party is indictable for a common nuis- ance any person suffering particularly from the nuisance may have his action for damages. Watson v. The Gas Co., 4 U.C.R. 158. Whenever an act done would be evidence against the existence of a right, that is an injury to the right, and the party injured may bring an action in respect of it. Mitchell v. Barry, 26 U.C.R. 416. An action will lie by a husband against his father-in-law when the latter has, without sufficient cause, by a display of force taken the wife away from the house of her husband against his will, she continuing absent, whereby he has lost the comfort and help of her society; and substantial damages may be awarded in such a case. Metcalf v. Roberts, 23 O.R. 130. Whenever the injury done to the plaintiff results from the immediate force of the defendant himself, whether intentionally or not, the plaintiff may bring an action of trespass. Anderson v. Stiver, 26 U.C.R. 528. The reasonable man, to whose ideal behaviour we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely pos- sible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant's place should have foreseen as likely to happen, there is no wrong and no lia- bility. Kellett v. B. C. Marine Ry. Co., (1911) 16 B.C.R, 196, 198. It is not negligence per se for the driver of a horse of a quiet disposition standing in the street to let go the reins while he alights from the vehicle to fasten a head-weight, there being at the time little traffic and no noise or disturbance to frighten the CANADIAN NOTES. 30c animal; and the owner of the horse is not responsible for dam- ages caused by the horse in running away when frightened by a sudden noise just after the driver has alighted. Sullivan v. Mc William, 20 O.A.R. 627. "Where the necessary and unavoidable consequence of a lawful act done by a person on his own land (such as the erection of a mill-dam) is to produce an injury to his neighbour, an action lies for such injury; but it is otherwise if such an act per s< would not be necessarily or probably injurious, bue becomes so from a cause not under the control of either party. In such case negligence must be proved to render a defendant liable. Peters v. Devinney, 6 U.C.C.P. 389 ; Dean v. McCarty, 2 U.C.Q.B. 448 ; Mills v. Dixon, 4 U.C.C.P. 222. "Where a man, acting as a reasonable man would ordinarily do under the circumstances, voluntarily places himself in a position of danger in the hope of saving his property from probable injury and of preventing probable injury to the life or property of others, and sustains hurt, the person whose negligent act has brought about the dangerous situation is responsible in damages. Town of Prescott v. Connell, 22 S.C.R. 147. A person entering upon premises on the express or implied invitation of the occupant is entitled to assume that they will be in reasonably safe condition, but one who visits them for his own purposes and without the knowledge of the occupant, does so at his own peril. Rogers v. Toronto Public School Board, 23 0. A.R. 597. Trespass to the person to be actionable must be either inten- tional or the result of negligence on the part of the defendants McLeod v. Meek (1898), 6 Terr. L.R. 431. Civil Action when Tortious Act is also a Crime. Assault. A summary conviction on complaint of the person assaulted on a charge of common assault followed by payment of the fine imposed is by statute a bar to a subsequent civil action for dam- ages for the same assault instituted by the person assaulted. 30(Z CANADIAN NOTES. Hebert v. Hebert (No. 1), 15 Can. Cr. Cas. 258, 34 Que. S.C. 370, affirmed. Hebert v. Hebert (No. 2), 16 Can. Cr. Cas. 199, 37 Que. S.C. 339 ; Larin v. Boyd, 11 Can Cr. Cas. 74, 27 Que. S.C. 472. But where a defendant charged with having committed an assault with intent to do bodily harm, on being asked by the jus- tice whether he would be tried before him summarily, or by a jury, elected to be so tried by him, and pleaded guilty to the charge. This was objected to by the prosecutor, when the justice stated that he would first ascertain the extent of the assault. After hearing the evidence, he adjudicated upon the case and drew up a conviction imposing on the defendant a fine, and the costs, which the defendant paid : — Held, that the justice in making the conviction was acting under the special statutory authority for the trial of indictable offences conferred by s. 783, sub-s. (c) and s. 786, under which a defendant is not relieved from further civil proceedings; and that the defendant was liable to a civil action for the assaults. Clarke v. Rutherford, (1901) 2 O.L.R. 206; 5 Can. Cr. Cas. 13, In so far as the Dominion Parliament have the jurisdiction to provide that the civil remedy shall not be suspended, section 13 of the Criminal Code of Canada (1906), will apply. By that section it was enacted that no civil remedy for any act or omis- sion shall be suspended or affected by reason that such act or omission amounts to a criminal offence. The former rule, excepting in the Province of Quebec, was that on grounds of public policy if it appeared on the trial of a civil action that the facts amounted to felony, the judge was bound to stop the civil proceedings and non-suit the plaintiff in order that public justice might first be vindicated by a criminal prose- cution. Walsh v. Nattress, 19 U.C.C.P. 453; Livingstone v. Massey, 23 U.C.Q.B. 156; Williams v. Robinson, 20 U.C.C.P. 255; Pease v. McAloon, 1 Kerr (N.B.) 111. The civil remedy was held to be suspended until the defendant charged with the fel- ony should be either acquitted or convicted thereof. Brown v. Dalby, 7 U.C.Q.B. 162; Taylor v. McCulloch, 8 Ont. 309. ( 31 ) CHAPTER II. BREACH OF STATUTORY DUTIES. Art. 13. — Breach of Duty created for Benefit of Individuals. (1) When a statute creates a new duty for the benefit of an individual or a class, and does not provide any special remedy, an action for damages lies for breach of the duty (a). (2) If the statute provides a special remedy, the party injured cannot bring an action for damages (6), but he may have an injunction unless the statute expressly excludes that remedy (c). Under many Acts of Parliament, local authorities and Explanation. other public bodies have imposed on them duties for the benefit of the public generally, and a breach of the duty, though it may affect an individual specially, is liable to affect the public at large, or all the persons in a district. Such duties are those which are imposed on sanitary autho- rities to provide proper systems of sewers, and on gas and water companies to provide gas and water sufficient in quantity and quality. If an individual suffers by breach of these duties, he cannot generally resort to an action, but must, proceed by mandamus, indictment, or such other remedy as may be available. (//) Per Willes, J., in Wolverliampton New Waterworks Co. v Bawhesford, 28 L. J. C. P. 242. (4) Hid. (<■) Stevens v. Chown, Stevens v. Clark, [1901] 1 Ch. 894. 32 Breach of Statutory Duties. Art. 13. It is different, however, where the duty is imposed for the benefit of an individual or a limited class of persons ; in such cases a breach of the duty is a wrong to the individual or to each member of the class for whose benefit the duty is created, and a breach of that duty is a tort for which an action for damages will lie, unless the legislature has pro- vided some other remedy, such as a penalty. If a special remedy is provided that impliedly excludes the remedy by action for damages. But it does not even impliedly exclude the remedy by injunction. Instead of taking the special remedy provided by the statute, the person injured may claim an injunction to restrain threatened breaches of the duty, unless that remedy is expressly excluded by the statute. In every case, however, it is a question of construction of the statute by which the duty is created. A statute may give a remedy by action for breach of a public duty, or may create a private duty and yet say that there shall be no remedy for its breach. Illustrations (1) Under the British Columbia Crown Procedure Act, it is the duty of the provincial secretary to submit to the lieutenant-governor a Petition of Eight left with him for that purpose. His definite refusal to do so gave the petitioner a cause of action for damages(e). (2) If an employer is guilty of a breach of a provision in the Pactory x\cts, by which he is required to fence dangerous machinery, a workman who is injured in consequence thereof, has a cause of action against the employer for such breach (/). Art. 14. — Breach of Duty created for Benefit of Public. (1) ^Yhen a statute creates a duty for the benefit of the public, no action lies at the suit of an individual for damages occasioned by mere neg- lect to perform that duty, unless the statute 00 Fulton v. Norton, [1908] A. C. 451 [P. C.]. (/) Groves v. Lord Wimborne, [1808] 2 Q. B. 4U2 [C. A.]. Breach of Duty for Benefit of Public. 33 clearly shows the intention of the legislature Art. u - that there should be such a remedy (g). A sanitary authority in London failed to perform the Illustration, duty imposed upon them by s. 29 of the Public Health (London) Act, 1891, of removing street refuse (including snow) from the streets. The plaintiff suffered injuries by a fall caused by snow which the sanitary authority had neglected to remove. It was held that he had no cause of action (//). Art. 15. — Highway Authorities not Liable for Nonfeasance. A highway authority is not liable for damages resulting from mere nonfeasance, i.e., for mere neglect to perform its statutory duty of repairing the highway : but is liable for damage resulting from misfeasance, i.e., for doing something which creates a nuisance in the highway (?'). Before the present highway authorities were created Explanation, by Act of Parliament, the rule was established that a surveyor of highways was not liable for not repairing a highway, the proper remedy being indictment of the inhabi- tants (k). And many recent cases have shown that the same rule is applied to the statutory bodies to whom the duty of repairing highways has been transferred by statute, unless there is anything in the statute to show an intention to make them liable for nonfeasance (I). The rule applies also to bridges which are highways (m). (#) Atkinson v. Newcastle Waterworks Co., 2 Ex. D. 441 [C. A.] ; Saunders v. Hollorn District Board of Works, [1895] 1 Q. B. 64. (/() Saunders v. Holborn District Board of Works, supra. (i) Cowley v. Newmarket Local Board, [1892] A. C. 345. Ik) Russell v. Men of Devon, 2 T. R. 607. (0 Municipality of Pictou v. Geldcrt, [1893] A. C. 524 [P. C] ; Gibraltar Sanitary Commissioners x. Orjila, 15 App. Cas. 400 [P. C.J ; Sydney Municipal Council v. Bourke, [1895] A. C. 433. (w) Russell v. Men of Devon, supra ; M'Kinnon v. Penson, 8 Ex. 319. 34 Beeach of Statutory Duties. Misfeasance. Art. 15. When a highway authority creates an artificial work in a highway, they will be liable if that work is a nuisance and causes damage to an individual, for the creation of a nuisance is misfeasance. And they may also be liable if by their negligence they allow it to get out of repair so as to become a nuisance, for that is not mere non-repair of the highway. They actively cause a nuisance by putting the thing there, if the thing gets out of repair so as to be a nuisance (n). Highway and Sometimes the same local body is both highway autho- sanitary r ^y anc [ san itary authority, and in their capacity of sanitary authority they may put in the highway a manhole or grating for sewers. If this thing gets out of repair by reason of their negligence (but not otherwise), they are liable (o). But if it becomes a nuisance by reason of the surface of the roadway getting worn down round it, whilst the thing itself is not out of repair, they are not liable. Not as highway authority, for their only breach of duty is not repairing : and not as sanitary authority, for the thing they have put there is not out of repair, and they have been guilty of no negligence (p). Illustrations. (1) A highway authority removed a fence which their predecessors had erected to protect the public from a dangerous ditch. A man driving along the road drove into the ditch, and was drowned. Removing the fence was misfeasance, and the highway authority was liable (q). (2) An urban authority lawfully made a manhole in the street. The cover was properly made and in good order, but the surface of the road was allowed to wear down so that the cover projected above the surface. The plaintiff's horse stumbled over this, and was injured. The only breach of duty was not repairing the surface of the road, and this was nonfeasance, for which the council was not liable (r). («) Borough of Bathurst v. Macphersoti, 4 App. Cas. 256 [P. C] ; Lambert v. Lowestoft Corporation, [1901] 1 K. B. 590. («) See ante, Art. 1 1 . (j/) Thompson v. Brighton Corporation, Oliver v. Horsham Local Board, [1894] 1 Q. B. 332. (7/) Whyler v. Bingham Mural District Council, [1901] 1 Q. B. 45. (/•) Thompson v. Brighton Corporation, supra. Authorities not Liable for Nonfeasance. 35 (3) By the negligence of a person employed by the defendants, the highway authority of Canterbury, a heap of stones was left by the side of a road without a light. The plaintiff driving by in the dark, was upset by it and injured. The negligence consisted in putting the heap of stones by the roadside, and this was misfeasance for which the defendants were liable (s). (.«) Foreman v. Canterbury Corporation, L. R. 6 Q. B. 214. Art. 15. d 2 CANADIAN NOTES. 36a Canadian Notes to Chapter II. of Part I. Breach of Statutory Duty. In the Alberta case of Urquhart v. Canadian Pacific R. W. Co. aOOO), 11 W.L.R. 425, a judgment of the Full Court of Alberta, The opinion was expressed that a railway company in Canada is under an obligation or duty to give correct information to intending shippers respecting the rates fixed by the board of railway commissioners, and which are the only legal rates which can be charged by the railway company, and that if an official or agent of the company innocently quotes a different rate to the prejudice of the shipper, the company thereupon becomes liable to an action for damages for a breach of such duty. But in the later case of Gillis Supply Co. v. Chicago, Milwaukee and Puget Sound Ry. (No. 2), (1911), 16 B.C.R. 254, it was held that there is no such duty. Where a guest in a burning hotel is injured in consequence of the proprietor having failed to provide the means of fire escape required by the Fire Escape Act, an action for damages will lie against the proprietor, notwithstanding that a penalty is imposed for breach of the statutory duty, The defence arising from the maxim volenti non fit injuria (the guest being aware of the lack of means of fire escape and having made no objection) is not applicable where the injury arises from a breach of a statutory duty. The fact that the guest delayed his exit in order to rescue a fellow-guest .and thereby lost his own chance of getting out safely is not as a matter of law "contributory negligence"; whether the plaintiff did anything which a person of ordinary care and skill would not have done under the circumstances or omitted to do anything which a person of ordinary care and skill would have done, and thereby contributed to the accident, was for the jury to decide. Love v. Fairview, 10 B.C.R. 330. The statutory obligation to fence imposed upon a railway com- pany by statute can only be taken advantage of by the adjoining proprietor or by one who is in occupation of the lands of such proprietor with his license or consent. Daniels v. Grand Trunk 36a — l.t. 1. 366 CANADIAN NOTES. R. W. Co., 11 O.A.R. 473 ; Douglas v. Grand Trunk R. W. Co., 5 O.A.R. 585; Conway v. Canadian Pacific. R. W. Co., 12 O.A.R, 708, and McFie v. Canadian Pacific R. W. Co., 2 Man. R, 10. The owner of land adjoining a highway has, under R.S.O. 1897, c. 243, sec. 6, such a special property in the shade and ornamental trees growing on such highway opposite to his land as to entitle him to maintain an action against a wrongdoer to recover dam- ages for the cutting down or destroying such trees, and he is not restricted to a prosecution for the penalty provided by the statute. Douglas v. Fox, 31 U.C.C.P. 140. The defendants sold an air-gun, without ammunition, to a boy of thirteen, who procured ammunition, and used the gun to shoot birds with ; while he was engaged in that pastime in a city street, one of the bullets injured the plaintiff, who sued the defendants for damages for her injuries, alleging negligence. The trial Judge left it to the jury to find whether the defendants were negligent in intrusting the gun to the boy, telling them that the question which went to them was wholly one of negligence, and also telling them that, having regard to the provisions of sec. 119 of the Criminal Code, the selling of the gun to the boy might in itself be evidence of negligence. The jury found a general ver- dict in favour of the plaintiff, and assessed the damages at $800 :— Held, that there was evidence for the jury that the plaintiff's injuries were caused by the defendants' negligence; and that there was no misdirection. Semble, also, that the object of sec. 119 was to prevent such accidents as that which happened to the plaintiff; and the trial Judge was right in his view that, apart altogether from the ques- tion of negligence, as the gun was sold to the boy in contraven- tion of the provisions of that enactment, the defendants were liable to answer in damages to the plaintiff, the unlawful act being the proximate cause of her injury. Fowell v. Grafton, 22 O.L.R. 550, affirming 20 O.L.R. 639. Statutory Liability to Repair Roads and Streets. An action does not lie against a municipal corporation for damages in respect of mere non-feasance unless there has been CANADIAN NOTES. 36c a breach of some duty imposed by law upon the corporation. Pictou v. Geldert, [1893] A.C. 524; City of St. John v. Campbell, 26 S.C.R. 1 ; City of Halifax v. Walker, 1 S.C. Cas. 569 ; Corn- wall v. Derochie, 24 Can. S.C.R. 301. If snow collect on a certain spot on a public sidewalk and by the thawing or freezing the travel upon it becomes specifically dangerous, and if this special difficulty can be conveniently cor- reeted by removing the snow or ice, or by other reasonable means, there is the duty on the person or body, on whom the care or reparation rests, to make the place fit and safe for travel. Cornwall v. Derochie, 24 Can. S.C.R. 301 ; Rounds v. Corpora- tion of Stratford, 26 U.C.C.P. 11; Roe v. Corporation of Luck- now, 21 O.A.R. 1; Caswell v. St. Mary's Road Co., 28 U.C.Q.B. 247. Under section 722 of the Winnipeg Charter, which is the same in effect as section 667 of the Municipal Act, R.S.M. 1902, c. 116, the corporation will be liable in damages for injury sustained by a person in consequence of a fall caused by stepping on and so breaking down a rotten plank in a sidewalk laid down by the cor- poration on a public highway, and the said sidewalk being very old and decayed underneath, it being shown that the defect, although not apparent, would have been detected if there had been a proper and adequate system of inspection employed. Ive- son v. Winnipeg, 16 Man. R. 352. In determining the liability of municipalities to keep high- ways in repair the local conditions should be considered, and if having regard to these conditions the roadway was in such a rea- sonable state of repair that those desiring to use it might with reasonable care pass to and fro in safety, the municipality is not liable. Williams v. North Battleford (1911), 4 Sask. R. 75. A township municipality was held liable in damages for an injury arising through the non-repair of a sidewalk on a high- way within its limits, notwithstanding the fact that the sidewalk was built by voluntary subscription and statute labour, and although the municipality never assumed any control over it, nor was any public money or statute labour expended on it with the knowledge of the council, where the latter was aware of the existence of the sidewalk, and there has been opportunity and 36cZ CANADIAN NOTES. time to repair it. Madill v. Township of Caledon, 3 O.L.R. 66 ; affirmed on appeal, 3 O.L.R. 555. The mere allowance of the formation and continuance of obstructions or dangerous spots in the highways due to accu- mulation of snow or ice may amount to non-repair, for which the corporation would be liable, but in every such case the ques- tion to be determined is whether, taking all the circumstances into consideration, it is reasonable to hold that the municipality should have removed the danger. City of Kingston v. Drennan, 27 S.C.R. 46 ; Taylor v. City of Winnipeg, 12 M.R. 479 ; Atche- son v. Portage la Prairie, 10 M.R. 39. As to the effect of statute law requiring proof of "gross negli- gence" on the part of the corporation, see Ince v. Toronto, 31 Can. S.C.R. 323, affirming 27 Ont. App. 410. A preliminary notice of claim is usually required by statute. See Young v. Township of Bruce (1911), 24 O.L.R. 546. ( 37 ) CHAPTEE III. RELATION OF CONTRACT AND TORT. Art. 16. — Distinction between Actions for Tort (did for Breach of Contract. (1) If the cause of complaint is for breach of a contractual duty (that is to say, is for an act or omission which would not give rise to any cause of action without proof of a contract), the action is one of contract. (2) But if the relation of the plaintiff and the defendant be such that a duty arises from the relationship, irrespective of contract, for a breach of that duty the remedy is an action of tort (a). Formerly a plaintiff had to be careful to frame his action Comment, either in tort or in contract, and the rule then was that if the act or omission complained of was both a breach of duty arising apart from contract, and a breach of contract, the plaintiff might sue in contract or tort (b). But now the courts do not regard the form of pleading so much as the real nature of the action. The distinction between tort and contract is chiefly of importance upon the question of the amount of costs recoverable (c). The rule is that where , the wrong is in substance tort, the plaintiff cannot merely (a) See Kelly v. Metropolitan Bail. Co., [1895] 1 Q. B. 911 [C. A.], per A. L. Smith, L.J., at p. 'J17. (/;) Brown v. Boorma?i, 11 CI. & F. I. (c) See County Courts Act, 1888, s. 116, and County Courts Act, 1903, s. 3. 38 Eelation of Contract and Tort. Art. 16. by suing in contract entitle himself to a larger measure of damages (d). Illustrations. (1) A railway company owes to a passenger, irrespective of any contract, a duty to take care. The taking of a ticket also constitutes a contract to carry. If the servants of the railway company are negligent, whether by acts of omission or by acts of commission, the cause of action is in substance a tort, being a breach of a duty arising irrespective of contract, although in form the action might be framed as a breach of contract (e). (2) A person who takes in a horse under a contract of agistment, impliedly undertakes not to be negligent in respect of the horse. But as he is a bailee for reward, the same duty to take care arises irrespective of the contract, and an action for not taking care is in substance an action of tort for negligence (/). So in all cases of actions between bailor and bailee, if the duty arises out of the bailment at common law, a breach of that duty gives rise to an action for tort ; but if the duty only arises out of a contract between the parties, and would not apart from such con- tract arise from the mere relationship of bailor and bailee, a breach of the duty is properly the subject of an action for breach of contract (g). Art. 17. — Privity not necessary where the Remedy is in Tort. When something done in pursuance of a contract between two persons gives rise to a relationship between one of them and a third person, such that the one owes a duty to the third person, irrespective of the contract, the (7/) Chine ry v. VialJ, 5 H. & N. 295. (r) Taylor v. Manchester, Sheffield and Lincolnshire Hail. Co.. [1895] 1 Q. B. 134 [C. A.] ; Kelly v. Metropolitan Bail. Co., [IS!).")] 1 Q. B. 914 [C.A.]. (/) Turner v. Stallibrass, [1898] 1 Q. B. 56 [C. A.]. Qj) Ibid., at p. 59, per Collins. L.J. Privity not Necessary. 39 third person cannot sue on the contract because Art 17 - he is not privy to it, but he can sue in tort for breach of the duty arising, irrespective of the contract. (1) A man employs a surgeon to attend his wife or his Illustrations, infant son. By reason of the surgeon's negligence, the patient is injured. There is a contract between the man who calls in the surgeon and the surgeon, but none between the surgeon and the patient. But irrespective of the con- tract, the surgeon owes a duty to take care by reason of the relationship of surgeon and patient. And for breach of this duty the patient can sue in tort (h). (2) A passenger by train lost his luggage by reason of the negligence of the company's servants. The passenger's fare had been paid by his master. There was accordingly no contract between the passenger and the railway com- pany — nevertheless the company were as bailees bound to take care of the passenger's luggage, and for breach of that duty the passenger could sue in tort (?'). (3) Again, where the defendant sold to A. a hair-wash, to be used by A.'s wife, and professed that it was harmless, but in reality it was very deleterious, and injured A.'s wife, it was held that she had a good cause of action against the defendant, for the hairdresser owed A.'s wife a duty, irrespective of contract, not to send out for her use a dangerous hair-wash (k). (4) But when no duty, irrespective of contract, can be shown, a person who is injured by another's negligence in carrying out a contract has no cause of action. Thus, in Le Lievre v. Gould (/), mortgagees lent money by instal- ments to a builder, on the faith of certificates negligently granted by the. defendant, who was a surveyor appointed, (//) Gladwcll v. Steggall, 5 Ring. N. C. 733; Pippin v. Skeppard, 11 Price. 400. (i) Marshall v. York, Newcastle and Berwick Rail. Ciri.,11 C. B.655, and see Mettx v. Great Eastern Bail. Co.. [1895] 2 Q. B. 387 [C. A.]- (7.') George v. Shivington, I>. R. 5 Ex. 1. (/) [1893] 1 Q. B. 491 [C. A.]. 40 Eelation of Contract and Toet. Art. 17. not by the mortgagees, but by the builder's vendor. The certificates were inaccurate, and the mortgagees thereby suffered loss, for which they claimed compensation from the defendant : — Held, that as there was no contractual relation between them, the defendant owed no duty to the plaintiffs, and the action could not be maintained. It was urged that a certificate carelessly issued was as dangerous as an ill-made gun or a poisonous hair-wash, and that on that ground the defendant was liable ; but the court would not admit the analogy. Of course, however, if the certificate had been fraudulent, i.e., issued with intent to deceive the plaintiff, then, independently of any contractual relation, the defendant would have been liable in an action of deceit. (5) So, too, when A. built a coach for the Postmaster- General, B. horsed it and hired C. to drive it, the coach broke clown from a defect in its construction, and C. was consequently injured, it was held that A. owed no duty to C. apart from contract, therefore C. could not sue A. in tort. Nor, of course, could C. have sued A. in contract, as C. was no party to the contract between A. and B., and A. was no party to the contract between B. and C. (m). Art. 18. — Duties gratuitously undertaken. When a person gratuitously undertakes to perform any service for another, then although no action will lie for not performing the service (there being no consideration for the promise) yet an action will lie for negligence in the performance of it (n). A duty to take care may arise apart from any contract whatever, and for breach of that duty the remedy is an action of tort. O) Winterbvttom v. Wright, 10 M. .5c W. 109, followed in Km-l v. Lubbock. [1905] 1 K. B. 25:i [C. A.]. (") Coggs v. Bernard, 1 Sm. L. C. 177. Duties Gratuitously Undertaken. 41 (1) Thus, in Coggs v. Bernard, the defendant gratuitously Art. 18. promised the plaintiff to remove several hogsheads of IlluBtrations- brandy from one cellar to another, and, in doing so, one of the casks got staved through his gross negligence. Upon these facts it was decided that the defendant was liable ; for although his contract could not have been enforced against him, yet, having once entered upon the performance of it, he thence became liable for all misfeasance. (2) In Doorman v. Jenkins (o), a keeper of a coffee house gratuitously undertook the custody of money for a customer. It was lost whilst in his care by his negligence. He was held liable in an action for breach of the duty to take care arising from his becoming bailee of the money. (3) Where the plaintiff was invited by the defendants' servant to ride on an engine, and he did so for his own convenience, and was injured by the negligence of the defendants' servants, the defendants were held liable ; as by gratuitously undertaking to carry the plaintiff, the defendants came under a duty to exercise care, and they were liable in an action of tort for breach of that duty (p). (p) 2 A. & E. 256. (^) Harris v. Perry $ Co., [1903] 2 K. B. 219 [C. A.]. CANADIAN NOTES. 42a Canadian Notes to Chapter III. of Part I. Relation op Contract and Tort. A physician wrote a prescription for the plaintiff and directed that it should he charged to him hy the druggist who compounded it, which was done. His fee, including the charge for making up the prescription, was paid by the plaintiff. The druggist's clerk by mistake put prussic acid in the mixture and the plain- tiff in consequence suffered injury. It was held that the drug- gist was liable to the plaintiff for negligence but the physician was not. Stretton v. Holmes, 19 O.R. 286; and see Howard v. City of St. Thomas, 19 O.R. 719. The ticket issued to M., a traveller by rail from Boston, Mass., to St. John, N.B., entitled him to cross the St. John Harbour by ferry, and a. coupon attached to the ticket was accepted in pay- ment of his fare. The ferry was under the control and manage- ment of the corporation of St. John. It was held that an action would lie against the corporation for injuries to M,. caused by the negligence of the officers of the boat during the passage. Mayor of St. John v. MacDonald, 14 S.C.R. 1. A man dealing with others is under no duty to take precau- tions to prevent loss to the latter by the criminal acts of third persons, and the omission to do so is not, in itself, negligence in law. (Bank of Hamilton v. Imperial Bank, 27 Ont. App. 590, affirmed.) Imperial Bank v. Bank of Hamilton, 31 Can. S.C.R. 344, affirmed [1903] A.C. 49. Where the defendants had contracted to instal an additional steam radiator for the owner of the building of which plaintiff was the tenant and after doing so the defendants' workman turned on the steam at the request of the caretaker of the build- ing and damage followed, it was held that the act was outside the scope of his employment and that defendants were not liable. Malcolm v. McNichol, 16 Man. R. 411. And see Sievert v. Brook- field, 37 N.S.R. 115. 42a— l.t. 1. 426 CANADIAN NOTES. Tort in Gratuitious Undertakings. The defendant, a general insurance agent, gratuitously under- took to have an additional policy placed on the plaintiffs' pro- perty, and also to notify the companies already holding policies of this additional insurance. A loss occurred, and, owing to defendant having neglected to give the notice, the plaintiffs had to compromise their claim at $1,000 less than they otherwise would have recovered : — Held, that the defendant having under- taken, though gratuitously, to perform the business, and having actually entered on the execution of it, was liable for the negli- gence which had caused loss to the plaintiffs. Baxter v. Jones, 6 O.L.R. 360 (C.A.), affirming 4 O.L.R. 541. In the absence of evidence of gross negligence, a carrier is not liable for injuries sustained by a gratuitious passenger. (Mof- fatt v. Bateman, L.R, 3 P.C. 115, followed. Harris v. Perry & Co., [1903] 2 K.B. 219, distinguished.) Nightingale v. Union Colliery Company, 35 Can. S.C.R. 35, affirming 9 B.C.R. 453; 2 Can. Ry. Cas. 47. And an involuntary bailee of unclaimed goods owes no duty to tb,e unknown owner to take care of them. Cosentino v. Dom- inion Express Co., 16 Man. R. 563. ( 43 ) CHAPTEE IV. VARIATION IN THE GENERAL PRINCIPLE WHERE THE UNAUTHORISED ACT OR OMISSION TAKES PLACE OUTSIDE THE JURISDICTION OF OUR COURTS. Art. 19. — Torts committed Abroad. An action will lie in the English Courts for a tort committed outside England, provided : (a) It is actionable according to English law and not justifiable according to the law of the country where it was com- mitted (a) ; and (b) It is a tort which is not of a purely local nature, such as a trespass to, or ouster from, land, or a nuisance affecting- hereditaments. Note, that in order to comply with paragraph (a) it is not necessary that the tort should be actionable according to the law of the country where the act was committed, provided that it is not justifiable by that law ; that is to say, that it is an act in respect of which civil or criminal proceedings may be taken in that country. (1) Thus, in the leading case of Mostyn v. Fabrigas (6), it Illustrations, was held that an action lay in England against the governor of Minorca for a false imprisonment committed by him in Minorca, the plaintiff being a native Miuorquin. (2) Some ammunition, which was British goods, was seized on board a British ship by an officer of the British (a) MachaAo v. Fontes, [1897] 2 Q. B. 231 [C. A.] ; Oarr v. Fracis Times $ Co., [1902] A. C. 176. (//) 1 Sm. L. C. 591. 44 Variation in General Principle. Art. 19. Navy in territorial waters of Muscat. The seizure was justifiable in Muscat under a proclamation of the Sultan of Muscat. It was held that no action lay for the seizure (c). (3) So an action will lie in this country for a libel con- tained in a pamphlet in the Portuguese language and published in Brazil, even though libel be not actionable in Brazil, provided it be not justifiable in Brazil, i.e., it is enough if it be punishable in Brazil (d). (4) The English courts have no jurisdiction to entertain an action to recover damages for trespass to land situate abroad ; injuries to proprietary rights in foreign real estate being outside their jurisdiction. So the courts have recently refused to try a case of trespass to lands in South Africa (e). (O Carr v. Fracis Times % Co.. [1902] A. C. 176. (77) MacJiado v. Fontex, [1897] 2 Q. B. 231 [C. A.]. (e) See British South Africa Co. v. Campanhia de Mogambique, f 16931 A. C. 602, where the earlier cases are examined. ( 45 ) CHAPTEK V. OF PERSONAL DISABILITY TO SUE AND TO BE SUED FOR TORT. Art. 20. — Who may sue. (1) Every person may maintain an action for tort, except an alien enemy, or British subject adhering to the King's enemies (a), and a convict (sentenced to death or penal servitude) during his incarceration (b). (2) A married woman may sue alone, and any damages recovered are her separate property (c) . (3) A husband cannot sue his wife in tort (d). (4) A wife can sue her husband in tort " for the protection and security of her own separate property"; but cannot .sue him otherwise in tort(d). (5) A corporation cannot sue for a tort merely affecting its reputation, such as a libel charging the corporation with corrupt practices (e). Note.— At common law husband and wife could not sue each other at all, nor could a married woman sue anyone without joining her husband as plaintiff. Now a married («) See Be Wultl v. Braune, 1 II. & N. 178 : Netherlands South African Rail. Co. v. Fisher, 18 T. L. R. 116. (7/) forfeiture Act, 1870 (33 & 34 Vict. c. 23), ss. 8, 30. (c) Married Women's Property Act, L882 (45 & 46 Vict. c. 75). s. 1 ; Beasley v. Money, [1891] 1 Q. B. 509. (rf) Phillips v. Barnet, 1 Q. 15. D. 436 ; and 46 & 46 Vict. c. 75, s. 12. (e) Manchester Corporation v. II illiamg, [1891] 1 Q. B. 94. 46 Personal Disability to Sue and to be Sued. Art. 20. woman can sue alone anyone but her husband. She can also sue her husband for the protection and security of her separate property ; but no corresponding right is given to him. If a husband claims possession of property from his wife he must proceed by originating summons to have the question determined in a summary manner by a judge (/). Unborn It is doubtful whether an action can be brought for injuries suffered by the plaintiff whilst he was still en ventre sa mere. It has been held in Ireland that an action for negligence would not lie in such circumstances (g) ; but it has been held in England that where a man was killed by negligence his child, unborn at the time of the accident, might claim damages under Lord Campbell's Act (h). Art. 21. — Who may be sued for a Tort. (1) Every individual who commits a tort is liable to be sued, notwithstanding infancy, coverture, or unsoundness of mind ; except (i) the sovereign, (ii) foreign sovereigns, and (iii) ambassadors of foreign powers (i). But foreign sovereigns and ambassadors can waive their privilege (k). (2) A corporation which commits a tort is as liable to be sued as a private individual would be, if the thing done or omitted is within the purpose for which the corporation exists ; but otherwise the corporation is not liable, and its directors, servants, or other persons who authorise or commit the tort can alone be sued (I). (/) Married Women's Property Act, 1882, ss. 12, 17. (//) Walker v. Great Northern Hail. Co., 28 L. R. Ir. 68. (A) The George ami Richard, L. R. :■? Ad. & E. 466. (i) See Magdalena Co. v. Martin. 28 L. J. Q. B. 310. (/.•) Duke of Brunswick v. King of Hanover, ij Bea. 1. (0 Mersey Docks v. Gibbs, L. R. 1 II. L. 93. Who May be Sued for a Tort. 47 (3) No action for tort can be brought against Art - 21 - a trade union. (1) Thus, if an infant hires a horse he is liable in an Illustrations, action of negligence for immoderately riding the horse, for, Infants. as bailee, he is bound to take care of the horse, and the breach of that duty is a tort(m). But he would not be liable in an action of contract founded on the hiring (n). (2) An infant, however, cannot be sued in tort if such an action would be only an indirect way of enforcing a contract on which he is not liable. So if goods (not being neces- saries) are delivered to him under a contract of sale and he does not pay for them, he cannot be sued for converting them to his own use, for that would be only another way of recovering the price (o). Nor, if an infant induces another to contract with him by representing that he is of age, can he be sued in an action for deceit, for that would be only another way of recovering damages for breach of the contract (p). (3) There is not much authority upon the liability of Lunatics lunatics for their torts. Kelly, C.B., says lunacy is no .defence in an action for a wrong, as libel or assault (q). But Esher, M.R., suggests th^t his liability in libel depends on "whether he is sane enough to know what he is doing " (r). Lord Kenyon points out in Hay croft v. Creasy (s), the distinction between answering civiliter et criminaliter for acts injurious to others. " In the latter case the maxim applied actus non facit reum nisi mens sit rea, but it was otherwise in civil actions where the intent was immaterial if the act done were injurious to another." And no doubt a lunatic is generally liable in tort (t). (hi) Burnard v. Hcn///is, 14 C. B. (n.s.) 45, followed in Wttlley v. Holt, 35 L. T. 631. («) Jennings v. Rundall, 8 Term Rep. 335. (o) Per cur. in Manly v. Scott, 1 Sid. 129 [Ex. Ch.]. O) See Johnson v. Pie, 1 Keble, 905, 913 ; Bartlett v. Welts, 1 B. & S. 826. (q) Mbrdaunt v. Mordaunt, L. R. 2 P. & D. 102, '42. (/■) Emmens v. Pottle, 16 Q. B. D. 354, 356 [C. A.]. (*) 2 East, 92, at p. 104. (t) See also per Esher, M.R., in Hanbury v. Hanbury, 8 T. L. R. 559 [C.A.], at p. 560. 48 Personal Disability to Sue and to be Sued. Colonial governors. Corporatio Art. 21. (4) A governor of a colony is not a sovereign. He may be sued for tort in the courts of his own colony or in this country (u) . (5) With regard to corporations, of course actions of tort can of necessity only arise for acts or omissions of their directors or servants, and the difficulty in such cases is the same as arises in other cases of the responsibility of a principal for the acts of his agent, viz., the difficulty of determining whether or not the act or omission complained of was within the scope of the general authority or duty of such servant or director (x). It was long doubtful whether a corporation aggregate could be sued in an action of malicious prosecution. It was thought that a corporation, having no mind, could not act maliciously (y). But it is now settled that a corpora- tion may be made liable for malicious prosecution if in instituting the proceedings it is actuated by motives which in an individual would be malice (z). And on the some principle, a corporation may be liable for publishing a libel on a privileged occasion. Though a corporation cannot itself be guilty of actual malice, it is liable if its agent in publishing the libel is actuated by malice («) Trade unions. (6) Trade unions registered under the Trade Union Acts, 1871 and 1876, are associations of masters or of workmen empowered to hold property, and with limited powers of suing and being sued in contract. It was held in the famous Taff Vale Case (b), that there was nothing in these Acts to prevent an action for tort being brought against a trade union, and after that decision (?/) Fahrigas v. Mostyn, 1 Cowp. 161 ; Phillips v. Eyre, L. R. 6 Q. B. 1 ; Musgrave v. Pulido, "> App. Cas. 102. O) See Chapter VI. (y) See Lord Bramwell's opinion in Abrath v. North Eastern Rail. Co., 11 App. Cas. 247. (r) Con/ford v. Carlton Banlt, [1899] 1 Q. B. 392, following Edwards \. Midland Hail. Co.. 6 Q.B. D. 287. (rt) Citizens' Life Assurance Co. v. Brown, [1904] A. C. 423. (V) Taff Vale Hail. Co. v. Amalgamated Socitty of Railway Servants [1901] A. C. 426. Joint Tort-feasors. 49 many such actions were brought until the Trade Disputes Art. 21. Act, 1906 (c), was passed. That Act provides (inter alia) that an action shall not be entertained by any court (a) against a trade union, or (b) against any members or officials of a trade union (on behalf of themselves and all other members of the union) in respect of any tortious act alleged to have been committed by or on behalf of the union. This gives trade unions complete immunity from actions of tort. Art. 22. — Joint Tort-feasors. (1) Persons who jointly commit a tort may be sued jointly or severally; and if jointly, the damages may be levied from both or either (d). (2) A judgment against one of several joint tort-feasors is a bar to an action against the others, even although the judgment remains unsatisfied (e). (3) A release of one of several joint tort-feasors is a bar to an action against the others (/) ; but a mere covenant not to sue one of them is not (g). (4) If damages are levied upon one only, then (a) where the tort consists of an act or omis- sion, the illegality of which he must be pre- sumed to have known, he will have no right to call upon the others to contribute (h). But (b) where the tort consists of an act not obviously unlawful in itself (e.g., trover by a person from whom the same goods are claimed by adverse O) 6 Edw. 7, c. 47. (d~) Hume v. Oldacre, 1 Stark. 351 ; Blair and Sumner v, Deakin, Eden and Thioaites v. Deakin, 57 L. T. 522. (e) Brhismead v. Harrison, L. It. 7 C. P. 547 [Ex. Ch.]. (/) Cocke v. Jennor, Hob. 66. (>/) Buck v. Mayeu, [1892] 2 Q. B. 511 [C. A.]. (A) Merryweatherv. Nixan, 8 Term Rep. 186. 50 Peksonal Disability to Sue and to be Sued. Art. 22. claimants), he may claim contribution or indem- nity against the party really responsible for the tort ; and this right is not confined to cases where he is the agent or servant of the other tort-feasor (i). Note. — When two or more persons join in committing a tort, each is responsible for the whole of the injury sustained by their common act. To constitute two persons joint tort- feasors, they must act together in furtherance of a common design, or one must aid, counsel or direct the other. If two persons acting quite independently contribute by their separate acts to the same damage, they are not joint tort- feasors. So, too, persons independently repeating the same slander, or independently making a noise or obstruction which is a nuisance, are not joint tort-feasors (k). One cause of Against two or more joint tort-feasors there is only one action. cause of action, and if that cause of action is released or merged in a judgment, no second action can be brought. So where A. and B. jointly converted C.'s piano to their own use, and judgment was recovered in an action against A. only, no further action could be brought against B., although the judgment against A. was unsatisfied. A. or B. might have been sued jointly in the first action, and then C. might have enforced the judgment against either of them (I). Partners. When a partner in a firm acting in the ordinary course of the business of the firm, or with the authority of his co- partners, commits a tort in regard to any third person, all the partners are jointly liable. Each member of the firm is also severally liable (w). (i) Adameon v. Jan-is. 4 Bing. 66, 72 ; Belt* v. Qibbins, 2 A. & E. 57. (/<) See Sadler v. Great Western Hail. Co., [1896] A. C. 450. (0 Brinsmead v. Harrison, L. K. 7 C. P. 547 [Ex. Ch.]. (mi) Partnership Act, 1890 (53 & 54 Vict. c. 39), BS. 10, 12. CANADIAN NOTES. 50tt Canadian Notes to Chapter V. of Part I. Parties Necessary to Actions for Tort. In any action of tort there can be only one defendant unless defendants are sued as joint tort feasors. McEvoy v. Wright (1904), 3 O.W.R. 428. Where two defendants were joined in an action for slander in which a like amount of damage was claimed from each defendant, an order was made requiring plaintiff within two weeks to discontinue the action against one or the other of the defendants, and to make all necessary amend- ments. Ibid. There cannot be a joint action for oral slander against sev- eral defendants, though uttered at the same time. Carrier v. Garrant, 23 U.C.C.P. 273. They can only be joined in an action for conspiracy to defame ; Devaney v. World Newspaper Co. (1910), 1 O.W.N. 454, 455, affirmed, 1 O.W.N. 472; or in an action of libel. Brown v. Hirely, 5 U.C.R. (old series) 734. Apart from any legislation a married woman may be liable for torts committed by her unless she has been acting under the coercion of her husband. Shaw v. McCreary, 19 O.R. 39 ; Stone v. Knapp, 29 U.C.C.P. 609 ; Wagner v. Jefferson, 37 U.C.R. 551 ; Consolidated Bank v. Henderson, 29 U.C.C.P. 549. A lunatic is civilly liable in damages to persons injured by his acts, unless utterly blameless. Where a lunatic defendant had set fire to a bam, and the evidence showed that, while not responsible to the extent of an ordinary man, he was not utterly unconscious that he was doing wrong, it was held that he was liable for the damage done. Stanley v. Hayes, 8 O.L.R. 81. An action will lie at the suit of an incorporated trading com- pany to recover damages for a libel calculated to injure their reputation in the way of their business. (South Hetton Coal Co. v. North-Eastern News Association (1894), 1 Q.B. 133, fol- lowed. Journal Printing Co. v. MacLean, 25 O.R. 509, approved). Journal Printing Co. v. MacLean, 23 A.R. (Ont.) 324. An action for slander will not ordinarily lie against a cor- poration. Marshall v. Central Ontario Ry. Co., 28 O.R. 241. But 50 a — l.t. 1. 506 CANADIAN NOTES. semble, per Boyd, C, that an incorporated company may be liable if slander is spoken by its servants or agents in direct obedience to its orders, and : — Held, that, at all events, a state- ment of claim setting up slander should not be struck out sum- marily, but should be adjudicated on. Leave to the defendants to have the question of law first determined. Roger v. Noxon Company, 19 Ont. Pr. 327; Odger's Libel and Slander, 5th ed. (Canadian Notes) 596d. A corporation may be made liable for malicious prosecution if in instituting the proceedings it is actuated by motives which in an individual would be malice. Freeborn v. The Singer Sewing Machine Co., 2 Man. R. 253 ; Wilson v. The City of Winnipeg, 4 Man. R. 193 ; Miller v. Manitoba Lumber and Fuel Co., 6 Man. R. 487. For injuries committed by an infant in the course of his employment as a servant by his father, the latter is responsible, as in other cases of master and servant. But the rule of com- mon law is that a parent is not, because of his family relation- ship, legally responsible to answer in damage for the torts of his infant child. Upon this rule exceptions are engrafted, that where the father has knowledge of the wrong-doing and consents to it, where he directs it, where he sanctions it, where he ratifies it, or participates in the fruits of it, he becomes in effect a party to it, and as such is liable to the injured person. File v. Unger, 27 A.R. 468, 472. While a parent may be liable for an injury which is directly caused by the child, where the parent's negligence has made it possible for the child to cause the injury complained of and probable that the child would do so, this liability is based upon the rules of negligence rather than the relation of parent and child. Thibodeau v. Cheff (1911), 24 O.L.R. 214. The medical health officer of a municipal corporation in Ontario is not a servant of the corporation so as to make them liable for his acts done in pursuance of his statutory duty. For- sythe v. Canniff and Corporation of Toronto, 20 O.R. 478. A constable in charge of a patrol waggon is not a servant of a board of commissioners of police constituted under the Ontario Municipal Act, so as to make them liable for his negligence in CANADIAN NOTES. 50c the performance of his duties. Winterbottom v. Board of Com- missioners of Police of the City of London (1901), 1 O.L.R. 519. But though municipal corporations are not hound by law to establish and manage a fire department, yet if they do so they are liable for injuries caused by the negligence of the servants employed by them therein while in the performance of their duties. Hesketh v. Toronto, 25 O.A.R 419. A municipal corporation authorized by the legislature to estab- lish and manage a system of waterworks, but not bound by law to do so, will, if it does so, be liable for injuries caused by the negligence of the servants employed by it therein while in the performance of their duties. (Hesketh v. Toronto (1898), 25 A.R. 419, and Garbutt v. Winnipeg (1909), 18 M.R. 345, fol- lowed.) It is actionable negligence if an employee of the water- works department of a city, having opened the trap door in the floor of a kitchen for the purpose of reading the water mefer in the basement, leaves the trap door open on going away, whereby an occupant of the house is injured by falling through the open trap door. Shaw v. City of Winnipeg, 19 Man. R. 234. In 1903 the defendants, a town corporation, acquired an elec- tric light plant then supplying the town and vicinity. In 1904 the defendants passed a by-law constituting a 1 Board of Commis- sioners under the Municipal Light and Heat Act, and the Muni- cipal Waterworks Act, R.S.O. 1897, cc. 234, 235 ; and the Board in and after 1905, took charge of the electrical plant, etc., of ^the defendants. It was held that the liability of a body created by statute must be determined upon a true interpretation of that statute ; and, upon the statutes referred to, the position of the defendants was that of principal, and that of the Board of agent; and the defendants were liable for damages occasioned by the act of the Board. (Mersey Docks Trustees v. Gibbs (1866), L.R. 1 H.L. 93, followed.) Held, also, that if it were beyond the powers of the Board to get their supply of electricity from a point eight miles distant, it was not open to the defend- ants, who knew all about it and adopted it, to set up that they were not liable for the acts of the Board ; and, even if this man- ner of procuring power were ultra vires the defendants, they could not set this up as an answer to a claim based upon the oOd CANADIAN NOTES. negligence of their servants, in a business carried on by them for the benefit and with the knowledge of the corporation. Young v. Town of Gravenhurst, 22 O.L.R. 291, affirmed (1911) 24 O.L.R. 467. Joint Tort-feasors. In joint trespasses the question is not which trespasser of sev- eral has acted best or worst, which is most or which is least guilty, but what is the damage occasioned by the joint trespass to the plaintiff. The ; general rule is that each defendant is liable with his fellow-trespassers for that sum. Grantham v. Severs, 25 U.C.R. 468. But when there appears to be a different course | of conduct pursued by each defendant, and their motives seem different, an assessment of damages might do great injus- tice to one and be perfectly right as to the other. Clissold v. Machell and Moseley, 26 U.C.R. 423. In trespass and trover against five defendants, for taking and converting a steam boiler, it appeared that one defendant P. had nothing to do with the original taking, but that it had been placed in his yard by the others, or by some of them, not acting in concert with him, and that he had afterwards refused to give it up to the plaintiff. At the trial the plaintiff's counsel declined to elect, but went to the jury against all the defendants, claim- ing exemplary damages, and a general verdict was rendered. A new trial was ordered without costs, the court refusing to allow the verdict to stand against P. Menton v. Lee, 30 U.C.R. 281. Since the fusion of common law and equity the damages assessed against a number of joint tort-feasors need not always be the same for all, but, if one or them is responsible for only a part of the total wrong done and the liability, though joint as to all at the time of the commencement of the action, arose at different dates, there may, under Rules 219 and 220 of the King's Bench Act, R.S.M. 1902, c. 40, be a verdict against ;the one for that part and against the rest for the total amount of damage committed. (O'Keefe v. Walsh (1903), 2 I.R. 681, and Copeland- Cha.tterson Co. v. Business Systems, Ltd. (1906), 11 O.L.R. 292, followed.) Stewart v. Teskee, 20 Man. R. 167. The defendant Teskee tortiously cut down and carried away a large number of CANADIAN NOTES. 50g trees from the plaintiff's land with the assistance of his co-de- fendants hired by him. The work occupied eight days, but the defendant K. was only engaged for two days upon it. It was held that K. was not liable for anything beyond the amount of the damage done during the two days. The plaintiff had failed to show what that amount was; but, as K. had joined with the others in paying $91 into Court to answer the plaintiff's claim, thus admitting his liability for that amount, the verdict of $1,000 against all in the trial Court was changed to one for $91 against K. and for the balance, $909, against the other defendants. Stewart v. Teskee, 20 Man. R. 167 (C.A.). Cameron, J. A., said in Stewart v. Teskee: "To give the rules in question the liberal construction adopted in O'Keefe v. "Walsh, [1903] 2 Irish R. 681, is surely in accordance with common sense and the spirit of the Judicature Act and our King's Bench Act." "The object of the Judicature Act," said Gibson, J., at p. 714, "was to stop multiplicity of actions to prevent failure of justice from a mistake of forum, to extend equitable relief, and to introduce a homogeneous procedure applicable to all courts without distinction. In this case we have disclosed in the evi- dence many separate technical causes of action, arising against each of the defendants as damages accrued from day to day with each distinct entry and even, it may be, with each separate fell- ing of a tree, such causes of action being interlaced and connected with each other, and springing out of the controlling action of iWilliam Teskee, who bore the relation of employer to each of the other defendants. The case, therefore, it seems to me, clearly comes within the rules as construed by the judgment in O'Keefe v. Walsh, [1903] 2 Irish R. 681, and it was open to a jury and to a judge sitting as a jury to sever and distribute the damages according to the respective liabilities of the defendants." In an action for damages against the corporation of a city for allowing planks and lumber to remain on one of its streets, which had been negligently piled and wrongfully left there by the other defendants, and which fell on the plaintiff and injured him ; it was held that the defendants were not joint tort-feasors and that Ont. Con. Rule 186 was not so amended by 3 Edw. VII. c. 19, s. 609 (O.), as to authorize the action as constituted, and plain- 50a— l.t. 2. 50/ CANADIAN NOTES. tiff was ordered to elect against which defendant he would pro- ceed. (Hinds v. Corporation of the Town of Barrie (1903), 6 O.L.R. 356; Rice v. Town of Whitby (1898), 25 A.R. 191, and Chandler and Massey, Limited v. Grand Trunk Railway Co, (1903), 5 O.L.R. 589, followed.) Baines v. City of Woodstock, 10 O.L.R. 691 (M.C.). r A proprietor or principal contractor undertaking works in the circumstances inherently dangerous cannot delegate the duty of providing against such danger so as to escape personal responsi- bility if that duty be neglected. Failure to discharge such duty makes the proprietor and his contractor, or the contractor and his sub-contractor, as the case may be, equally liable as joint tort-feasors for resultant injury. A judgment for damages sus- tained in consequence of any such injury against one of such joint tort-feasors is a bar to a subsequent action therefor against another. (19 Man. R. 641, affirmed.) Longmore v. Mc Arthur Co., 43 Can. S.C.R. 640. A theatrical company agreed to present a certain play at the defendants' theatre on a date specified, and the defendants agreed to furnish the theatre and all the properties contained in the theatre for the period of the engagement, and also to "fur- nish electric current, for the company 's calciums. ' ' It was agreed that there should be no other entertainment in the theatre dur- ing the engagement, and that the gross receipts should be shared so that 70 per cent, should go to the playing company. The plaintiff's son was employed by the company to operate, and did operate, a calcium light belonging to them ; he was under the charge and direction of their electrician; the company's servants had entire and sole control of the stage and its surroundings, including the place where the lamp was operated. The plain- tiffs' son was killed by the action of electricity Avhile operating the lamp : — Held, that the effect of sharing the gross receipts was but another mode of paying rent for the premises, and did not indicate that any p;irtnership existed; and the defendants, hav- ing no right of control, were not jointly liable with, the company, nor in any way liable for the death of the plaintiffs' son. Bradd v. Whitney, 14 O.L.R. 415. ( 51 ) CHAPTER VI. LIABILITY FOR TORTS COMMITTED BY OTHERS. SECTION I.— LIABILITY OF HUSBAND FOB TOBTS OF WIFE. Aet. 23. — Wife's ante-nuptial and post-nuptial Torts. (1) A married woman may be sued alone in respect of her ante-nuptial torts. Her hus- band is also liable to the extent of the property which he received with her ; and he may be sued either jointly with her or alone (a). (2) A married woman may also be sued alone in respect of her post-nuptial torts (&), but her husband is also liable, and may be joined with her as defendant (c). (3) The liability of a husband for his wife's torts comes to an end by the death of the wife, or by divorce or judicial separation. Before the Married Women's Property Act, 1882, a wife could not be sued alone for a tort. Her husband was necessarily joined as defendant in an action of tort brought against her, as all her property vested in hirn during coverture, and there was therefore no means of satisfying a judgment obtained against her alone. Since the passing O) Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), as. 13 —15. (7>) Ibid., s. 1. (V) Seroka v. Kattenburg, 17 Q. B.D. 177 ; EarU v. Kingecote, [1900] 1 Oh. 203. E 2 52 Liability for Torts Committed by Others. Art. 23. of the Married Women's Property Act, a married woman is capable of holding separate property, and judgment may be had against her to the extent of her separate property, and to that extent the Act provides that she is liable for, and may be sued alone for, her torts as if she were a feme sole. This enactment, however, does not affect the common law liability of a husband for his wife's torts (d) ; and, con- sequently, a plaintiff can elect whether he will sue the wife alone, or join her husband as co-defendant with her. The present state of the law is clearly defined by the judgment of the Court of Appeal in Beck v. Pierce (e). If the wife dies or the marriage is dissolved (/), from that moment the husband's liability ceases, even for torts com- mitted during coverture, and even though an action is pending. Unless judgment has been actually given, his liability is at an end from the moment of her death or the decree absolute. Separation. The same rule applies where the parties are judicially separated (g). The decree puts an end from the moment when it is pronounced to the husband's liability. But where the parties are living apart under a voluntary separa- tion, a husband's liability for his wife's torts continues (A). Death or divorce. SECTION II.— LIABILITY OF PAETNEBS FOR EACH OTHEB'S TORTS. The foundation of the liability of partners for each other's torts is that each partner is the agent of his copartners in relation to the conduct of the partnership business. The law has now been codified by ss. 10 and 11 of the Partner- ship Act, 1890 : (! - also owner of the horse and harness, it was held by Eussell, C.J., that in all the circumstances of the case the owner of the carriage had control of the driver as to the manner of driving, and the driver was his servant. The owner of the horse and harness would be the person to give directions as to the way in which the horse should be harnessed and driven, and so had control of the driver as to the way in which he should do his work, and accordingly the owner of the carriage was liable for damage done by the negligence of the driver in driving (q). (2) But where two ladies, owners of a carriage, hired horses from a livery stable, and with the horses a driver, whom they put into their livery, but to whom they did not pay wages, it was held that the driver was not their servant, and they were not liable for his negligence. The ladies would no doubt give directions as to the places to which they should be driven, but not as to the manner in which the horses should be driven (/•). (3) It is held that upon the construction of the Metro- Cabdrivers. politan Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86), so far as the public is concerned, the proprietor of a hackney carriage is responsible for the acts of the driver whilst plying for hire, as if the relationship of master and servant existed between them, although, in fact, no such relation- ship exists, the relationship apart from statute being that ■of bailor and bailee, and not that of master and servant (s). Oy) Jones v. Scullard, [1898] 2 Q. B. 5Go. (r") Quarman v. Burnett, <5 M. >.v \V. 499. (.v) Venablesy. Smith, 2 (^. B. 1). 279 ; ami King v. London Tmpro-ceA ■Cab Co., 23 Q,. B. D. 281 [C. A.]. 58 Liability for Torts Committed by Others. Art. 27. Servant for particular purpose The tort must be committed in the course of the em- ployment. Course of employment. Wilful torte But if the driver is in fact the servant of some person other than the proprietor, that person may also be liable as the driver's master (t). (4) In RourJce v. White Moss Colliery Co. (u), the defen- dants were sinking a shaft in their colliery and agreed with one Whittle to do the sinking at so much per yard. The defendants agreed to supply an engine and engineer at the mouth of the shaft. The engineer was employed and paid by the defendants, and was their general servant, but was at the time under the orders and control of Whittle, and it was held that he was, for the particular purpose, the servant not of the defendants but of Whittle, and consequently the defendants were not liable for his negligence. (5) Where a master entrusted his servant with his carriage for a given purpose, and the servant drove it for another purpose of his own in a different direction, and in doing so drove over the plaintiff, the master was held not to be responsible, on the ground that the wrong was not com- mitted in the course of his employment (x). But if the servant when going on his master's business had merely taken a somewhat longer road, such a deviation would not have been considered as taking him out of his master's employment (y). (6) And where a servant does a kind of work for which he is not engaged, he is not acting within the course of his employment so as to make the master liable for his negligence. Thus, when an omnibus conductor drove the omnibus, and whilst so doing negligently ran into the plaintiff, it was held that, in the absence of evidence that the conductor was authorised to drive the omnibus, the defendants were entitled to judgment (z). (7) In Barwick v. English Joint Stock Bank (a), the defen- dants were held liable for the fraudulent statements of their (0 Keen v. Henry, [1894] 1 Q. B. 292. (u) 2 C. P. D. 205 [C. A.], and see Donovan v. Laing, Wharton, and Down Const ruction Syndicate, [1893] 1 Q. B. 029 [C. A.]. (x) Storey v. Ashton, L. R. 4 Q. B. 47(5. (30 Mitchell v. Crassweller, 22 L. J. C. P. 100. CO Beard v. London General Omnibus Co., [1900] 2 Q. B. 530 [C. A.]. («) L. Ii. 2 Ex. 259 [Ex. Ch.J. Liability for Torts of Servants. 59 manager made for the benefit of the defendants, and in the Art. 27. course of his business, the statements being made in answer to inquiries by the plaintiff and being to the effect that a customer of the bank was a person of financial stability. These statements were untrue to the knowledge of the manager, and were made with intent to deceive — but not for the benefit of the manager. (8) But where a bank manager fraudulently told a customer that certain transfers of mortgage debentures were valid, though he knew they were forged, the bank was held not liable for the fraud of the servant as he had committed it not for the benefit of the bank, but for his own benefit (b). (9) Where an omnibus driver, contrary to the express Tort ex- instructions of his employers, so drove as to obstruct a {^bidden rival omnibus with a view to increasing his takings, it was held that his employers were liable, as he was acting at the time in the course of his employment, and, as he thought, for their benefit (c). But where a driver to gratify his own spite struck the horses of a rival with his whip, his employers were held not liable (d). In the one case the driver was acting for his employers' benefit ; in the other solely for his own. (10) In Poulton v. London and South Western Bail. Co. (e), Wrongful a station master having demanded payment for the carriage arrest by of a horse conveyed by the defendants, arrested the plaintiff and detained him in custody until it was ascertained by telegraph that all was right. The railway company had no power whatever to arrest a person for non-payment for carriage of a horse, and therefore the station master, in arresting the plaintiff, did an act that was wholly illegal, not in 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 (&) British Mutual Banking Co. v. Charnwood Forest Rail. Co., IS Q. B. D. 714 [C. A.], (c) Limpus v. London General Omnibus Co., 1 II. & C. 52(1. (rf) Croft v. Alison, 1 B. i: A. 590. O) L. 11. 2 Q. B. 534. 60 Liability foe Torts Committed by Others. Art. 27. master; and "Mellor, J., said: " If the station master had made a mistake in committing an act which he was autho- rised to do, I think in that case the company would be liable, because it would be supposed to be done by their authority. "Where the station master acts in a manner in which the company themselves would not he authorised to act, and under a mistake or misapprehension 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." (11) In an earlier case in which a station master and a policeman employed by a railway company wrongfully arrested a man for not paying his fare, the company was held liable, as the company had power to arrest a passenger for travelling without paying his fare, and must be taken to have authorised the officials to take into custody persons whom they believed to be committing that offence. The officials made a mistake in the particular case, but it was " a mistake made within the scope of their authority " (/). Assaults by (12) So, again, in Bayley v. Manchester, Sheffield and Lincolnshire Bail. Co. (g), 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 under the erroneous impres- sion that the plaintiff was in the wrong carriage. The defendants' byelaws did not expressly authorise the com- pany's servants to remove any person being in a wrong carriage, or travelling therein without having first paid his fare and taken a ticket, and they even contained certain provisions which implied that the passengers should be treated with consideration ; but, nevertheless, the court considered that the act of the porter in pulling the plaintiff out of the carriage was an act done in the course of his employment as the defendants' servant. In that case Willes, J., says : "A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine according to the circumstances that arise, when an act of that class is to be (/) Goff v. Great Northern Rail. Co., 3 E. & E. 672. (;,) L. K. 7 C. T. 415. servants. Liability for Torts of Servants. (51 done and trusts him for the manner in which it is done ; Art. 27. and consequently he is held answerable for the wrong of the person so entrusted either in the manner of doing such an act or in doing such an act under circumstances in which it ought not to have been done ; provided that what was done was done, not from any caprice of the servant, but in the course of the employment." (13) The defendants employed a manager to manage a Criminal acts, branch of their business, which was the sale of furniture on the hire-purchase system. The manager sold a piece of furniture to a person living in the plaintiff's house, and on one of the instalments being in arrear he went to the plaintiff's house and removed the furniture. Whilst so doing he assaulted the plaintiff. The jury found that the manager committed the assault in the course of his employ- ment, and it was held that the defendants were liable. The manager was employed to get back the furniture and committed the assault for the purpose of furthering that object and not for private purposes of his own, and the defendants were held liable for the wrongful act of their servant although the assault was a criminal offence (h). (14) So, too, a corporation is liable for the libels or slanders published by its servants and uttered within the scope of their employment (i), but not for those outside the scope of their employment (k). Art. 28. — Unauthorised Delegation by Servant. A master is not liable for the tortious acts of persons to whom his servant has, without authority, delegated his duties. A servant may have express authority, and in some cases may have implied authority, to delegate his duties to (A) Dyer v. Munday, [1895] 1 Q. 15. H2 [C. A.]. (0 Citizens' Life Assurance Co. v. Brown, [1904] A. C. 423 [P. C.]. (&) Glasgow Corporation v. Larimer, [191 1 ] A. C. 209. 62 Liability for Torts Committed by Others. Art - 28 - another, but if without such authority he dele- gates his duties to another, that other does not become the agent of the master. Illustrations. (1) Thus, where the driver and conductor of an omnibus authorised a bystander to drive the omnibus (the driver having been ordered to discontinue driving by a policeman who thought he was drunk), and the bystander, whilst driving, negligently injured the plaintiff, it was held that the defendants were not liable as the bystander was not their agent (I). (2) But where the driver of a cart negligently left the cart in custody of a lad whose duty it was to go with the cart to deliver parcels, but had been forbidden to drive, and the lad drove the cart so that it collided with the plaintiff's carriage, the employer of the driver was held liable for the negligence of the driver in leaving the cart in custody of the lad. But the employer would not have been liable for the negligence of the lad, as he was not acting within the scope of his employment, and the driver had no authority to delegate the driving to him (in). Art. 29. — Servants of the Crown. The heads of Government departments and superior officers are not liable for the torts of their subordinates committed in carrying out the business of the Crown unless they have them- selves ordered or directed the commission of the tort {n). Explanation. The head of a Government department is not the master of the Government servants belonging to the department ; nor are soldiers or naval seamen the servants of the officers (7) QwMiam v. Twist, [1895] 2 Q. B. 81 [C. A.]. O) Engelhart v. Farrant fy Co., [1897] 1 Q. B. 240 [C. A.]. (//) Bainbridge v. Postmaster- General, [1906] 1 K. B. 178 [C. A.]. Liability for Negligence. 63 who command them. All are servants of the Crown, Art. 29. serving under a common master. Though the soldier is absolutely subject to the orders of his officer he is no more his servant in law than is a stable boy the servant of the coachman, or a railway porter the servant of the station- master or the general manager of a railway company (o). SECTION V.— LIABILITY FOE NEGLIGENCE OF INDEPENDENT CONTEACTOES. Art. 30. — The General Bide. (1) A principal is not liable for the collateral negligence of an independent contractor, that is, for a negligent act or omission which arises incidentally in the course of the performance of the work. (2) But to this rule there are three excep- tions : (a) Where an independent contractor is em- ployed to do an act unlawful in itself the principal is liable for the direct consequences of such act, and is also liable for the consequences of the agent's negligence in the course of doing the act (p). (b) If the principal is under an obligation by contract or statute to do a particular thing, and he employs an independent contractor to do it, he is liable if the contractor neglects to do the thing, or does it improperly. He cannot 00 Stone v. Qartwright, 6 Term Rep. 411. O) Ellis v. Sheffield Gas Consumers Co., 2 E. & B. 767, p. 66, post. 64 Liability for Torts Committed by Others. Art. 30 get rid of his duty by employing an agent (q). (c) Where the thing which the independent contractor is employed to do will be a nuisance, or is likely in the ordinary course of events to cause damage, unless proper precautions are taken, the principal is liable for the neglect of the contractor to take those precau- tions (r). Comment on It will be noticed that the liability of one who employs- above rule. another to do work is not so extensive where the person employed is an independent contractor as it is where that- other is a servant. A master has control of the servant as to the way he does his work, and it is his duty to see that the work is so done as not to cause damage to others — -so he is liable for the collateral negligence of the servant. When an independent contractor is employed, the principal is only liable for acts which he has expressly or impliedly authorised. But a person who is under a duty to do something cannot evade that duty by deputing its per- formance to another. So if a person is under an obligation to do something and he employs an agent to do it, he is- responsible for any neglect of the agent to properly perform that duty. So, too, if a person chooses to do something which he does at his peril, or something which will be dangerous if not properly done, he must see that the person he employs to do the work does it properly. Having authorised the work, he cannot escape responsibility for its being carried out in such a manner as not to be dangerous. Pickard v. Iu the leading case (s) a railway company had let the Smith, refreshment rooms and a coal cellar to the defendant, Smith. The opening for shooting the coals into the cellar (7) Hole v. Sittingboume and Sheerness Rail. Co., 6 H. & N. 488. (/•) Hughes v. Perrivcil, 8 App. Cas. 44:!. 0) Pickard v. Smith, 10 C. B. (n.s.) 470. Liability for Negligence. 65 was on the arrival platform. Whilst the servants of a Art. 30. coal merchant (an independent contractor) were shooting coals into the cellar for Smith, the plaintiff, a passenger on the railway, in passing out of the station, without any fault on his part, fell into the cellar opening which was in- sufficiently guarded owing to the negligence of the servants of the coal merchant. The court held that Smith was liable, although the coal merchant was an independent contractor and his servants were not Smith's servants. Williams, J., in delivering the judgment of the court, said: " Unquestionably no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employ- ment. Consequently if an independent contractor is employed to do a lawful act and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable. . . . That rule is, however, inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do ; nor by a parity of reasoning to cases in which the contractor is entrusted with the performance of a duty incumbent upon his employer and neglects its fulfilment whereby an injury is occasioned. Now, in the present case, the defendant employed the coal merchant to open the trap in order to put in the coals, and he trusted him to guard it whilst open and to close it when the coals were all put in. The act of opening it was the act of the employer though done through the agency of the coal merchant ; and the defendant having thereby caused danger was bound to take reasonable means to prevent mischief. The performance of this duty he omitted, and the fact of his having entrusted it to a person who also neglected it furnishes no excuse, either in good sense or law." (1) A railway company was empowered by Act of Parlia- Illustrations, ment to construct a railway bridge over a highway. The Independent company employed a contractor to do the work. A servant contrac tors. of the contractor negligently caused the death of a person passing underneath on the highway by allowing a stone to fall on him. The contractor would no doubt have been 66 Liability for Torts Committed by Others. Art. 30. liable for the negligence of his servant, but in an action brought by the administratrix of the deceased against the railway company tbe defendants were held not liable for the negligence of the workman, being that of an agent who was not their servant, and merely collateral to the work which he was employed to do (t). Illustrations (2) A company, not authorised to interfere with the of exceptions. gtreets of Sheffield, directed their 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 held liable, as the interference w T ith the streets was in itself an unlawful act (u). (3) So where the defendants were authorised, by an Act of Parliament, to construct an opening bridge over a navigable river, a duty was cast upon them to construct it properly and efficiently ; and the plaintiff having suffered loss through a defect in the construction and working of the bridge, it was held that the defendants were liable under exception (b), and could not excuse themselves by throwing the blame on their contractors (.<•). (4) Plaintiff and defendant were owners of two adjoining houses, plaintiff being entitled to have his house supported by defendant's soil. Defendant employed a contractor to pull down his house, excavate the foundations, and rebuild the house. The contractor undertook the risk of supporting the plaintiff's house as far as might be necessary during the work, and to make good any damage and satisfy any claims arising therefrom. Plaintiff's house was injured in the progress of the work, owing to the means taken by the con- tractor to support it being insufficient : — Held, on the principle above laid down (exception (c) ), that the defendant was liable (y). (5) A district council employed a contractor to make up a highway, which was used by the public but was not (t) Beedie v. London and North Western Rail. Co., Hobbit v. Same, 4 Ex. 244. (m) Ellis v. Sheffield Gas Consumers Co., 23 L. J. Q. B. 42. (#) See Hole v. Sittingbourne and Sheerness Rail. Co., 6 H. & N. 488. (t/) Bower v. Peate, 1 Q. B. D. 321, approved in Dalton v. Angus, 6 App. Cas. 740, and Hughes v. Percival, 8 App. Cas. 443. Liability for Negligence. 07 repairable by the inhabitants at large. In carrying out the Art. 30. work the contractor negligently left on the road a heap of soil unlighted and unprotected. The plaintiff, walking along the road after dark, fell over the heap and was injured. In an action against the district council and the ■conti actor to recover damages, it was held that, as from the nature of the work danger was likely to arise to the public using the road, unless precautions were taken, the negligence of the contractor was not collateral to his em- ployment, and the district council (as well as the contractor) were liable (z) . (6) Where the defendant maintained a lamp hanging over a highway for his own purposes, it was his duty to maintain it so as not to be dangerous to the public, and when he employed a contractor to repair it, but the contractor did his work badly, the defendant was liable for injury caused thereby to a person passing on the highway (a). (7) Where a contractor was employed to clear and burn the bush on land belonging to the defendants, and he neg- ligently lit a fire on the land and permitted it to spread on to the plaintiff's land, the defendants were held liable, even though the contractor in lighting the fire had disregarded the express stipulations as to the time at which the fire should be lit, on the ground that, having authorised the lighting of the fires, they were bound not only to stipulate that precautions should be taken, but to see that they were taken (b). (:~) Polity v. Wimbledon Urban Council, [1899] 2 Q. B. 72 [C. A.] ; and see HolUday v. National Telephone Co., [1899] 2 Q. B. 392 [C. A.]. (a) Tarry v. Ashton, 1 Q. B. D. 314. (V) BlaeTt v. Christchureh Finance Co., [1894] A. C. 4S [F. C.]. v 2 CANADIAN NOTES. 68. & Ad. 727; Beckham v. Drake, 2 H. L. Cas. 57'J ; Brewer v. Dew, 11 M. & W. 625 ; Uodqsoii v. Sidney, L. K. 1 Ex. 313 ; Ex parte Vine, Be Wilton, 8 Ch. 1). 364 [C. A.]. Common Law. 71 (2) A right of action for tort against one who Art 32 - becomes bankrupt, is not destroyed by the bank- ruptcy, nor can the plaintiff prove in the bank- ruptcy for compensation (/). (1) Thus a bankrupt may, even during the continuance Illustrations, of the bankruptcy, sue another for libel or assault, or for seduction of his servant (k) ; and may, it is conceived, keep any damages which he may recover for his own use and benefit (I). (2) So in an action for trespass and seizure of goods in which the plaintiff alleged damage to the goods, damage to the premises, and personal annoyance to himself and his family, and it was admitted that no substantial damage was done to the premises or the goods, it was held that the right of action did not pass to the trustee in bank- ruptcy (771). (3) But where a tort in respect of property causes actual damage, so as to inflict loss on the bankrupt's creditors, the right of action passes to the trustee, and the bankrupt loses the right of suing for the abstract tort to his right (n), unless there were two distinct causes of action («). SECTION II.— STATUTOEY LIABILITY FOE CAUSING DEATH. Art. 33. — Actions by Personal Representatives of Persons hilled by Tort. (1) Whenever the death of a person is caused Lord by a wrongful act, neglect or default of another £X P which would (if death had not ensued) have (0 Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 30 (2), and s. 37 ; Watson v. Holliday, 20 Ch. D. 780 ; 52 L. J. Ch. 543 ; Ex parte Stone, Re Giles, 37 W. K. 767. (It) Beckham v. Drake, p. 70, ante. (/) Ex parte Vine, p. 70, ante. (m) Rose v. Buckett, [1901] 2 K. B. 449. (n) Brewer y. Dew, p. 70, ante; and Hodgson v. Sidney, p. 70, ante. 72 Effect of Death, etc. of Either Party. Art. 33. entitled the party injured to maintain an action in respect thereof, then the wrongdoer is liable to an action, even although the circumstances amount in law to a felony (o). (2) Every such action must be for the benefit of the wife, husband, parent and child of the deceased, and must be brought by and in the name of the executor or administrator of the deceased person (p). (3) Where there is no personal representative, or no action is brought by him within six months, the action may be brought in the name or names of all or any of the persons for whose benefit the personal representative could have sued (q). (4) In every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought. The amount so recovered, after deducting the costs not recovered from the defendant, is divided amongst the before-mentioned parties (or such of them as may be in existence) in such shares as the jury by their verdict may direct (;•). (5) Not more than one action lies for the same cause of complaint, and every such action must be commenced within one year after the death of the deceased (s). Explanation. At common law no action lay against any person who by his wrongful act, neglect, or default caused the immediate (o) Fatal Accidents Act, 1846 (usually called Lord Campbell's Act) (9 & 10 Vict. c. 93), s. 1. (;>) Ibid., s. 2. (/l) 27 & 28 Vict. c. 95, s. 1 j and see Holleran v. Bagnell, 4 L. R. Ir. 740. (>•) 9 & 10 Vict. c. 93, s. 2. 0) 9 & 10 Vict. c. It:!, s. 4. Liability for Causing Death. 73 death of another person, even though damage was thereby Art. 33. directly caused to others by being deprived of his services or support. Still less could his personal representatives bring an action in respect of the wrong committed to the deceased himself. And this is still the law, except in so far as an action lies under Lord Campbell's Act. So a master cannot bring an action for injuries which cause the immediate death of his servant, though he suffers loss by being deprived of those services, nor can a father recover in respect of the funeral expenses incurred by reason of the death of his daughter caused by the negligence of the defendant (t). The following points must be remembered — Points to be (1) No action lies unless, had the deceased lived, he himself could have maintained an action at the time of his death. So it is a good defence that the deceased would have had no cause of action as his injuries were caused by his contributory negligence (it). So, too, if the deceased's cause of action would at the time of his death have been barred by a Statute of Limitations (a;), or by his having accepted satisfaction for his injuries (//), or agreed not to sue (2), no action can be brought under the Act. (2) Every such action must be brought for the benefit of the wife, husband, parent and child of the deceased. Parent includes a grand-parent and a step-parent. Child includes a grand-child and a step-child, and a child en ventre sa mere (a), but, not a bastard (b). The jury apportion the damages amongst these persons in such shares as they may think proper. (0 Clark v. London General Omnibus Co., [1906] 2 K. B. 648 [C. A.]. But the rule does not apply where the cause of action is breach of contract and the death was part of the damages (Jackson v. Watson ,i Sons, [1 909] 2 K. B. 193). It has been held that where by the negligence of the defendant a servant is injured but not killed, the master may bring an action for loss of services, sed aiuerc (Ber ringer v. Great Eastern Rail. Co., 4 C. P. D. 163). O) Pym v. Great Northern Rail. Co., 4 B. & S. 396 [Ex. Ch.]. (a?) Williams v. Mersey Dock Board, [IMS'] 1 K. B. 804 [C. A.]. (y) Read v. Great Eastern Rail. Co., L. R. 3 Q. B. 555. (.) Griffiths v. Earl of Dudley, 9 Q. B. 1). 357 . (a) The George and Richard. L. R. 3 A. P. & E. 466 ; 24 L. T. 717. (fi) Dickinson v. North Eastern Rail. Co., 2 H. & C. 73.">. 74 Effect of Death, etc. of Either Party. Art. 33. (3) The persons for whose benefit the action is brought must have suffered some pecuniary loss by the death of the What damage _, n , . _ . , ,, ., , . ,. i must be deceased (c). " Pecuniary loss means " some substantial proved. detriment in a worldly point of view." Thus, loss of reasonably anticipated pecuniary benefits, loss of education or support is sufficient (d) : as where the plaintiff was old and infirm and had been partly supported by his son, the deceased (e). Even loss of mere gratuitous liberality is sufficient (/). But where a father employed his son, who was a skilled workman, at the current rate of wages, and the son did not contribute to the father's support, it was held that the father had no claim, as he had suffered no pecuniary loss by the death of his son (g). (4) But " where a man has no means of his own and earns nothing, his wife or children cannot be pecuniary losers by his decease. In the like manner when by his- death the whole estate from which he derived his income passes to his widow or to his child (as was the case in Pym v. Great Northern Bail. Co. (//), no statutory claim will lie at their instance" (/'). So, too, the jury cannot, in such cases, take into consideration the grief, mourning, and funeral expenses to which the survivors 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 (k). (5) If the deceased obtained compensation during his lifetime, no further right of action accrues to his repre- sentatives on his decease (I). O) Franklin v. South Eastern Bail. Co., 3 H. & N. 211. (d) Pym v. Great Northern Bail. Co.. 4 B. & S. 396 [Ex. Ch.] ; Franklin v. Smith Eastern Rail. Co.. svnra. 00 Iletherinqton v. North Eastern Rail. Co., 9 Q. B. D. 160. (/) Dalton v'. South Eastern Rail. Co., 27 L. J. C. P. 227. (g) Si/kes v. North Eastern Rail. Co., 44 L. J. C. P. 191. (70 2B. & S. 759 [Ex. Ch.]. (?!) Per Lord Watson in Grand Trunk Rail. Co. of Canada v. Jen- nings, 13 App.Cas. 800, 804. (it) Blake v. Vidian*/ Bail. Co., 18 Q. B. 93 ; Dalton v. South Eastern Bail. Co.. 4C B (x.s.)296; darks. London General Omnibus Co.. [1906] 2 K. B. 648 [C. A.]. (I) Bead v. Great Eastern Bail. Co.. L. R. 3 Q. B. 555. But see Daly v. Dublin, Wieklow and Wexford Bail. Co., 30 L. R. Ir. 514 [C. A.] r where the Irish courts decided contra. Liability for Causing Death, cvsron 75 (6) It was formerly held that where the deceased had Art. 33. insured his life the iury in assessing damages ought to take r J J ° ° i • t i • Insurance not into account the value of the policy payable on his death m to be taken diminution of damages. This is now, however, altered by into account. the Fatal Accidents Act, 1908 (m), by which the rule under Lord Campbell's Act is made the same as in common law actions for damages (n), and " any sum paid or payable on the death of the deceased under any contract of assurance or insurance " is not to be taken into account. («) 8 Edw. 7, c. 7. («) See Art. 40, post. CANADIAN NOTES. 76a Canadian Notes to Chapter VII. of Part I. Death or Bankruptcy op either party. In Ontario, executors or administrators of any deceased per- son are authorized by statute to maintain an action for all torts or injuries 'to the person or to the real or personal estate of the deceased, except in cases of libel and slander, in the same man- ner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recov- ered shall form part of the personal estate of the deceased; but such action .shall be brought within one year after his decease. R.S.O. 1897, c. 129, sect. 10. In case any deceased person committed a wrong to another in respect to his person, or of his real or personal property, the person so wronged may maintain an action against the executors or administrators of the person who committed the wrong. The action shall be brought, at latest, within one year after the decease. This section shall not apply to libel or slander. R.S.O. 1897, c. 129, sect. 11; and see R.S.M. 1891, c. 146,, sect. 48. In case a tort is committed by a person who subsequently dies, an action can be brought against his executors. R.S.O. 1897, e. 129, sect. 11. An administrator is the proper person to bring; an action for tort. Mummery v. Grand Trunk Railway Co., 1 O.L.R. 622. There is at this date (1912), no bankruptcy law in Canada in the strict sense of the term. There is as to corporations the "Winding-up Act," a federal statute under which the affairs of an insolvent bank or trading company are liquidated, and there are provincial statutes providing for the equitable distribution of the assets of insolvents whether individual or corporative. These, however, do not release the debtor from liability for the deficiency as regards each creditor, whether arising from con- tract or tort. The Fatal Accidents Statutes. (Lord Campbell's Act.) No civil action could be maintained at common law for an injury which results in death. The death of a human being, 76a — l.t. 1. 766 CANADIAN NOTES. though clearly involving pecuniary loss, was not at common law the ground of an action for damages, and therefore until the passing of Lord Campbell's Act (9 & 10 Vict., Imp., c. 93), adopted in the various provinces under the title, "The Fatal Accidents Act, ' ' there was no right of action for the recovery of damages in respect of an injury causing death. Monaghan v. Horn, 7 S.C.R. 420 ; Canadian Pacific R. W. Co. v. Robinson, 19 S.C.R. 292 ; Davidson v. Stuart, 14 Man. R. 74. It is necessary, however, to show that the plaintiff had a rea- sonable expectation of pecuniary or material benefit from the life of the person killed. Mason v. Bertram, 18 O.R. 1. The loss of household services accustomed to be performed by the wife, which would have to be replaced by hired services, is a substantial loss, for which damages may be recovered, as is also the loss to the children of the care and moral training of their mother. St. Lawrence and Ottawa R. W. Co. v. Lett, 11 Can. S.C.R. 422; see also Canadian Pacific R. W. Co. v. Robinson, 14 Can. S.C.R. 105. No person can sue under the "Workmen's Compensation for Injuries Act, R.S.M. 1902, c, 187, for damages for the death of a deceased relative, who could not sue under c. 31, R.S.M. 1902, and the statement of claim must show, either that the plaintiff is the executor or administrator of the deceased, or that there is no executor or administrator, or, if there be one, that no action has been commenced within six months after the death of the deceased by or in the name of the executor or administrator ; and it was not sufficient for plaintiff to state simply that he was the father and sole heir at law of the deceased. (Lampman v. Gainsborough (1888), 17 O.R. 191, and Mummery v. G.T.R. (1900), 1 O.L.R. 622, followed.) Makarsky v. Canadian Pacific Railway Co., 15 Man. R. 53. A passenger travelling from Detroit to Buffalo on defendants' train, who was somewhat excited from liquor, but physically cap- able jof taking care of himself, was guilty of several disorderly acts, amongst others of molesting fellow passengers. He was put off the train at Bridgeburg, a station near the Canadian end of the International Railway Bridge crossing the Niagara River, and about a mile distant from his destination. He followed the train on foot and after a scuffle with the bridge guard Jumped CANADIAN NOTES. 76c or fell off the bridge into the river and was drowned. It was held that the defendants were justified in putting him off the train, and were neither obliged to put him under restraint and carry him to Buffalo, nor to place him in charge of some one at Bridgeburg. On the evidence it was impossible to say whether deceased fell off the bridge accidentally or threw himself off ; or that his death was the natural or probable result of his being removed from the train, It was held, also, that there was no evidence of any negligence on the part of the defendants to be submitted to a jury. Delahanty v. Michigan Central R. W. Co., 10 O.L.R. 388 (C.A.). A boy of eight years, while engaged in playing with his com- panions, went through one of the openings in the railway fence, and getting upon the line was killed by a train running at the rate of 25 miles an hour. The jury found that the boy's death was due to the negligence of the defendants, consisting in the poor condition of their fence; that it was not due to the boy's negligence, who was incapable of reasonable thought in the mat- ter, and that he was not a trespasser. Held, affirming the judg- ment of Falconbridge, C.J.K.B., that the Court might draw the inference of fact, under Con/ Rule 817, that the boy's death was due to the defendant's negligence in allowing their train to pass through a thickly peopled portion of the city without the track being properly fenced and that the defendants were liable. (Tabb v. G.T.R., 4 Can. Ry. Cas., followed.) Potvin v. Canadian Paci- fic R. W. Co., 3 Can. Ry. Cas. 8, C.A. (Ont.) ; and see Merritt v. Hepinstall, 25 Can. S.C.R. 150; Eaton v. Sangster, 24 Can. S. C.R. 708. Under the Dominion Railway Act, a railway company, whether the owners or not of a bridge under which their freight cars pass, are prohibited from using higher freight cars than such as admit an open and clear headway of seven feet between the top of such cars and the bottom of the lower beams of any bridge ^which is over the railway. ( McLaughlin v. The Grand Trunk Railway (1886), 12 O.R, 418, and Gibson v. Midland Railway Co. (1883), 2 O.R. 658, distinguished.) Contributory negligence may be a defence to an action founded on a breach of statutory duty. A brakeman standing on the top of a freight car, part of a moving train, was killed by coming in contact with an overhead bridge: 7Qd CANADIAN NOTES. — Held, that as the evidence showed he was on top of the car contrary to the rulas of the company, of which he was aware, the accident was caused by his own negligence, and the defend- ants were not liable, although there was not a clear headway space as required by the above section. Deyo v. Kingston & Pembroke R. W. Co., 8 O.L.R. 588 ; 4 Can. Ry. Cas. 42. And see Muma v. C.P.R., 14 O.L.R. 147, 6 Can. Ry. Cas. 444. Though there may not have been any precise proof that the negligence of the company was the direct cause of the accident, the verdict will stand if the jury could reasonably infer defend- ant's negligence from the facts proved. (Mc Arthur v. Dominion Cartridge Co., (1905, A.C. 72), followed; Wakelin v. London & South Western Railway Co. (12 App. Cas. 41), distinguished.) Grand Trunk Railway Company v. Hainer, 36 Can. S.C.R. 180. The jury are entitled to draw the inference from the unex- plained fact of a railway collision that the death occurred by reason of the company's negligence. "Wilkinson v. B. C. Elec- tric Ry. Co. (1911), 16 B.C.R. 113, 115. The rule that persons lawfully using a highway are entitled to rely on warnings required by statute, as from railway engines, is applicable where the statute requires from motor vehicles warning by light and sound. Toronto General Trusts Corpora- tion v. Dunn, 15 W.L.R, 314 (Man.). Although there was a plain defect in the condition of the way which was the cause of the derailment of the engine, and the consequent death of the engine driver, it was held that an action by the widow could not be sustained as her husband, had he sur- vived, icould not have maintained an action, having negligently disobeyed his orders as contained in the rules, by proceeding with his train in spite of the condition of the signals. Holden v. Grand Trunk R. W. Co., 5 O.L.R, 301 (C.A.) ; 2 Can. Ry. Cas. 352. The administrator within this province of a foreigner who was killed in an accident here through his employer's negligence is entitled, under the amendment to the Fatal Accidents Act, as embodied in s. 2 of the R.S.O. 1897, c. 166, to maintain an action on behalf of the deceased's family, foreigners residing out of Canada, for the recovery of damages sustained by reason of his death. Gyorgy v. Dawson, 13 O.L.R. 381 (Mulock, C.J.). ( 77 ) CHAPTER VIII. OF DAMAGES IN ACTIONS FOR TORT. Aet. 34. — Damages for Personal Injury. There is no fixed rule for estimating damages in cases of injury to the person, reputation, or feelings, and the rinding of the jury will only be disturbed — (a) Where the amount of the damages awarded is so excessive that no twelve men could reasonably have given it (a) ; (b) Where the court comes to the conclusion from the amount or other circum- stances that the jury must have taken into consideration matters which they ought not to have considered, or applied a wrong measure of damages (6) ; (c) Where the smallness of the award shows that they have either failed to take into consideration some essential element (c), or have compromised the question (d). The court will not interfere with the verdict of a jury merely Comment on the ground that the damages awarded (dd) are more than the court itself would have awarded. The court must be satisfied that the jury has not really acted reasonably on (a) Praed v. Graham, 24 Q. B. I). 53. (ft) Johnston v. Great Western Rail, Co., | L904] 2 K. B. 250 [C. A.]. (■) Phillips v. London and South Western Rail, Co.. 4 Q. B. D. 406 ; Johnston v. Great Western Rail. Co., [1904] 2 K. B. 250 [C. A.]. 0) Dulieu v. White $ Sons, [1901] 2 K. B. 669— an action for negli- gence ; and Wilkinson v. Downton, [1897] 2 Q. B. 57 — an action for damages for shock caused by the defendant, as a practical joke, falsely telling the plaintiff that her husband had had his legs broken in an accident. (0 Dixon v. Bell, 1 Stark. 287 ; and see Spark v. ffeslop, 28 L. J. Q. B. 197. 82 Of Damages in Action for Tort. Art. 37. natural consequence of his acting on the faith of the defendant's representation (u). Loss of ship. (5) So, where a steamer (wholly to blame) collided with a sailing vessel, and destroyed its instruments of naviga- tion, and in consequence of that loss, the sailing ship ran ashore, and was lost while making for port, it was held that the loss of the ship was the natural result of the collision, and that owners of the steamer were liable (x): Illustrations Bodily injuries. Art. 38 — Prospective Damages. The damages awarded must include the probable future injury which will result to the plaintiff: from the defendant's tort. (1) So, when a young man of twenty-eight, who had been trained as a marine engineer, and intended to follow it as his profession but had not obtained a post, and was working for his father at a salary of £3 a week, was injured in a railway accident, it was held that £3,000 damages were not excessive. The salary which he would have been probably able to earn was £500 a year, and his physical condition prevented him from earning it. £3,000 repre- sented his prospective loss from this cause (?/). (2) So, in estimating the damages in an action for libelling a tradesman, the jury should take into consideration the prospective injury which will probably happen to his trade in consequence of the defamation (z). Damage to (3) But where the same wrongful act causes damage to property and goods, and also damage to the person, it has been held person (lis- ° ° ; » tinct torts. that there were two distinct causes of action, for which separate proceedings might be prosecuted (a). Injury to trade. 00 Mullett v. Mason, L. R. 1 ('. P. 559. O) The City of Lincoln, 15 1'. 1). 15 [C. A.]. (y) Johnston v. Great Western Rail. Co., [1901] 2 K. B. 250 [C. A.]. (z) Gregory v. Williams, 1 C. & K. 568. («) Brmsden v. Humphrey, 11 Q. B. I). 141 [C. A.]. Prospective Damages. 83 (4) And if the tort be a continuing tort, the principle does Art. 38. not apply ; for in that case a fresh cause of action arises „, " 7 LL . J , Continuing de die %n diem. Thus, in a continuing trespass or nuisance, torts. if the defendant does not cease to commit the trespass or nuisance after the first action, he may be sued until he does. Whether, however, there is a continuing tort, or merely a continuing damage, is often a matter of difficulty to determine. (5) In the recent case of Darley Main Colliery Co. v. Successive Mitchell (b), the appellants worked their mines too close to subsidences the respondent's property, and in consequence some cottages one act f of the respondent were injured in 1868, and were repaired defendant. by the appellants. In 1882, in consequence of the same workings which caused the damage of 1868, a further subsi- dence took place, and the respondent's cottages were again injured. The case turned on the question of whether the respondent was barred by the Statute of Limitations, but incidentally it was decided that the tort was not the excavation, but the causing the respondent's land to subside. The excavation was no doubt the cause of the subsidence, but the tort itself was damage resulting from the infringe- ment of the respondent's right of support, and consequently each separate subsidence was a distinct and separate cause of action for which a new action would lie. Art. 39. — Aggravation and Mitigation. The jury may look into 'all the circumstances, and at the conduct of both parties, and see where the blame is, and what ought to be the compen- sation according to the way the parties have conducted themselves (c). (1) In seduction, if the defendant had committed the Illustrations. offence under the guise of honourable courtship, that is Seduction under guise of courtship. 00 11 App. Cas. 127. • (<") Davis v. London and North Western Rail. Co., 7 W. 1!. 105. G 2 84 Op Damages in Action foe Tort. Art. 39. Character of girl seduced. Plea of truth in defamation. Plaintiff's bad character in defamation. Insolent trespass. ground for aggravating the damages ; not, however, on account of the breach of contract, for that is a separate offence, and against a different person. "The jury did right, in a case where it was proved that the seducer had made his advances under the guise of matrimony, in giving liberal damages ; and if the party seduced brings an action for breach of promise of marriage, so much the better. If much greater damages had been given, we should not have been dissatisfied therewith, the plaintiff having received this insult in his own house, where he had civilly treated the defendant, and permitted him to pay his addresses to his daughter " (d). (2) On the other hand, the previous loose or immoral character of the party seduced is ground for mitigation. The using of immodest language, for instance, or submitting herself to the defendant under circumstances of extreme indelicacy (del). (3) In actions for defamation, a plea of truth is matter of aggravation unless proved, and may be taken into con- sideration by the jury in estimating the damages (e). (4) Evidence of the plaintiff's general bad character is allowed in mitigation of damages in cases of defamation. But although evidence of general reputation of bad character is admissible, evidence of rumours and suspicions before the publication of the libel that the plaintiff had done what was charged in it, or of facts showing the misconduct of the plaintiff, is not admissible (/). (5) Where a person trespassed upon the plaintiff's land, and defied him, and was otherwise very insolent, and the jury returned a verdict for £500 damages, the court refused to interfere, Gibbs, C.J., saying: "Suppose a gentleman has a paved walk before his window, and a man intrudes, and walks up and down before the window, and remains (r/) Per Wilmot, C.J., in Tullidge v. Wade, 3 Wils. 18. (dd) See Verry v. Watkins, 7 C. & P. 308. (e) Warwick v. Fmlkes, 12 M. & W. 507. (/) See Seott v. Sampson, S Q. B. 1). I0i. and Wood v. Durham {Karl). 21 Q. B. 1). ".01 ; and as to giving particulars, see K. S. C, Order XXXVI.. r. 37. Insurance not taken into Account. <=> ; "> there after he has been told to go away, and looks in while Art. 39. the owner is at dinner, is the trespasser to be permitted to say, ' Here is a halfpenny for you, which is the full extent of all the mischief I have done ' ? Would that be a compensation ? " (g). Art. 40. — Insurance not to be taken into Account. In assessing damages whether for personal injuries or for injuries to property the jury ought not to take into account any sum which may be paid or payable to the plaintiff under any policy of insurance (//). Note. — So where a plaintiff sued for damages for per- sonal injuries received in a railway accident, and the jury found as damages £217, and it appeared that the plaintiff was entitled to receive £31 on an accident policy, it was held that the sum awarded by the jury ought not to be reduced by the sum of £31. If it were otherwise the defendant would get the benefit of the plaintiff's having insured, and in some cases might have to pay nothing. Insurance is a matter between the insurer and the assured, and ought not to affect the liability of the wrongdoer to pay in full the damages caused by his tort (h), (;/) Alt rest v. Hariri/, 2.3 Taunt. HI. (70 B radium v. Great Western Rail. Co., L. R. 10 Ex. 1. and se Yates v. W'lujtc, 4 Bing. N. C. 272. CANADIAN NOTES. 86a Canadian Notes to Chapter VIII. op Part I. Estimating Damages for Personal Injuries. In actions for torts the court will not set aside a verdict for excessive damages except upon very clear and manifestly strong grounds. As regards the amount of damages and the merits generally, it is never without reluctance. and hesitation that the court sets aside a verdict in any action of wrongful imprison- ment on the ground of excessive damages, because there is no rule approaching to certainty by which they can be estimated, and it is peculiarly within the province of a jury to assess them. In doing this juries are supposed to give due consideration, not merely to the facts of the case, but to the feelings and motives of the parties, weighing also, as they cannot fail to do in some degree, their characters and stations of life. McDonald v. Cam- eron, 4 U.C.R. 1 ; and see Dobbyn v. Dicow, 25 U.C.C.P. 18 ; Ford v. Gourlay, 42 U.C.R. 552. If a patient refuses to submit to an operation which it is rea- onable that he should submit to, the continuance of the malady or injury which such 'operation would cure is due to his refusal and not to the original cause. Whether such refusal is reason- able or not is a question to be decided upon all the circumstances of the case. And it is not necessarily unreasonable for the patient to refuse to submit to an operation against the advice of his own medical attendant. Bateman v. County of Middlesex (1911), 24 O.L.R, 84. Where a person who is injured through the negligence com- plained of, voluntarily submits himself to unprofessional medi- .cal treatment, proper skilled treatment being available, and the natural results of the injury are aggravated by such unskilled or improper treatment, he is entitled to such damages as would with proper treatment, have resulted from the injury, but not to damages resulting from the improper treatment he subjected himself to. Vinet v. The King, 9 Can. Exch. R. 352. Permanent personal injuries, irrespective of their interference with, the earning power of the person who suffers them, give rise to damages; and if the injuries tend to shorten the life of the 86a— l.t. 1. 866 CANADIAN NOTES. i person injured he is entitled as well to damages on that ground. Particulars of damages delivered not having especially mentioned pain and suffering, they could not he considered in assessing the damages; and as the person injured had died hefore final assessment of the damages, the pain and suffering could not be considered, inasmuch as the right of action for these ceases with the death of the person. McGarry v. Canada West Coal Co. (No. 2), 2 Alta. R. 299. In estimating compensation under the Workmen's Compensa- tion Act, for the loss of a thumb, consideration must be given to the fact that while the claimant is not thereby entirely prevented from carrying on his occupation, Ins chances of employment in competition with others are lessened, and his earning power con- sequently reduced. Roylance v. Canadian Pacific Railway Co., 14 B.C.R. 20. ' | In an action to recover damages for alleged malpractice, the plaintiff is not absolutely entitled to show to the jury the part of the body in question for the purpose of enabling them to judge as to its condition, and the trial judge may refuse permission to do so. (Sornberger v. Canadian Pacific Railway Co., 24 Ont. A.R. 263, approved and distinguished.) Laughlin v. Harvey, 24 Ont. A. R. 438. Estimating Damages to Real or Personal Property. It is not an inflexible rule that the jury Jean give no more in damages for conversion of goods than the value of the goods, though that is the estimate by which they should be governed as a general principle where there is nothing special or unusual in the case. Morton v. McDowell, 7 U.C.R. 339. The courts are reluctant to interfere on the ground of exces- sive damages in actions for trespasses to the person, or such as involve injury to the feelings or character, and in which there can be scarcely said to be any rule for computation. But where the injury is to a right of possession, the damages, if any, might have been estimated, and the jury should not disregard all com- mitatkra. Jeffers v. Markland, 5 U.C.R. (O.S.) 677; Goddard v. Fredericton Boom Co., 1 Han. (N.B.), 536; Rankin v. Mitchell, CANADIAN NOTES. 86c 1 Han. (N.B.), 495; Rose v. Belyea, 1 Han. (N.B.), 109; Alle- nach v. Desbrisay, N.B.R., East. T. 1865. "Where the defendants had wrongfully and wilfully entered upon and cut and carried away timber from the plaintiffs' lim- its, and the plaintiffs sued for trespass only : It was held that the damages should be measured by : ( 1 ) the value of the timber after it was severed and manufactured, so far as it was manu- factured, while on the timber limits of the plaintiffs, immediately before the defendants removed it; (2) such sum as represented the extent to which the limits were injured, if at all, by reason of their having been partly denuded by the acts of the defend- ants; (3) Such further and other damages as resulted to the limits by the acts of the defendants, such, for instance, as waste- ful methods in cutting, using the surface to pass and repass, etc. Union Bank of Canada v. Rideau Lumber Co. (1902), 4 O.L.R. 721. In an action for trespass to land, the defendant, who was a contractor, having driven over the plaintiff's fields where crops were growing, and thereby injured the grass, grain, etc., it was held that the plaintiff might recover to the extent of the ultimate injury resulting to the crop from the act complained of, as ascer- tained at the time of harvest. Throop v. Fowler, 15 U.C.R. 365. By agreement and conveyance executed in April, 1891, by the plaintiffs and one of two appellant companies, and afterwards in 1894 assigned to the other of them, the plaintiffs, who carried on an extensive business of quarrying stone and burning lime on their property, sold, and the two companies successively acquired various gas leases, gas grants, and gas wells theretofore held by the plaintiffs. These gas leases conferred on the holders the exclusive right to explore and drill the lands to which they related, but which Avere not demised thereby, for subterranean or natural gas which had been discovered to be useful both as an illuminant and as fuel, and to set up and use the necessary mach- inery for reducing the said gas into their possession and control. The transaction included the following! clause: "It is understood that the parties of the first part reserve gas enough to supply the plant now operated or to be operated by them on said property." Shortly after the assignment of 1894 the assignee company 86d CANADIAN NOTES. cut off the supply of gas theretofore enjoyed by the plaintiffs under the said reservation clause and refused further supply; and the plaintiffs thereupon procured the gas required for their plant by the acquisition from independent sources of other gas leases and by the construc- tion of works necessary to obtain the same. In an action for damages caused by the deprivation of gas against both com- panies : — Held, that on the true construction of the reservation clause the companies were successively bound to supply from the gas obtained by them to the plaintiffs a sufficient amount to operate their plant, varying according to its requirements : — Held, also, overruling the Court below, that the measure of dam- ages recoverable by the plaintiffs was the cost of procuring the gas to which they were entitled and not the price at which the substituted gas when procured could have been sold ; and that, as they had sold the leases and works used in procuring the sub- stituted gas for more than they cost, they were entitled only to nominal damages. (Le Blanche v. London and North Western Ry. Co. (1876), 1 C.P.D. 286, approved.) Erie County Natural Gas and Fuel Company v. Carroll, [1911] A.C. 105. What Damages are Consequential and what too remote. In an action for damages for being wrongfully ejected from a street car, illness resulting from exposure to cold in consequence of such ejectment is not too remote a cause for damages; and where the evidence was that the person ejected was properly clothed for protection against the severity of the weather, but was in a state of perspiration from an altercation with the con- ductor when he left the car, and so liable to take cold, it was held that the jury was justified in finding that an attack of rheumatism and bronchitis which ensued was the natural and probable result of the ejectment, and in awarding damages there- for. Toronto Ry. Co. v. Grinsted. 21 O.A.R. 578, and see 24 Can. S.C.R. 570; Henderson v. Canada Atlantic R.W. Co.. 25 O.A.R. 437; Grand Trunk Ry. Co. v. Sibbald, 20 Can. S.C.R. 259. CANADIAN NOTES. 86e Where the conductor of a railway company forcibly, and with- out excuse for so doing, removes from a train a passenger who has paid his fare, he is liable for the assault, and the doctrine of respondeat superior applies to the company. But where, in the course of such removal, and while in the act of leaving the car, plaintiff slipped and was injured, the - defendants were held not Liable for such injury, as the removal was not the proximate, but the remote cause of the accident, Williamson v. Grand Trunk Railway Co., 17 U.C.C.P. 615. In Toronto Ry. Co. v. Toms (1911), 44 Can. S.C.R. 268, the question at issue between the parties at the trial, was whether the jury should be directed to apportion the compensation allowed so as to distinguish between that which was attributable to injuries resulting from nervous shock and that properly attri- butable to physical contact. The Ontario Court of Appeal (Toms v. Toronto Ry. Co., 22 O.L.R. 204) had refused to direct an apportionment . On a further appeal this decision was affirmed. Sir Charles Fitzpatrick, Chief Justice of Canada, said: "I would have thought it too clear for argument that where a person suf- fers physical injury, however slight, damages might also be claimed for the fright occasioned thereby. It would appear some- what difficult to distinguish between the injury caused to the human frame by the impact and that resulting to the nervous system in consequence of the shock, the shock and the physical injury being both the result of the same accident. The nature of the mysterious relation which exists between the nervous sys- tem and the passive tissues of the human body has been the sub- ject of much learned speculation, but I am not aware that the extent to which the one acts and reacts upon the other has yet been definitely ascertained. * * * Here the fact of physical injury is established beyond all doubt, and, that fact once admit- In 1, I cannot find the line of demarcation between the damage resulting to the human being by reason of the fracture of a limb or the rupture of an artery and that which may flow from the disturbance of the nervous system caused by the same accident. The latter may well be the result of a derangement of the rela- tion existing between the bones, the sinews, the arteries and the nerves. In any event the resultant effect is the same. The vie- 86/ CANADIAN NOTES. tim is incapacitated and in consequence suffers damages, whether the incapacity results from the physical injury alone or the phy- sical injury with the nervous shock superadded." (44 Can. S.C..R 268.) The case of Victorian Railways Commissioners v. Coultas (1888), 13 App. Cas. 222, is distinguishable, as there the injury was from fright alone without any bodily injury independently of nervous shock. See also Taylor v. British Columbia Electric Railway Co., 16 B.C.R. 109 ; Henderson v. Canada Atlantic Ry. (1896), 25 A. R. 437; Kirkpatrick v. C.P.R., 35 N.B.R. 598. In a newspaper libel action if it appears on cross-examination of the plaintiff that the defendant had recovered damages from another person for other libels to the same purport or effect, the jury ; may properly be told to take that fact into consideration in mitigation of damages. Downey v. Stirton (1901), 1 O.L.R, 186 ; Odgers on Libel, 5th ed., 420# ; and see Ontario Libel Act, 9 Edw. VII. c. 40, sec. 17. Life Insurance as Affecting Quantum of Damages for Fatal Accident. The Fatal Accidents Act, [originally 10 & 11 Vict. ch. 6], R.S.O. 1897, ch. 166, and 1 Geo. V. c. 33 (Ontario), provides that ' ' where the death of a person has been caused by such wrongful act, neglect or default, as would (if death had not ensued), have entitled the party injured to maintain an action and recover dam- ages in respect thereof, in such case the person who would have been liable if death had not ensued, -shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to felony. ' '. Under the Ontario Fatal Accidents Act, it is settled that the only recovery possible is in respect of proved pecuniary loss. And it is the exclusive province of the jury, upon the evidence and under proper instructions by the Judge, to fix the amount of such loss, limited in employers' liability eases under the Work- men's Compensation Act by the maximum amount which can be recovered under that statute. The jury should be told that it CANADIAN NOTES. 86$ is their duty to take into account such items as insurance money, but there is no rule which compels them to deduct the whole amount. Money provisions made by a husband, for the mainten- ance of his widow, in whatever form, are matters proper to be considered by the jury in estimating her loss ; but the extent, if any, to which these ought to be imputed in reduction of damages must depend upon the nature of the provision and the position and means of the deceased. Dawson v. Niagara, St. Catharines and Toronto Ry. (1911), 23 O.L.R, 670, C.A. 87 CHAPTER IX. OF INJUNCTIONS TO PREVENT THE CONTINUANCE OF TORTS. An injunction is an order of a court (a) restraining the Definition, commission or continuance of some act (b). Injunctions are either interlocutory or perpetual. An Interlocutory interlocutory injunction is a temporary injunction, granted or perpetual, summarily on motion (c) founded on an affidavit, and before the facts in issue have been formally tried and determined. Such an injunction is granted to restrain the commission or continuance of some act until the court has decided whether a perpetual injunction ought to be granted. A perpetual injunction is one which is granted after the facts in issue have been tried and determined, and is given by way of final relief. Art. 41. — Injuries Remediable by Injunction. (1) Wherever a legal right, whether in regard to property or person, exists, a violation of that right will be prohibited in all cases where the injury is such as is not susceptible of being adequately compensated by damages, or at least not without the necessity of a multiplicity of actions for that purpose (d). (a) A county court has now, in actions within its jurisdiction, power to grant an injunction against a nuisance, and to commit to prison for disobedience thereof {Ex parte Martin, 4 Q. B. 1). 212 ; affirmed sub nam. Martin v. Bannister, ibid. -J 91 [C. A.]). (]>') As to mandatory injunctions, and as to the general principles guiding the courts in granting or refusing injunctions, see Strahan and Kenrick's Digest of Equity, Book 111., s. 3. (/•) In the King's Bench Division applications for interlocutory .injunc- tions are made by summons in chambers. (//) Imperial Gas Light and Coke Co. Directors v. Broadhent, 7 H. L. Cas. 600. 88 Of Injunctions to Prevent Continuance of Torts. Art. 41. Damages instead of injunction. Interlocutory injunctions. To restrain publication of libel. Illustrations. Nuisances. (2) The court has jurisdiction to give damages instead of granting an injunction, and will gene- rally do so in cases where there are found in combination the four following requirements, viz., where the injury to the plaintiff's legal rights (1) is small, (2) is capable of being esti- mated in money, (3) can be adequately compen- sated by a small money payment, and (4) where the case is one in which it would be oppressive to the defendant to grant an injunction (] 2 Q. B. 454 ; and see Williams v. Mersey Dock* and Harbour Board, [1905] 1 K. B. 804 [C. A. . CANADIAN NOTES. 100a Canadian Notes to Chapter X. of Part I. Limitations of Actions for Tort. In ease of a concealed fraud, the right of any person to bring an action for the recovery of any land or rent of which he or any person through whom he claims may have been deprived by such fraud shall be deemed to have first accrued at and not before the time at which such fraud was or with reasonable diligence might have been first known or discovered. 10 Edlw. VII. (OntJ.), c. 34, sec. 32. But this provision will not enable any owner of land or rent to bring an action for the recovery of such land or rent, or for setting aside any conveyance thereof on account of fraud against any purchaser in good faith for valuable consideration, who has not assisted in the commission of such fraud, and who, at the time that he made that purchase did not know, and had no reason to believe that any such fraud had been committed. 10 Edw. VII. (Ont.), c. 34, sec. 33. Similar provision as to Nova Scotia is made in R.S.N.S., c. 167, sec. 28. Actions "upon the case for words" must be commenced within two years after the words spoken. Actions for assault, battery, wounding, or imprisonment must be commenced within four years after the cause of such actions arose. Actions for trespass to goods or lands, detinue, replevin, or upon the case other than for slander, must be commenced within six years after the cause of such actions arose. 10 Edw. VII. (Ont.), c. 34, sec. 49. In case a person entitled to sue is, at the time the cause of action accrues, within the age of twenty-one years, or non compos mentis, then the time begins on his coming to, or being of full age, or of sound mind. 10 Edw. VII. (Ont.), c. 34, sec. 51. If a person against whom the cause of action accrued is, at such time, out of Ontario, the person entitled to the cause of action may bring the action within a similar time limitation computed from the return of the absent person to Ontario. 10 Edw. VII. c. 34, sec. 52. The Statute of Limitations is not a bar to an action for crimi- nal conversation when the adulterous intercourse between defend- ant and plaintiff's wife has continued to a period within six lDOa— l.t. 1. 1006 CANADIAN NOTES. years from the time the action is brought. King v. Bailey, 31 Can. S.C.R. 338. Section 606 of the Municipal Act, R.S.O. 1897, c. 223, which requires an action against a municipal corporation for its default in keeping its streets in repair to be brought within three months applies to an action against a corporation for an accident occa- sioned by the failure to properly guard an opening made, with the corporation's permission, in the sidewalk adjoining certain premises for access to the cellar thereof; at all events, it was never intended that the granting of such permission, authorized by section 639 of the Act, should render the corporation liable for the acts and omissions of its licensee, except subject to the above requirements of section 606. Minnes v. Village of Omemee, 8 O.L.R. 508 (D.C.). Where a person enters upon the lands of an infant, not being a father or guardian, or standing in any fiduciary relation to the owner, and remains in possession for the statutable period, the rights of the infant will be barred. Re Taylor, 28 Grant, 640; Hughes v. Hughes, 6 O.A.R. 373 ; Faulds v. Harper, 11 Can. S.C.R. 639; and Clarke v. McDonnell, 20 O.R. 564. The Supreme Court of Canada in McConaghy v. Denmark, 4 S.C.R. at p. 632, held that the possession which will be necessary to bar the title of the true owner must.be an actual, constant, visible occupation by some person or persons to the exclusion of the true owner for the full statutory period. See also Coffin v. N. A. Land Co. et al., 21 O.R. 87; Harris v. Mudie, 7 O.A.R. 414; and Griffith v. Brown, 5 O.A.R. 303. The payment of taxes is not a payment of rent within the meaning of the Real Property Limitation Act. Finch v. Gilray, 16 O.A.R. 484; Coffin v. N. A. Land Co., 21 O.R. 87; Brennan v. Finley, 9 O.L.R. 131. In an action of trespass, the dispute was as to the ownership of a strip of land about 53 links in width, which the plaintiff claimed as part of his lot, 16, and the defendants as part of theirs, 17, or if not, as having become theirs by the operation of the Statute of Limitations. Neither of the lots had ever been entered upon or cultivated, and no fence separating them had ever been built. Both parties had cut timber, and that was the CANADIAN NOTES. 100c only use that had ever been made of either lot : — Held, that the statute did not apply; to render it applicable it would be neces- sary to show, if not an entry and cultivation of some part of the land, at least an entry and actual occupation. (Davis v. Hen- derson (1869), 29 U.C.R. 344, distinguished; Harris v. Mudie ( 1882),. 7 A.R. 414, considered.) Huffman v. Rush, 7 O.L.R. 346 (D.C.). In 1888 the Canada Atlantic Railway Company ran their line through Britannia Terrace, a street in Ottawa, in connection with winch they built an embankment and raised the level of the street. In 1895 the plaintiffs became owners of the land on the street on winch they continued to carry on business to the time of their action. In 1900 they brought an action against the Can- ada Atlantic Railway Co., alleging that the embankment was built and level raised unlawfully and without authority and claiming damages for the flooding of their premises and obstruc- tion to their ingress and egress in consequence of such work It was held that the trespass and nuisance (if any) complained of were committed in 1888, and the then owner of the property might have taken an action in which the damages would have been assessed once for all. His right of action being barred by lapse of time when the plaintiffs' action was taken, the action could not be maintained. Chaucliere Machine and Foundry Co. v. Canada Atlantic Railway Co., 33 Can. S.C.R. 11. The Towns Incorporation Act of 1895 (Nova Scotia), c. 4, s. 295, provides that "no action shall be brought against any town incorporated under the Act . . . unless within twelve months next after the cause of action shall have accrued." In an action- against the town of Truro for draining through plaintiff's land, it was held that the trespass being a continuing one was not barred except as to damage suffered more than one year before action brought. Town of Truro v. Archibald, 33 N.S.R. 401; affirmed, 31 Can. S.C.R. 380. Public Authorities Protection Act. No action shall lie or be instituted against a justice of the peace for any act done by him in the execution of his duty as such 100(2 CANADIAN NOTES. justice with respect to any matter within his jurisdiction as such justice unless the act was done maliciously and without reason- able and probable cause. 1 Geo. V. (Ont), c. 22, s. 3. No action, prosecution or other proceeding shall lie or be insti- tuted against any person for an act dene in pursuance or execu- tion or intended execution of any statute or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such statute, duty or authority, unless it is commenced within six months next after the act, neglect or default complained of, or, in case of continuance of injury or damage, within six months after the ceasing thereof. 1 Geo. V. (Ont.), c. 22, s. 13. For other special statutory provisions in force in Ontario as to actions against justices of the peace, magistrates, constables and other persons acting in intended execution of statutory duties see The Public Authorities Protection Act, 1911 (Ont.), 1 Geo. V. c. 22. PABT II. RULES RELATING TO PARTICULAR TORTS. ( 103 ) CHAPTEE I. OF DEFAMATION. Art. 48. — Definitions. (1) Defamation is the publication of and con- cerning a person of defamatory words or of a defamatory picture, etc. (2) A libel for which an action will lie is a statement in writing (or in print or in the form of a picture, or caricature) published without l awful j ustific ation or e^cmecaiciilated to convey to those to whom it is published an imputation on the plaintiff injurious to him in his trade or holding him up to hatred, contempt or ridicule (a). (3) Slander is an oral statement published without lawful justification or excuse calculated to convey to those to whom it is published an imputation on the plaintiff injurious to him in his trade or holding him up to hatred, contempt, or ridicule. No action will lie for slander unless either (a) the plaintiff prove special damage, or (b) the slander is calculated to convey an imputation of one of the kinds enumerated in Art. 50. The three elements necessary to constitute actionable A»uil>. si B of libel are — (1) that the words, etc., complained of are defamatory ; 00 Per Lord Blackburn, Capital and Counties Bank v. Henty, in 7 App. Cas. 741. at p. 771. 104 Of Defamation. Art. 48. Analysis of slander. Justification. (2) that they refer to the plaintiff ; (3) that they were published by the defendant. If the plaintiff establishes these three points, he makes out a prima facie case. If the action is for slander, he must also prove special damage, unless the slander imputes a criminal offence, or reflects on the plaintiff in the way of his trade or profession, etc. See Art. 50. By proving these points, however, the plaintiff only establishes a prima facie case, and in answer to it the defendant is entitled to prove that the publication was justified. He may always justify by showing that the statement complained of was true. That is always a com- plete justification. Proving the truth is generally called " justifying." The defendant may also prove that the publication was privileged, that is, that the occasion of publication was such that he was justified in publishing the words whether true or not. See Arts. 56 and 57. Art. 49. — What is defamatory. (1) Defamatory words or pictures or effigies are such as impute conduct or qualities tending to disparage or degrade the plaintiff (b) ; or to expose him to contempt, ridicule, or public- hatred ; or to prejudice his private character or credit (c) ; or to cause him to be feared or avoided (d). Provided that words published of a corpora- tion are not actionable without proof of special damage if they refer only to personal character (//) Digby v. Thompson, 4 P.. >*c Ad. 821. (V) Fray v. Fray, 34 L. J. C. F. 45. (//) /' 'Anson v. Stuart, 1 Term Kep. 74S ; Walker VJ C. B. (x.s.) 65. Brogden, What is Defamatory. 105 or reputation ; but words calculated to affect a Art - 49 - corporation in its property or business may be actionable without proof of special damage (e). (2) It is for the court to say whether the words complained of are capable of bearing a defamatory meaning, and for the jury to say whether they in fact bear that meaning (/). (3) The words used must (if nothing is alleged to give them an extended sense) be construed in the sense in which they would be understood by ordinary persons. If they are not capable of a defamatory meaning in that sense they may nevertheless be actionable if it is proved that they would be defamatory in the sense in which they would be understood by the persons to whom they were published (/). (4) It is immaterial whether or not the defen- dant meant the words to be defamatory. The question is whether the words he used were calculated to convey a disparaging imputa- tion (g). Note. — Words which are not defamatory in their ordinary sense may, nevertheless, convey a defamatory meaning owing to the circumstances in which they are spoken. If I say of a man "he is no better than his father," these words are not in their ordinary sense capable of a defama- tory meaning. But if the father is known by the persons to whom the words are used to have been a scoundrel, the words used would convey to them the meaning that the son also is a scoundrel. The words then would be defamatory in the sense in which they were understood by the persons to whom they were addressed. (>) South Hetton Coal Co. v. North Eastern News Association, [1894] 1 O.. B. 133 ; Manchester Corporation v. Williams, [1891] 1 Q. B. 94. (/) Capital and Counties Bank v. Henty, 7 App. Cas. 741. (■) Australian Newspaper Co. v. Bennett, |"1894] A. C. 284. 0) Shepheard v. Whitalter, L. R. 10 C. I'. .".02. (0 Capital and Counties Banh v. Henty, 7 App. Cas. 7H. 108 Of Defamation. Art. 49. although some persons might choose to draw this inference, not from the language used, but from the fact referred to (u). Corporations. (6) It is actionable without special damage to say of a colliery company that the cottages let by the proprietors to their workmen are in an insanitary condition, for such an imputation is likely to injure its reputation in the way of its business (x). But inasmuch as a corporation, as distinguished from the individuals composing it, cannot be guilty of corrupt practices, it is not libellous without proof of special damage to charge a municipal corporation with corrupt practices (y). Effigy. (7) The exhibition of the waxen effigy of a person who has been tried for a murder and acquitted, in company with the effigies of notorious criminals, may be defamatory (z). Art. 50. — When Special Damage essential to Action for Slander. (1) Except in the following cases spoken words are not actionable without proof of special damage, and the damage complained of must be such as might fairly and reasonably have been anticipated from the slander (a). (2) No proof of special damage need be given in the case of words imputing : (a) A criminal offence punishable by imprison- ment (6) ; (w) Nevill v. Fine Art and General Insurance Co., [1897] A. C. 68. (.!•) South Hetton Coal Co., Limited v. North Eastern News Associa- tion, [1894] 1 Q. B. 133 [C. A.]. (//) Manchester Corporation v. Williams, [1891] 1 Q. B. 94. (X) Monson v. TussaudSs, Limited, Monson v. Louis Tussaud, [1894] 1 Q. B. 672 [C. A.]. (//) Lynch v. Knight, 9 U. L. Cas. 577. (//) Well v. Beavan, 11 Q. B. 1). 609; Hellwig v. Mitchell, [1910] 1 K. B. 609. Special Damage Essential to Action for Slander. 109 (b) Some disease tending to exclude the party Art - 50 - defamed from society (c). (c) Unchastity in a female (d) ; (d) Unfitness of the plaintiff for his profession or trade, or office of profit (e) ; (e) Dishonesty or malversation in a public office of trust (/) ; or (f) Misconduct in an office of credit or honour such as would be ground for his removal from office (g). (1) The special damage to support an action for slander Damageihusfc must be the natural and probable consequence of the defen- be natural, dant's words (/?-), but need not be their legal consequence, ue cessarilv i.e., the consequence must be such as, taking human nature legal, con- as it is, with its infirmities, and having regard to the gi^j™ 6 ' relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking of the words, not what ought to follow (i). (2) The special damage must be actual temporal loss (k), The special i.e., loss of something pecuniary or capable of being esti- damage must mated in money (Z), mere risk of loss is not enough (m). temporal Thus actual loss of trade or employment is enough (n), as loss. also is actual loss of gratuitous hospitality (o), for a dinner has some pecuniary value ; but loss of friends or society, pain, illness and suffering, are not enough (p). (r) Jilood worth v. Gray, 7 Man. & Gr. 334. (77) Slander of Women Act, 1891. (/) Foulger v. Neweomb, L. R. 2 Ex. 327. (/) Booth v. Arnold, [1895] 1 Q. B. 571 [C A.]. (,/) Onslow v. Home, 2 W. Bl. 750. (7/) Lynch v. Knight, 9 H. L. Cas. 577 ; Chamberlain v. Boyd, 11 Q.B. D. 407 [C. A.]. (v) Lynch v. Knit/lit, 'J IT. L. Cas. 577. (jfe) Per BOWEN, L.J., in Batcliffe v. Evans, [1S92] 2 Q. B. 521 [C. A.], at p. 532. (7) Chamberlain v. Boyd, 11 Q. B. 1). 407. (»/) Ibid., per Bowex, L.J., at p. 416. («) Evans v. Harries, 1 H. & N. 251. 0) Davie* v. Solomon, L. R. 7 Q. B. 112. (<>-) Moore v. Meagher, 1 Taunt. 39 [Ex. Oh.] ; Roberts v. Roberts, 5 I'.. & S. 381 ; Allsop v. 4Z/tt>j». 5 11. & N. 534. 110 Of Defamation. Damage caused bv plaintiff himself. Imputation Art. 50. (3) If the damage be immediately caused by the plaintiff himself, he cannot sue. For instance, where the plaintiff (a young woman) told the slander to her betrothed, who con- sequently refused to marry her, it was held that no action would lie against the slanderer (q). (4) Formerly, words imputing unchastity to a woman ofunchaetity. were n0 £ actionable without proof of special damage except in the city of London. But by the Slander of Women Act, 1891 (r), this scandalous state of the law has been altered, and it is enacted that words spoken and published which impute unchastity or adultery to any woman or girl, shall not require special damage to render them actionable : pro- vided that the plaintiff shall not recover more costs than damages, unless the judge certifies that there was reasonable cause for bringing the action. (5) The words, "You are a rogue, and I will prove you a rogue, for you forged my name," are actionable per se (s). 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 murder of D."] are a sufficient charge of murder to support an action without proof of special damage (t). But if words charging a crime are accompanied by an express allusion to a transaction which merely amounts to a civil injury, as breach of trust or contract, they are not action- able (u). Nor are words imputing an impossible crime, as " Thou hast killed my wife," who, to the knowledge of all parties, was alive at the time (x). (6) The allegation, too, must be a direct charge of a crime punishable by imprisonment. The crime need not be indictable (?/), but a charge of having committed a crime punishable by fine only, although it involves a liability to summary arrest, is insufficient, without proof of special ('/) Speight v. Gomiay, 60 L. J. Q. 15. 231 [C. A.]. (;•) 54 &'oo Vict. c. 51. (*) Jones v. Heme, 2 Wils. 87. (0 Oldham v. Pcahe, W. Bl. 95S Examples of damage implied from imputation me. («) Per Lord ELLENBOROUGH in Thompson v. BertU and per Lord Kenyon, Christie v. Cornell, Feake, 4. (.c) Snaq v. Gee, 4 Co. Rep. Hi ; Heating v. Power, 10 M. & W. 564, •" (y) Weil v. Beavan, 11 Cj. B. 1). GuU son v. Bernard, 1 Camp. IS ; 69. Special Damage Essential to Action for Slander. Ill damage (a). Thus, saying of another that he had forsworn Art. 50. himself is not actionable per se, without showing that the words had reference to some judicial inquiry (b). But an imputation that the plaintiff had brought a blackmailing action is actionable without proof of special damage, for by inference it imputed to the plaintiff that he was guilty of an indictable offence (c). (7) So words imputing mere suspicion of a crime are not actionable without proof of special damage (d). (8) Again, to allege the present possession of an infectious, Imputation of or even a venereal, disease is actionable, but a charge of unf } tncss for past infection is not ; for it shows no present unfitness for society (e). (9) It is quite clear that, as regards a man's business, Imputation or profession, or office, if it be an office of profit, the mere ? u nfit neSs imputation of want of ability to discharge the duties of that or office of office, is sufficient to support an action. It is not necessary profit that there should be imputation of immoral or disgraceful conduct ; the probability of pecuniary loss from such impu- tation obviates the necessity of proving special damage. But the mere disparagement of a tradesman's goods is not sufficient. The disparagement must be of his unfitness for business (/), or some allegation which must necessarily injure his business (g). Thus, words imputing drunkenness to a master mariner whilst in command of a ship at sea are actionable per se (h). And similarly where a clergyman is beneficed or holds some ecclesiastical office, a charge of incontinence is actionable; but it is not so if he holds no ecclesiastical office (i) . 00 Hellwig v. Mitchell, [1910] 1 K. B. 009. (70 Holt v. Schole field, 6 Term Hep. 691. 00 Marks v. Samuel, [1901] 2 K. B. 287 [C. A.]. 00 Simmons x. Mitchell, 6 App. Cas. 156 [P. C.]. (0 See Carslahe v. Mappledoram, 2 Term Rep. 473 ; Blood-worth v Gray, 7 Man. & Gr. 334. (/) See White v. Mellin, [1895] A. C. 154. 00 See Roi/al Baiting Powder Co. v. Wright, Cronleii S- Co 15 It. P. C. 677. 00 Irwin v. Brandwood, 2 II. ic C. 960. (/) Galliee ij v. Mar-shall, 23 L. J. Ex. 78. 112 Of Defamation. Art. 50. Unfitness for offices of honour and credit. (10) So to say of a surgeon " he is a bad character ; none of the men here will meet him," is actionable (k). Or of an attorney that "he deserves to be struck off the roll"(/). But without special damage it is not actionable to impute to a solicitor insolvency (m), or to say "he has defrauded his creditors, and been horsewhipped off the course at Doncaster," because this has no reference to his pro- fession (w). But this seems a curious refinement. A similarly absurd distinction has been taken between saying of a barrister "He hath as much law as a jackanapes" (which is actionable per se) and "He hath no more wit than a jackanapes " (which is not actionable). The point being that law is, but wit is not, essential in the profession of a counsellor (o). (11) With regard to slander upon persons holding mere offices of honour, the loss of which would not necessarily involve a pecuniary loss, the mere imputation of want of ability or capacity is not enough. The imputation to be actionable per se, must be one which, if true, would show that the plaintiff ought to be and could be deprived of his office by reason of the incapacity imputed to him. The implied damage is the risk of loss of the office which he holds. Thus, an imputation of drunkenness against a town councillor is not actionable without proof of special damage. For such conduct, however objectionable, is not such as would enable him to be removed from, or deprived of that office, nor is it a charge of malversation in his office (p). But a charge of dishonesty in his office, against one who holds a public office of trust, such as that of an alderman of a borough, is actionable without special damage, even although there be no power to remove him (q). (70 Southee v. Denny, 1 Ex. 196. (Z) Phillips v. Jansen, 2 Esp. 624. («0 Dauneey v. Holloway, [1901] 2 K. B. 441 [C. A.]. fyt) See also Jenner v. A'Deckett, L. R. 7 Q. B. 11 ; and Miller v. David, L. R. 9 C. 1'. 118. 00 Seeper Pollock arguendo, Ayre v. Craven, 2 A. & E. 2. at p. 4. (w) Alexander v. Jenkins, [1892] 1 <>. B. 797 [C. A.]. (,y) Booth v.Arnold, [1895] 1 i±. B. 57] [C. A.]. Libel oe Slander must Refer to Plaintiff. 113 Art. 51. —2" lie 'Libel or Slander mud refer to Art. 51. the Plaintiff. The plaintiff must prove that the words com- plained of might reasonably be understood by the persons to whom they are published to refer to him. It is no defence that the defendant did not intend to refer to the plaintiff (qq). It is not necessary that the plaintiff should be referred to Comment, by name. A person may be libelled under a fictitious name or by mere description. But there must be enough to show ordinary readers that the plaintiff is the person about whom the defamatory words are used. So "if a man wrote that all lawyers were tbieves, no particular lawyer could sue him unless there is something to point to the particular individual " (r). On the other hand, when the words used are such as to indicate a particular person, he can sue even though the defendant did not know of his existence and did not intend to defame him (qq). (1) So where an article in a newspaper described certain Illustrations, sales of forged antiques as an attempt at deception and extortion, but did not refer to any particular dealer by name or description, it was held that no dealer could sue for libel, as the libel attacked not an individual but a class (s). (2) A newspaper published an article describing a motor festival at Dieppe. The article contained the words : "Whist! there is Artemus Jones with a woman who is not his wife, who must be, you know, the other thing, etc.," and went on to say that Artemus Jones was a church- warden when at home, but that when on the French side of the Channel "he is the life and soul of a gay little band (qq~) E. Hulton ) Williamson v. Freer, L. R. 9 C. P. 393. O) Sadgrove v. Hole, [1901] 2 K. B. 1. (y) Pullman v. Hill Sf Co., [1891] 1 Q. B. 524 (unless the circum- stances are such that the occasion is privileged ; see Edmondson v. Birch. [1907] 1 K. B. 371, post, p. 127. CO Wennhak v. Morgan, 20 Q. B. D. 635. O) Wenman v. Ash, 13 C B. 83G. (Z») MePherson v. Daniels, 10 B. & C. 263 ; Watkin v. Hall, L. R. 3 Q. B. 396. (c) Parkins v. Scott, 1 H. & C. 153. (d) Kendillon v. Maltby, Car. & M. 402. 11(5 Of Defamation. Art. 53. is under a moral obligation to communicate them to a third person (e). Example. (1) But where A. slandered B. in C.'s hearing, and C, without authority, repeated the slander to D., per quod D. refused to trust B. : it was held that no action lay against A., the original utterer, as the damage was the result of C.'s unauthorised repetition and not of the original statement (/). Printing (2) So the printing and publishing by a third party of slander. ora j s i anc | er ( no t per se actionable) renders the person who prints, or writes and publishes the slander, and all aiding or assisting him, liable to an action for libel, although the originator, who merely spoke the slander, will not be liable (g). Duty to (3) In Derry v. Handley (e), Cockburn, C.J., observed: repeat. << Where an actual duty is cast upon the person to whom the slander is uttered to communicate what he has heard to some third person (as when a communication is made to a husband, such as, if true, would render the person the subject of it unfit to associate with his wife and daughters), the slanderer cannot excuse himself by saying, ' True, I told the husband, but I never intended that he should carry the matter to his wife.' In such case the communication 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." Publisher (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 " (h). O) Berry v. Handley, 16 L. T. (n.s.) 20:?. (/) Ward v. Weeks, 1 Moo. & P. 808. (_.")7. (&) Emmens v. Pottle, 16 Q. B. J). 354 ; Vizetelli v. Mudie's Select Library, [1900] 2 Q. B. 170. 118 Of Defamation. Art. 54. prove that the facts alleged in justification are at any rate substantially true in every material particular. Nor is it enough to show that the plaintiff had a general reputation for the misconduct alleged. It must be proved that in fact he was guilty of the misconduct (I). Explanation (2) Littledale, J., thus explains the principle of the tion 1S ' ° a ' defence of justification: "If the defendant relies upon the truth as an answer to the action, he must plead that matter specially ; not because it negatives the charge of malice (for a person may wrongfully or maliciously utter slanderous matter though true, and thereby subject himself to an indictment), but because it shows that the plaintiff is not entitled to recover damages. For the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to, possess " (m). Aet. 55. — Fair Comment. (1) No action will lie if the defendant can prove that the words complained of are a fair and bona fide comment on a matter of public interest. (2) The court decides (i) whether the matter commented on is one of public interest ; (ii) whether there is evidence that any part of the words complained of go beyond the limits of fair comment. (3) The jury, if the court is of opinion that there is some evidence that the comment is not fair, finds whether it is so or not. (4) Matters of public interest include (inter alia) literary and dramatic works, political (0 Wood v. Durham, 21 Q. B. D. 501. (w) See irPherson v. Daniels, 10 B. & C. 263, at p. 272. Fair Comment. 119 matters, and the public conduct of public men, Axt - 55 - but not their private conduct. (1) The defence of fair comment must not be confounded Fair comment .,..„,. . , t . ., ,1 ,, not iustinca- with justification on the one hand, or privilege on the other. t j on> If a defendant justifies, he must prove that the facts stated in the libel are substantially true. If he succeeds, he makes out his defence ; if he fails, he may, nevertheless, successfully contend that the statements are in the nature of comment on a matter of public interest. (2) If the alleged libel is a criticism of some such matter Literary of public interest, as a literary or dramatic work, and the cntlclsm - statements are in the nature of comment, the defendant need not make out that they are just ; it is enough if he can satisfy the jury that they are fair and honest. Thus, if a critic states of a play that it is " dull, vulgar and degraded," and relies on the defence of fair comment, he will succeed if this is an expression of honest opinion, even though the comment be not such as a jury might think a just or reasonable appreciation of the play (%). But the expressions used must not pass the limits of criticism. Facts are not comment ; and if facts are misstated, the defence of fair comment is of no avail, as when in criticising a play, the critic stated it was founded on adultery, when in fact there was no incident of adultery in it. This cannot be " comment," fair or otherwise (o). So, too, criticism of a literary work must not be used as a cloak for mere invective or personal imputations not arising out of the subject-matter or based on fact. State- ments of this kind are not comment on a literary work, and are libellous if they are defamatory and not true (o). Under these principles, not only books and works of art, but even tradesmen's advertisements, may be fairly criticised (_p). (3) When, however, the defence of fair comment is set Attacks on up to an attack on the conduct of public men, the line is l mhhc men O) MoQuire v. Western Morning News, [1903] 2 K. B. 100. (<>) Merivale v. Carson, 20 Q. B. D. 275. O) Paris v. Levy, 30 L. J. C. P. 11. 120 Of Defamation. Art. 55. drawn more closely. A public man may be attacked in his public conduct, but not in his private conduct (except in so far as it touches on his public conduct). And even in regard to his public conduct, if imputations are made which charge a public man with base and sordid motives or dishonesty in the discharge of his duties, the defence of fair comment will not avail unless it is based upon facts which are truly stated, and the facts warrant the imputation made, i.e., the inference drawn from the facts is a reasonable inference from those facts (q). Fair com- (4) Qn the other hand, fair comment must be distin- privilege. guished from privilege. If the defence is privilege, and the privilege is established, the plaintiff fails however grossly untrue the libel may be, unless the defendant was actuated by express malice in making it. If (in the case of qualified privilege) there was express malice, the defence of privilege fails. In fair comment no question of malice arises. The only question is, " is the comment fair, or does it exceed the bounds of fair criticism ? " (r). Fair comment is outside the region of libel altogether, whereas a privileged communication is one which is libellous, but for which no action will lie, because it is made in circumstances which make it privileged (r). Art. 56. — Absolute Privilege. No action lies for a statement made upon an occasion which is absolutely privileged, although made maliciously. Judicial, Parliamentary and State proceedings are occasions of absolute privilege. Note. — Channell, J. (s), thus explains the nature of the absolute privilege in judicial proceedings. "There is no (7) Campbell v. SpottUwoode, 3 B. & S. 769 ; Hunt v. Star Newspaper Co., [1908] 2 K. B. 309: Bahhi/I v. Labourhere. [1908] 2 K. B. 325 ; Joynt v. Cycle Trade Publishing' Co., [1904] 2 K. B. 292. (>•) See per Blackbukn, J., in Campbell v. Spottiswoode, 3 B. & S. 769 ; Merrivale v. Carson, 20 Q. B. D. 275. 0) Bottomley v. Brougham, [1908] 1 K. B. 584. Absolute Privilege. 121 private right of a judge or a witness or an advocate to be Art. 56. malicious. It would be wrong of him, and if it could be proved, I am by no means sure that it would not be actionable. The real doctrine of what is called ' absolute privilege,' is that in the public interest it is not desirable to inquire whether the words or acts of certain persons are malicious or not. It is not that there is any privilege to be malicious, but that, so far as it is a privilege of the individual — I should call it rather a right of the public — the privilege is to be exempt from all inquiry as to malice ; that he should not be liable to have his conduct inquired into to see whether it is malicious or not — the reason being that it is desirable that persons who occupy certain positions as judges, as advocates, or as litigants, should be perfectly free and independent, and to secure their independence that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious." (1) Speeches in Parliament are absolutely and irrebuttably Absolute privileged (t) ; and a faithful report in a public newspaper of ^"Yiamen- a debate of either House of Parliament, containing matter tary pro- disparaging to the character of an individual which had ceedings. been spoken in the course of the debate, is not actionable at the suit of the person whose character has been called in question («•). Statements of witnesses before Parliamen- tary Committees are also privileged (x). Communications relating to affairs of State made by one officer of State to another in the course of duty are also absolutely privi- leged^). (2) Keports, papers, votes and proceedings published by order of either House of Parliament, are absolutely privi- leged (z). (3) All judges, inferior as well as superior, are privileged Judicial for words spoken in the course of a judicial proceeding, P™ ce€ matters of State. (0 StooMale v. Hansard, 9A.&E.1; Dillon v. Balfour, 20 L. R. Ir. 601. 00 Wason v. Walter, L. R. 4 Q. B. 73. (x) Goffin v. Donnelly, 6 Q. B. D. 307. (y) Chatterton v. Secretary of State for India, [1895] 2 Q. B. 189. (z) Parliamentary Papers Act, 1840 (3 & 4 Vict. c. 9). ss. 1, 2. 122 Of Defamation. Art. 56. Reports of legal pro- ceedings. although they are spoken falsely and maliciously, and without reasonable or probable cause (a) ; and so are counsel, for words spoken with reference to and in the course of a judicial inquiry, although the words are irrelevant to any issue before the tribunal (b). Solicitors acting as advocates have a like privilege (c). The report of an Official Eeceiver made to the court in the winding up of a company is privileged on the same ground, as also is the annual report of the Inspector-General in Bankruptcy to the Board of Trade (d). (4) Statements of witnesses made in the course of pro- ceedings in a court of justice, or in any authorised tribunal acting judicially, or for the purpose of preparing proofs for use in such proceedings (e), can never be the subject of an action (/) ; and a military man giving evidence before a military court of inquiry which has not power to administer an oath, is entitled to the same protection as that enjoyed by a witness under examination in a court of justice (g). So also is a person who fills in a form required for obtaining a lunacy order (/z). (5) A fair and accurate report in any neiospaper of pro- ceedings publicly heard before any court exercising judicial authority, is privileged if (i) published contemporaneously with such proceedings, and (ii) not blasphemous or indecent (i). 00 Scott v. Stansfield, L. R. 3 Ex. 220 ; Law v. Llewellyn, [1906] 1 K. B. 487. (i) Munater v. Lamb, 11 Q. B. D. 588. (c) Ibid., and Macltay v. Ford, 29 L. J. Ex. 404. 00 Bottomley v. Brougham, [1908] 1 K. B. 584 ; Burr v. Smith, 1909] 2KB. 306. 00 Watson v. WEwan, [1905] A. C. 480. (/) Seaman v. NetJierelift, 2 C. P. D. 53 ; Barrait v. Kcarns, [1905] 1 K. B. 504. 0;/) Daichins v. RoJteby, L. R. 7 H. L. 744. (//) Hodson v. Pare, [1899] 1 Q. B. 455. 00 51 & 52 Vict. c. 64, s. 3 (Law of Libel Amendment Act, 1888). See a\so post, p. 127. Qualified Privilege. 123 Art. 57. — Qualified Privilege. (1) No action lies for a communication made upon an occasion of qualified privilege and fairly warranted by it, unless it be proved to have been made maliciously in fact (A*). (2) Communications are made upon occasions J of qualified privilege if made by a person in / discharge of some public or private duty, whether / legal or moral, or in the conduct of his own/ affairs in matters w r here his interest is concerned/ Such communications, if fairly warranted by any reasonable occasion or exigency and honestly made, are protected for the common convenience and welfare of society (I). (3) It is the duty of the judge to determine whether an occasion is privileged or not, and if it is, and there is no evidence of actual malice to go to the jury, he must enter judgment for the defendant (m). (4) It is for the jury to find whether a communi- cation made upon a privileged occasion is privileged or not, i.e., whether the communication is fairly warranted by the occasion and made without actual malice (n). (5) If the occasion is privileged the onus is on the plaintiff to prove malice, i.e., " actual malice " or " malice in fact " (o). (7.0 Stuart v. Bell, [1891] 2 Q. B. 341. (Z) See Toogood v. Spyring, 1 C. M. & R., p. 193 ; Macintosh v. Dun, [1 ( J08] A. C. 390, 398. O) Clark v. Molyneux, 3 Q. B. D., at p. 246. (») Cooke v. Wildes, 6 E. & B. 328 ; and per Lopes, L.J., in Pull- wan v. Hill $ Co., [1891] 1 Q. B. 529. O) Clark v. Molyneux, 3 Q. B. 1). 237 ; Jenmre v. Delmege, [1891] A. C. 73. Art. 57. 124 Of Defamation. Art. 57. Comment. Meaning of malice. (6) A communication is made maliciously in fact if made from any indirect and wrong motive, such as anger or ill-will, or any unjustifiable intention to inflict injury on the person defamed; but if a person make a statement believing it to be true he will not lose the protection of the privileged occasion, although he have no reason- able grounds for his belief (p). (1) Lord Blackburn thus explains the nature of qualified privilege and malice : " A publication calculated to convey an actionable imputation is prima facie a libel, the law as it is technically said, implying malice, or, as I should prefer to say, the law being that the person who so publishes is responsible for the natural consequences of his act. But if the occasion is such that there was either a duty, though perhaps only of imperfect obligation, or a right to make the publication, it is said tbat the occasion rebuts the presump- tion of malice, but that malice may be proved ; or I should prefer to say that he is not answerable for it so long as he is acting in compliance with that duty or exercising that right, and the burden of proof is on those who allege he was not so acting " (q). (2) "If," says Brett, L.J., in Clark v. Molyneux (r) , " the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion for some indirect and wrong motive. If he uses the occasion to gratify his anger or his malice he uses the occasion not for the reason which makes the occasion privileged, but for an indirect and wrong motive. . . . Malice does not mean malice in law, a term of pleading, but actual malice, that which is popularly called malice. If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thenceforth that he was malicious, that O) Clark v. Molyneux, 3 Q. B. D. 237 ; Royal Aquarium Society v. Parkinson, [1892] 1 Q. B. 434. (?) Capital and Counties Bunk v. Hcnttj. 7 App. Cas. 741, 787. (r) 3 Q. B. D. 237, 246. Qualified Privilege. 125 he did do a wrong thing from some wrong motive. So, if it Art. 57. be proved that out of anger or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion not for the reason which justifies it, but for the gratification of his anger or other indirect motive." (3) In Stuart v. Bell(s), the plaintiff was a valet, and Social and whilst he and his master were staying at Newcastle as the guests of the defendant, who was a magistrate and mayor of Newcastle, the chief constable showed the defendant a letter which he had received from the Edinburgh police stating that the plaintiff was suspected of having committed a theft at a hotel in Edinburgh which he had recently left, and suggesting a cautious inquiry. The defendant, without making any inquiry, told the plaintiff's master privately that there had been a theft at the hotel and that suspicion had fallen on the plaintiff. It was held that the defendant made the statement to the plaintiff's master in discharge of a moral or social, though not a legal, duty, and that the occasion was privileged. There being no evidence of malice judgment was given for the defendant. (4) So advice given in confidence, at the request of another and for his protection, is privileged ; and it seems that the presence of a third party makes no difference (t). But it seems doubtful whether a volunteered statement is equally privileged (u). Thus the character of a servant given to a person requesting it, is privileged (x) ; and so, also, is the character of a person who states that she is a fit recipient of charity, given to, and at the request of, a person willing to bestow such charity, by the secretary of the Charity Organisation Society (y). 0) [1891] 2 Q. B. 311. (i) Taylor v. Hawkins, 16 Q. B. 308 ; Clark v. Molyneux,3 Q. B. D. 237. (m) Coxhead v. Richards, 15 L. J. C. P. 278 ; Fryer v. Kinnersley, 33 L. J. C. P. 96 ; but see Davi.es v. Sneid, L. R. 5 Q. B. 608. (ar) Gardener v. Blade, 18 L. J. Q. B. 334. (y) Waller v. Loch, 7 Q. B. D. 619. 126 Of Defamation. Art. 57. Statements made by one having an interest to one having a correspond- ing interest. Imputations made to persons not having a cor- responding interest. (5) The character of a candidate for an office, given to one of his canvassers, was held to be privileged (z). (6) A privileged occasion arises, if the communication is of such a nature that it can be fairly said that he who makes it has an interest in making it, and that those to whom it is made have a corresponding interest in having the communication made to them. Thus, where a railway company dismissed one of their guards on the ground that be had been guilty of gross neglect of duty, and published his name in a monthly circular addressed to their servants, stating the fact of, and the reason for, his dismissal, it was held that the statement was made on a privileged occasion, and that the defendants were not liable. For, as Lord Esher, M.E., said: "Can any one doubt that a railway company, if they are of opinion that some of their servants have been doing things which, if they were done by their other servants, would seriously damage their business, have an interest in stating this to their servants ? And how can it be said that the servants to whom that statement is made have no interest in hearing that certain things are being treated by the company as misconduct, and that if any of them should be guilty of such misconduct, the consequence would be dismissal from the company's service ? " (a). (7) However, imputations which, if made to persons having a corresponding interest, would be privileged in the absence of actual malice, cease to be so if spread broadcast. Thus, imputations circulated freely against another in order to injure him in his calling, however bona fide made, are not privileged. For instance, a clergyman is not privileged in slandering a schoolmaster about to start a school in his parish (b). So, the unnecessary transmission by a post office telegram of libellous matter, which would have been privileged if sent by letter, avoids the privilege (c). And where by the defendant's negligence that which would be a privileged communication if made to A., is in fact placed in (z) Cowles v. Potts, 34 L. J. Q. B. 247. (a) Hunt v. Great Northern Rail. Co., [1891] 2 Q. B. 189. (J) Gilpin\. Foivler, 9 Ex. 615. (c) Williamson v. Freer, L. R. 9 C. P. 393. Qualified Privilege. 127 an envelope directed to B., whereby the defamatory matter Art. 57. is published to B., the defendant will be liable (d). (8) But the privilege is not lost when the defamatory Incidental . . , ii -i t „«f publication statement is m the reasonable and ordinary course t»t» persona business incidentally published to clerks for the purpose of not having being copied. So if a solicitor dictates to his clerk a letter, mterest - which would be privileged if written by him personally, the solicitor's privilege covers the publication for this purpose to his clerk ; and if a company writes to another company a defamatory statement of a third person (which would be privileged), the publication to the clerks who in the ordinary course copy the letter, is privileged (e). (9) Extracts from, and abstracts of, Parliamentary papers Extracts and reports are privileged if published bona fide and without mentary malice (/). The reports and papers themselves, if pub- papers, lished by authority of Parliament, are absolutely privileged, and actions brought in respect thereof may be stayed (g). (10) The publication without malice of a fair and accurate Reports of report of judicial proceedings before a properly constituted proceedings'. judicial tribunal, exercising its jurisdiction in open court, is privileged (h). This is a common law defence, open to all persons. It is not the same as the absolute privilege given by statute to reports in newspapers when published contemporaneously (/). (11) Keports of their proceedings published by quasi Reports of ,.',,,. , * r- -i -, .,i . v .. qtiasi judicial judicial bodies bona tide and without any malice, are privi- proceedings. leged. For instance, where the General Council of Medical Education and Eegistration (who are empowered by statute to strike the names of persons off the register of qualified medical practitioners) struck off the plaintiff's name, and, in their annual published report, stated the circumstances (d) Helditcli v. Macllwaine, [1891] 2 Q. B. 51. (V) Boxsius v. Goblet Freres, [1891] 1 Q. B. 812 ; Edmondson v. Birch. [1907] 1 K. B. 371. (/') Parliamentary Tapers Act, 1810 (3 &4 Vict. c. 9), s. 3 ; Mcmgena v. Wright, [1909] 2 K. B. 958. Ql~) Parliamentary Tapers Act, 1810, ss. 1, 2. (//) Kimler v. Press Association, Limited, [1893] 1 Q. B. 65. (/) See ante, p. 122. 128 Op Defamation. Art. 57. which induced them to do so, it was held that in the absence of actual malice the publication was privileged (k). Speeches at (12) So, too, there is qualified privilege for speeches " ,l '" tv , made at meetings of district and county councils (I). councils, etc. ° Newspaper (13) By s. 4 of the Law of Libel Amendment Act, reports of 1888 (m), it is enacted that a fair and accurate report pub- SSucSn 1 lished in any newspaper of the proceedings of a public of public meeting, or (except where neither the public nor any news- !e8 ' etc " paper reporter is admitted) of any meeting of a town council, board of guardians, or local authority, constituted under the provisions of any Act of Parliament, or of any meeting of any commissioners, Select Committees of either House of Parliament, and the publication at the request of any Government office or department, officer of state, com- missioner of police or chief constable, of any notice or report issued by them for the information of the public, shall be privileged, unless it shall be proved that such report or publication was published or made maliciously. But the protection intended to be afforded by that section is not available if the defendant has refused to insert in the newspaper in which the matter complained of appeared, a reasonable explanation or contradiction by, or on behalf of, the plaintiff. Nor is it available to protect fair and accurate reports of statements made to the editors of news- papers by private persons as to the conduct of a public officer (n). Art. 58. — Apology. (1) At common law the fact that the defend- ant has apologised for having defamed the plaintiff is no defence. (2) By statute the defendant in any action for libel or slander may prove in mitigation of damages (/.•) Allbutt v. General Council, etc., 37 W. R. 771. ii Royal Aquarium Society v. Parhimon, [1892] 1 Q. B. I'M ; Pittard v. Oliver, [1891] 1 Q. B. 171. (/«) :>1 .v 52 Vict. c. (>4. («) Dmis v. Shepstone, 11 App. Caa. 187. Apology. 129 that he made or offered an apology before the Art - 58 - commencement of the action, or as soon after- wards as he had an opportunity, if the action was begun before he had an opportunity of doing so (o). (3) In any action for libel contained in any newspaper or other periodical publication, it is a good defence that such libel was inserted without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, the defendant inserted in such newspaper a full apology, or, if the paper or periodical is published at intervals exceeding one week, that he offered to publish the apology in any newspaper or periodical selected by the plaintiff (p). With this defence there must be payment of money into court by way of amends, and no other defence can be pleaded (q). Note. — If the defendant intends to give evidence of an apology in mitigation of damages, he must give notice with his defence (r). The Act of 1888 also enables a defendant, in the case of a libel in a newspaper, to give evidence in mitigation of damage that the plaintiff has recovered, or brought actions for, damages in respect of other libels to the same effect (s). Art. 59. — Slander of Title and Slander of Goods. (1) Slander of title is a false statement dis- paraging a person's title to property. 00 Libel Act, 1843 (G & 7 Vict. c. 96), s. 1. (/>) Ibid., s. 2. (#) Libel Act, 1845 (8 & 9 Vict. c. 7.")), s. 2 ; R. S. C, Order XXII., r. 1. (>•) Libel Act, 1843, s. 1. 0) Law of Libel Amendment Act, 1888 (51 & 52 Vict. c. 64), s. 6. 130 Of Defamation. Art. 59. (2) Slander of goods is a false statement dis- paraging goods manufactured or sold by another. (3) The slander may be oral or in writing or print. (4) An action for slander of title or slander of goods will lie if — (i) The statement is false ; (ii) The publication is malicious ; (hi) The publication causes special damage. Note. — (1) Actions of this kind are not properly actions for libel or slander. The cause of action is for damage wilfully and intentionally done without just occasion or excuse (t). The statement to be actionable need not be defamatory of the person (u), and it will be observed that even though the statement is in writing, it is not actionable without proof of special damage (x). There must also always be evidence of actual malice, or at least absence of reasonable cause for making the statement (y). Special (2) In every case of this kind there must be proof of damage. actual damage, i.e., of actual and temporal loss, resulting from the slander. In the case of slander of goods, loss of custom and falling off in the sales is the usual kind of special damage. Where the slander is of title to property, real or personal, the special damage may be the diminished value of the property by reason of difficulty of selling or letting it (z). Puffing one's (3) For a person in trade to puff his own goods or own goods. proclaim their superiority over those of his rivals, is not actionable, even though the statement is untrue and made (0 Per Bowen, L.J., in Batcliffe v. Evans, [1892] 2 Q. B. 524 [C. A.], at p. 527. O) Ibid. (x) White v. Mellin, [1895] A. C. 154. (y) Wren v. Wild, L. R. 4 Q. B. 730 ; Hubbuck $ Sons v. Wilkinson, Heywood and Clark, [1899] 1 Q. B. 86 [C. A.]; Western Counties Manure Co. v. Zawes Chemical Manure Co., L. R. 9 Ex. 218 ; Halsey v. Brotherhood, 19 Ch. D. 386 [C. A.]. (r) White v. Mellin, supra; llatcliffe v. Evans, supra. Slander of Title and Slander of Goods. 131 maliciously, and causes damage to the rivals. Such a Art. 59. statement may be disparaging to the rivals' goods, but the fact that the person making the statement is a rival puffing his own goods is a lawful excuse for making the state- ment (a). And generally it seems that a disparaging state- ment of another's title or goods is excusable if made bond fide for the protection of one's own property, and not maid fide for the purpose of injuring another's (b). (V) Hnhlttcli 8( Sons v. Wilkinson, Heywood and Clark, [1899] 1 Q. B. 86 [C. A.]. (/<) Halsey v. Brotherhood, 19 Oh. D. 386 [C. A.]. CANADIAN NOTES. 132(1 Canadian Notes to Chapter I. op Part II. Defamation Generally. If slanderous words are used by the defendant in the presence of the plaintiff alone, no one else hearing them, an action of slan- der could not be maintained. There must be publication. The publication of a libellous letter to the plaintiff alone, though it may be the subject of an indictment, is not such a publication as will maintain an action. "Wood v. Mackey (1881), 21 N.B.R. 109, 118. Publication to a third person is necessary in order to sustain the action. The maintaining of the suit depends upon what other persons understood them to mean, and not what the plain- tiff himself understood them to mean. If words are used which require a particular meaning to make them actionable, and all the hearers understood them as conveying a meaning not actionable except the plaintiff, an action could not be maintained as the words did not convey an actionable meaning to the hearers. There would in such case be no publication of actionable words, the plaintiff's understanding them as conveying an actionable mean- ing would not help him, as there would be no publication of words conveying an actionable meaning to other persons. The plaintiff alone so understanding them would be no more a pub- lication than the uttering of slanderous words to the plaintiff which were not heard by anyone else. In the one case he only would hear the words ; in the other he only would understand tiliem as conveying an actionable meaning; in either case there would be a lack of publication of slanderous words required to maintain the action. The right to maintain the action would depend upon what other persons understood the words to mean and not what plaintiff understood by them. Wood v. Mackey (1881), 21 N.B.R. 109. The meaning naturally conveyed to the hearers of the words uttered, and not necessarily the meaning intended by the person who utters them is the meaning which is to be attributed to them by the- jury. So that, if the person who hears them is not aware, when he hears them, of the circumstances which give to the 132a— l.t. 1. 1326 CANADIAN NOTES. words used the point and application alleged by the innuendo, it is as if those circumstances did not exist. Albrecht v. Burkhol- der (1889), 18 O.K. 287. A husband is still liable in Ontario for the torts of his wife if the marriage takes place before July 1, 1884. The provisions of the Married Women's Property Act, 1881, 47 Vict. 19 (0.), applicable to persons married before that date, do not relieve him from liability. (Amer v. Rogers, 31 U.C.C.P. 195, overruled. Lee v. Hopkins, 20 O.R. 666, approved.) Traviss v. Hales, 6 O.L.R. 574. In an action in British Columbia against husband and wife for damages for a libel published by the latter, it was held that the husband was liable. Mackenzie v. Cunningham, 8 B.C.R. 206. When the slanderous words complained of charge a criminal offence it is sufficient to prove that the words imputed the gist of the offence. Reilander v. Bengert, 1 Sask. R. 259. In an action for slander for words used imputing an offence, which though non-criminal, and not being an indictable offence under the Criminal Code, yet affects a person's status as a public officer, the plaintiff is entitled to have the case go to the jury without making out a prima facie case of special damage suf- fered. W. v. A., 13 B.C.R. 333. Where the words are perfectly intelligible English words and their obvious meaning implies a criminal offence, a verdict will stand although evidence was not given to prove the innuendo alleged. Gates v. Lohnes, 31 N.S.R. 221. If the words are capable of the meaning ascribed to them, how- ever improbable it may appear that such was the meaning con- veyed, it must be left to the jury to say whether or no they were in fact so understood. The plaintiff must have an opportunity of showing that in the light of surrounding circumstances, the words were intended to assert the innuendo charged. Barnes v. Carter (1910), 2 O.W.N. 8. Although a word may be libellous per se, colloquial use may have broadened the meaning of the word so that it may not have a criminal connotation. Macdonald v. Mail Printing Co., 2 0, L.R. 278. That question is one for the jury to decide. Ibid. CANADIAN NOTES. 132c If the words complained of are either defamatory per se or might be so understood, the defendant cannot be jieard to say that he did not use them with any such meaning. The question is what would the ordinary bystander infer from defendant's utterances. Lawrie v. Maxwell (1904), 3 O.W.R. 134; PherriU v. Sewell, 12 O.W.R. 63; Banner v. Mail Printing Co. (1911), 24 O.L.R. 507. A statement that the plaintiff had failed to "foist" some hotel scheme on the city and had since allied himself with the promot- ers who had decided to "work the farmers into this gigantic flo- tation" of a binder twine company, is capable of a defamatory meaning in imputing dishonorable or discreditable conduct to the plaintiff. Stone v. Jaffray (1905), 5 O.Wi.R. 725. Semble, a statement that a municipal council was being "held up ' ' by the plaintiff does not imply a criminal charge. Parke v. Hale (1903), 2 O.W.R, 1172; see also Lossing v. Wrigglesworth, 1 O.W.R. 460. Proving Special Damage in Slander Actions. Wliere no damage either special or general had been shown at the trial, no presumption of general damages arose for saying of the plaintiff at a public meeting that he was "a lunatic at large." To maintain the action it was necessary for the plaintiff to have proved some appreciable injury from the use of the words. Boothman v. Smith (1911), 2 O.W.N. 1037. In an action for slander for defamatory words spoken of a woman imputing unchastity or adultery, it shall not be necesary to allege in the plaintiff's statement of claim, or to prove, that special damage resulted to the plaintiff from the utterance of such words, and the plaintiff may recover nominal damages with- out averment or proof of special damage, but shall not be entitled to recover more than nominal damages unless special damage is proved. Libel and Slander Act (Ont.), 1909, 9 Edw. VII. c. 40, sec. 19; Whitling v. Fleming, 16 O.L.R. 263. 132(i CANADIAN NOTES. Proving Publication of Libel. The manager of defendant company handed to his stenogra- pher to be typewritten a draft letter written in the interest of the company, but unconnected with its ordinary business, which contained defamatory statements. It was held on the authority of Pullman v. Hill & Co. (1891), 1 Q.B. 521, that privilege was taken away by the publication to the stenographer, and the defendant company was liable. (Pullman v. Hill & Co. (1891), 1 Q.B. 524, commented on.) Putterbaugh v. Gold Medal Furni- ture Manufacturing Co., 7 O.L.R. 582 (G.A.) ; and see Macken- zie v. Cunningham, 8 B.C.R. 36. Where the name of the proprietor and publisher and address of publication is stated either at the head of the editorials or on the front page of the newspaper, the production of a printed copy of a newspaper shall be prima facie evidence of the publication of the said printed copy and of the truth of such statement of the publisher's name and address. Libel and Slander Act (Ont.), 1909, 9 Edward VII. c. 40, sec. 15. Repetition of Another Defamatory Statement. It is no defence to an action for libel, that the publication com- plained of purports to represent the assertions of a third party, or even the mere repetition by such third party of the assertions of another; such facts can be considered only in mitigation of damages. Patterson v. Edmonton Bulletin Company, 1 Alta. R. 477. No one can escape the consequences of publishing a libel, or slander, because some other person is the author and because that is at the same time stated. Nor can it make any difference, for this purpose, whether the repetition or report of the words is accurate or inaccurate (that question arises on a defence of fair and accurate report only). If the words used be true in sub- stance and in fact, the plaintiff cannot recover. He sues for the injury his reputation has sustained by having his conduct falsely characterized; he can have no damages if it were truly so characterized. Macdonald v. Mail Printing Co. (1900), 32 O.E. 170, 2 O.L.R. 278. CANADIAN NOTES. 1 32e Justifying the Statement as True. If truth of an alleged libellous statement is proven, the defend- ant is not liable for damage resulting to the plaintiff from any- improper inference drawn from the fact stated. In an action for damages for publication of a libel, a plea of justification places upon the defendant the onus of proving the truth of the asser- tion ; and this onus is not discharged by simply proving facts from which the truth of the libel might possibly be inferred ; the inference from the facts must be necessary or inevitable. The facts alleged in support of the plea of justification will be taken into consideration in awarding damages. Patterson v. Plain- dealer Co., 2 Alta. R. 29. It makes no difference on the question of justification that the defendants were only reporting, or purporting to report, tihe words of another. Macdonald v. Mail Printing Co. (1900), 32 O.R. 170. Pleading justification in an action of slander, where no attempt is made to prove the plea, is not in itself evidence of malice entitling the plaintiff to have the case submitted to the jury, the words in question having been spoken on a privileged occasion. Corridan v. Wilkinson, 20 A.R. 184. Defence of Privilege. A fair and accurate report without comment in a newspaper of proceedings publicly heard before a Court of Justice if pub- lished contemporaneously with such proceedings is by statute absolutely privileged, unless the defendant has refused or neglected to insert in the newspaper in which the report com- plained of appeared a reasonable letter or statement of explana- tion or contradiction by or on behalf of the plaintiff; but this enactment shall not authorize the publication of any blasphemous seditious or indecent matter. Libel and Slander Act (Ont), 1909, 9 Edw. VII. c. 40, sec. 11. If the occasion was one of qualified privilege, and there is no evidence of malice a non-suit will be granted. Tapp v. Brenot (1904"), 3 O.W.R. 80. 132/ CANADIAN NOTES. The defendant, the yard master in a railway yard, forthwith reported to the train master, to whom it was his duty to report, that he had seen the plaintiff, a car examiner, break into a car and take therefrom a bundle of handles, whereupon the train master reported it to the company 's detective, and, some four days after- wards, the plaintiff was called into the company's office, the train master, the detective and a couple of .other officials being present, and on his denying any knowledge of the handles, the defendant was called in, and on being questioned, made the charge already referred to. In an action for slander brought by the plaintiff against the defendant the plaintiff stated that shortly before being called into the office he had met the defendant, who informed him of the car having been broken open, but that he did not know who did it. It was held, that while the occasion on which the alleged defamatory statement was made was one of qualified privilege, the statement made by the defendant to the plaintiff was evidence of the defendant's disbelief in the truth of the charge and therefore of malice to go to the jury to displace the protection afforded by the privileged occasion. Woods v. Plummer, 15 O.L.R. 552 (C.A.). Malice as applied to the use of defamatory words may be de- scribed as any improper motive which induces the defendant to defame the plaintiff; any indirect motive other than a sense of duty ; any corrupt motive, any wrong motive, any departure from duty. It is not necessary that the defendant should be actuated by any special feeling against the plaintiff in particular. Latta v. Fargey (1906), 9 O.W.R. 231, affirmed 9 O.W.R. 501; and see Fenton v. Macdonald, 1 O.L.R. 422; Woods v. Plummer, 15 O.L. R. 552. Where the defendant who 'claimed to have been defrauded by the plaintiff wrote a letter charging the plaintiff with fraud to a magistrate whom he had been in the habit of employing as a col- lection agent and asked him to recover the money, it was held that the letter was not privileged, as it did not relate to judicial proceedings before the magistrate as such, nor was it a statement of demand under the Nova Scotia statute, R.S.N.S., 5th series, c. 102. Lowther v. Baxter, 22 N.S.R. 372. CANADIAN NOTES. 132# To relieve a defendant from liability in a libel action on the ground that the words published amounted to nothing more than fair comment four things must be proven: — (a) That the words are fairly relevant to some matter of public interest. (6) They are the expression of an opinion and not the misstatement of a fact; (c) They must not exceed -the limits of a, fair comment, and (d) They must not be published maliciously. If any one of these four ingredients is lacking the defence of fair comment fails. Wilson v. Deane (1910), 3 Alta. R. 186. Where one is assailed in the public press he may answer in the public press, and if in his reply he confines himself to vindicating honestly and without malice his conduct or character, his answer is privileged even if he should incidentally reflect upon the con- duct or character of his assailant, and even of he should mis- takenly misstate the facts. Ibid. Newspaper reports of public meetings and proceedings and publication of official reports are by various provincial statutes declared privileged, but the newspaper must publish if tendered a reasonable statement of plaintiff's explanation. See The Libel Act (Man.), R.S.M. 1902, c. 97, sec. 3; Defamation Act, R.S.B.C. 1897, c. 120; The Libel Act (Ont), 1909, 9 Edw. VII. c. 40, sec. 10. By s. 11 of the Libel Act (Man.), actual malice or culpable negligence must be proved in an action for libel against a news- paper unless special damages are claimed. A general allegation of damages by loss of custom is not a claim for special damages under this section. Ashdown v. Manitoba Free Press Co., 20 Can. S.C.R. 43. Where the defendants, a mercantile agency, did nothing more than publish a true extract from a register kept by virtue of an Act of the Saskatchewan legislature, which was open to inspection by the public, for the purpose of giving information to their subscribers, bona fide believing it to be true, and without malice, they are not liable to an action for libel by reason of the register being erroneous through a mistake of the registry clerk in entering a conditional sale contract as a chattel mortgage. Smith v. Dun (1911) 19 W.L.R. 17 and 518 (Man.). ( 133 ) CHAPTER II. OF MALICIOUS PROSECUTION. Art. 60. — General Hide. (1) Malicious prosecution of criminal proceed- ings consists in instituting unsuccessful criminal proceedings maliciously and without reasonable or probable cause (a). ('2) Malicious prosecution of criminal proceed- ings causing actual damage to the party prose- cuted is a tort, for which he may maintain an action. The distinction between malicious prosecution and false Distinct imprisonment has already been pointed out. Prosecution j™™}^. consists in setting a judicial officer in motion. Imprison- ment. ment consists in causing a person to be arrested or imprisoned without the intervention of a judicial officer. It will be seen from the above article, that in order to Analysis, sustain an action for malicious prosecution, five factors must co-exist, viz. : (1) a prosecution of the plaintiff by the defendant ; (2) want of reasonable and probable cause for that prosecution ; (3) malice ; (4) the determination of the prosecution in favour of the party prosecuted ; and (5) damage caused to that party by the prosecution. If any one of these five factors is absent, no action will lie. It is, therefore, desirable to examine each one of these elements in detail. (a) Sec Churchill v. Siggerx, 3 E. & B. 92!), 937 ; Johnson v. Emerson, L. R. 6 Ex. 329 ; and Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. D. -674 [C. A.]. 134 Of Malicious Prosecution. Art. 61. Art. 61. — Prosecution by the Defendant. (1) The prosecution must have been instituted by the defendant against the plaintiff, and not merely by the authorities on facts furnished by the defendant. (2) A person who has not instituted proceed- ings maliciously may be guilty of malicious prosecution if, after they have been begun properly by himself or another, he continues them maliciously and without reasonable and probable cause, as when in the course of the proceedings he acquires positive knowledge of the innocence of the accused (6). Illustrations. (1) Thus, if a person bona fide lays before a magistrate a Mistake of statement of facts, without making a specific charge of magistrate. crime, and the magistrate erroneously treats the matter as- a felony, when it is in reality only a civil injury, and issues his warrant for the apprehension of the plaintiff, the defen- dant who has complained to the magistrate is not responsible for the mistake. For he has not instituted the prosecution, but the magistrate (c). But if a person goes before a magis- trate and makes a specific charge against another, as by swearing an information that that other has committed a criminal offence, he is the person prosecuting, for he and not the magistrate has set the law in motion. So, too, if a person instructs a solicitor to prosecute, he is liable for the consequences if he does it maliciously and without reason- able and probable cause. (2) It has been held that if a person acting bona fide swears an information before a magistrate, under s. 10 of the Criminal Law Amendment Act, 1885, that he has reason- ed Per Cockburx, C.J., in Fitxjohn v. Mackinder, 9 C. B. (n.s.) 505, and see Weston v. Beeman, 27 L. J. Ex. 57. This seems to be the effect of the cases cited ; bat the point is nowhere very clearly decided. Fitzjohn v. Mackinder should be carefully studied, as the judges deciding it give different reasons Eor their decision. O) Wyatt v. White, 29 L. J. Ex. 193; Waoper v. Booth, 3 Esp. 135,144. Want of Seasonable and Peobable Cause. 135 able grounds for suspecting that a woman or girl is detained Art. 61. for immoral purposes,' and thereupon the magistrate issues a search warrant, the person swearing the information is not a prosecutor, as the magistrate acts judicially upon such information, and the decision of the magistrate that there is reasonable cause for suspicion protects the person giving the information () Lister v. Perryman, L. K. 4 H. L. 521 ; Abrath v. North Eastern Bail. Co., 11 App. Cas. 247. (/) Panton v. Williams, 2 Q.B. 169 [Ex. Ch.]. (//) Lister v. Perryman, L. U. 4 II. L. 521. ('/<) See Abrath v.' North Eastern Bail. Co., nhi supra. 136 Of Malicious Prosecution. Art. 62. and probable cause is for the judge. But there is this important difference, that in malicious prosecution it is for the plaintiff to prove the absence of reasonable and probable cause ; whereas in false imprisonment, the imprisonment is prima facie wrongful, and it is for the defendant, if he can, to prove that he had reasonable and probable cause. Reasonable In Hicks y Faulkner (i), Hawkins, J., says: " I should and probable , v/ i cause defined, define reasonable and probable cause to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to the con- clusion that the person charged was probably guilty of the crime imputed. There must be first an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conviction; thirdly, such secondly mentioned belief must be based upon reasonable grounds; by this I mean such grounds as would lead any fairly cautious man in the defendant's situation so to believe ; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reason- able ground for belief in the guilt of the accused." A man who makes a criminal charge against another, cannot absolve himself from considering whether the charge is reasonable and probable, by delegating that question to an agent, even although that agent be presumably more capable of judging. Thus, the opinion of counsel as to the propriety of instituting a prosecution, will not excuse the defendant if the charge was in fact unreasonable and impro- bable. For as Heath, J., said in Hetvlett v. Crucldcy (k) , "it would be a most pernicious practice if we were to intro- duce the principle that a man, by obtaining the opinion of counsel, by applying to a weak man or an ignorant man, might shelter his malice in bringing an unfounded pro- secution." With regard to the amount of (care which a prosecutor is bound to exercise before instituting a prosecution, it would (0 8 Q. B. D. 167. at p. 171. (/.•) 5 Taunt. 277, at p. 283. Want of Beasonable and Probable Cause. 137 seem that although he must not act upon mere tittle-tattle Art. 62. or rumour, or even upon what one man has told his immediate informant, without himself interviewing the first-mentioned man, yet where his immediate informant is himself cognizant of other facts, which, if true, strongly confirm the hearsay evidence, that will be sufficient to justify the prosecutor in acting, without first going to the source of the hearsay (I). But as circumstances are infinite in variety, it is quite impossible to lay down any guiding principle as to what steps a person ought reasonably to take for informing himself of the truth before instituting a prosecution. Art. 63. — Malice. Malice means not necessarily spite or ill-will but any indirect or improper motive — any motive other than that of securing the ends of justice. If there is want of reasonable and pro- bable cause malice may be inferred without other evidence ; but this inference is not conclusive, and may be rebutted (w). (1) If a person prosecutes another to prevent that other Illustrations. bringing actions against him (n), or to stop the mouth of a Improper witness (o), or to frighten others and thereby deter them motlve from committing depredations on the prosecutor's pro- perty Qj), all these are indirect and improper motives which may constitute malice. (2) So, too, where one is assaulted justifiably, and insti- tutes criminal proceedings for the assault ; if in the opinion of the jury he commenced such proceedings knbwing that he was wrong and had no just cause of complaint, malice may be presumed (q). (7) Lister v. PerrymaH, L. R. 4 H. L. 521. (w) Brown v. Hawkes, [1891] 2 Q. B. 718 [C. A.]. («) Leith v. Pope, 2 W. Bla. 1327. O) Haddrick v. Hedop, 12 Q. B. 267. O0 Stevens v. Midland Rail. Co.. 10 Ex. 352, 356. (//) Hinton v. Heather, H M. & W. 131. 138 Of Malicious Prosecution. Art. 63. (3) In Brozvn v. Hawkes (r) it was pointed out that a ~~ " prosecutor may act without reasonable and probable cause mistake. and yet not be malicious. Stupidity and malice are not the same thing ; and if the defendant honestly believed in the plaintiff's guilt, and there is no evidence that he was actuated by any improper motive, even though he had not taken care to inform himself of the facts, and had no reasonable and probable cause for prosecuting, yet he cannot be said to have acted maliciously. Honest belief rebuts the inference of malice from absence of reasonable and probable cause. Bad memory. (4) So, too, where the defendant has honestly and bona fide instituted the prosecution, he is not liable, although owing to a defective memory he has wrongly accused the plaintiff (s). Malice in a (5) Whether a corporation can be guilty of malicious pro- eorporation. secution was, until recently, not free from doubt, it being said that a corporation having no mind cannot entertain malice (t). In Cornford v. Carlton Bank(u), Dakling, J., held that if a corporation institutes a prosecution acting on motives which in an individual would amount to malice, the corporation may be said to have prosecuted maliciously, and it is now well established that an action of malicious prosecution will lie against a corporation. Explanation of reasons for rule. Art. 64. — Failure of the Prosecution. It is necessary to show that the proceeding has terminated in favour of the plaintiff, if, from its nature, it be capable of such a termination (a 1 ). (1) This rule, which at first sight appears somewhat harsh, is founded on good sense, and applies even where (/•) [1891] 2Q, B. 718 [C. A.]. (.•0 Hicks v. Faulkner, 8 Q. B. I). 107. (0 See per Lord ISramwell in Abrath v. North Eastern Rail. Co.,. 11 A pp. Cas. 247. O) [1899] I Q. B. 392. In the Court of Appeal ([1900] 1 Q. B. 22: [C. A.]) it was conceded that the action would lie. O) Basebe v. Matthews, L. R. 2 C. P. 684. Failure of the Prosecution. 139 the result of the prosecution cannot be appealed (y). As Art^64. Ceompton, J., said, in Castrique v. Behrens (z), "there is no doubt on principle and on the authorities, that an action lies for maliciously, and without reasonable and probable cause, setting the law of this country in motion, to the damage of the plaintiff. . . . But in such an action it is essential to show that the proceeding alleged to be insti- tuted maliciously and without probable cause has terminated in favour of the plaintiff, if from its nature it be capable of such termination. The reason seems to be that, if in the proceeding complained of, the decision was against the plaintiff, and was still unreversed, it would not be con- sistent with the principles on which law is administered for another court, not being a court of appeal, to hold that the decision was come to without reasonable and probable cause." (2) Upon the same principle, an action for trespass by wrongfully causing execution to be issued under a judg- ment obtained by fraud or irregularity, will not lie until the judgment has been set aside. It is not competent to any person to aver anything contradicting or impeaching the judgment as long as it stands (a). Art. 65. — Damage. In order to support an action for malicious prosecution, it is necessary to show some damage resulting to the plaintiff as the natural conse- quence of the prosecution complained of (b). The damage need not necessarily be pecuniary. "It may Damage need be either the damage to a man's fame, as if the matter he p" cumal . v . (y) Basebe v. Matthews, L. R. 2 C. P. 684. (V) 30 L. J. Q. B. 163, at p. 168. (a) Suffer v. Allen, L. R. 2 Ex. 15 ; Metropolitan Banlt v. Pooley, 10 App. Cas. 210. (//) Cotterell v. Jones and Ablett, 21 L. J. C P. 2 ; Byne v. Moore, 5 Taunt. 187. 140 Of Malicious Prosecution. Art. 65. is accused of be scandalous, or where he has been put in danger to lose his life, or limb, or liberty ; or damage to his property, as where he is obliged to spend money in neces- sary charges to acquit himself of the crime of which he is accused " (c). Art. 66. — Maliciously tailing Proceedings in Bankruptcy. An action will lie for maliciously and without reasonable and probable cause instituting bank- ruptcy proceedings (d). The plaintiff in such an action must prove that the proceedings terminated in his favour (e), and (semble) that he has suffered damage beyond the mere costs incurred. Comment. Formerly actions lay for maliciously bringiDg a civil action, because although the action terminated in the defendant's favour, he might have suffered damage to his fair fame, and been put in peril of his liberty. Such actions are now never brought, and probably cannot be brought. The defendant in an action is not now liable to arrest before judgment, and the result of the action (if it terminates in his favour) saves him from damage to his fair fame. He may indeed incur costs beyond what he can recover from the other party, but this is not a legal ground of damage, as the only costs which .the law recognises and for which it will recompense him, are the costs properly incurred in the action itself, and for which he gets judgment in the action. Hence there is no modern example of an action for maliciously taking ordinary civil proceedings (/). (e) Mayne's Treatise on Damages, p. 345. (VZ) Johnson v. Emerson, L. R. impose liability; malice must exist, and the question of malice must he lefl to the jury. St. Denis v. Shoultz, 25 O.A.R, 131. Where the cause of action is not the malicious assertion of an unfounded complaint, but the resorting to a mode of enforcing a claim, which had a foundation, in a manner which was harsh, CANADIAN NOTES. 142c oppressive, and unjustified by the circumstances — e.g., a claim for a debt by arrest or attachment, when there was no attempt to abscond — then the determination of the existence of the debt throws no light upon the question raised in the second action ; and this case does not fall within the general rule, that the suc- cessful termination of the proceedings complained of must be shown — The action can be maintained even though the plaintiff failed in the earlier action, and without the process complained of being set aside ; and an unsuccessful interlocutory attempt to set aside that process is not a bar to the second action. Harris v. Bickerton (1911), 21 O.L.R. 41, D.C. The Criminal Code of Canada, R.S.C. 1906, c. 146, declares the conditions which will justify making an arrest in criminal cases and specifies the various circumstances under which an arrest may be made without a warrant. Under some circum- stances anyone may arrest, ex. gr., where he finds a person com- mitting any of the offences for which the Criminal Code pro- vides that a warrant shall not be necessary, Cr. Code, sec. 32. So also an owner of property, either real or personal, as to which a person is found committing any criminal offence may arrest without warrant the person so found committing the offence and take him before a justice of the peace. Code, sec. 650. A con- stable or other peace officer may arrest without a warrant any person whom he "finds committing" any offence. Cr. Code, sees. 35 and 648. For the statutory law as to arrest upon suspi- cion by constables and others, see Code, sees. 30, 33, 34, 36, 37, 649, 652. ( 143 ) CHAPTER III. OF MAINTENANCE. Art. 67. — Definition. (1) Maintenance is the unlawful assistance, by money or otherwise, proffered by a third person to either party to a ciyil suit, to enable 'him to prosecute or defend it. (2) Assistance of another in a suit is not un- lawful if (a) the maintainer has a common interest in the action with the party maintained; or (b) the maintainer is actuated by motives of charity, bona fide believing that the person maintained is a poor man oppressed by a rich one. Maintenance differs from malicious prosecution in four Distinguished respects : ?? . 1 malicious (a) It applies to civil, not criminal proceedings. prosecution. (b) It consists not in instituting proceedings on one's own behalf, but in assisting another. (c) Malice is not a necessary ingredient. (d) It is not necessary to prove that the proceedings terminated in favour of the person who is person who brings the action of maintenance. (1) Thus, in the well-known case of Bradlaugh v. New- Illustrations. (legate (a), the plaintiff, having sat and voted as a member of Parliament without having made and subscribed the oath, the defendant, who was also a member of Parliament, procured C. to sue the plaintiff for the penalty imposed for 00 11 Q. B. l). l. 144 Of Maintenanc e . Art. 67. Common interest. Interest arising out of charity. so sitting and voting. C. was a person of insufficient means to pay the costs in the event of the action being unsuccessful : — Held, that the defendant and C. had no common interest in the result of the action for the penalty, and that the conduct of the defendant in respect of such action amounted to maintenance, for which he was liable to be sued by the plaintiff. The plaintiff accordingly re- covered all the costs he had incurred in the first action. (2) But, on the other hand, where there is a common interest believed on reasonable grounds to exist, assistance in bringing or defending an action is justifiable. A master for a servant, or a servant for a master, an heir, a brother, a son-in-law, a brother-in-law, a fellow commoner defending rights of common, or a landlord defending his tenant in a suit for tithes (b). (3) So, if a number of proprietors of land subscribe to defend an action relating to the land of one in the reason- able belief tbat they have a common interest in the result, that is not maintenance (c). (4) The other exception is where a rich man gives money to a poor man to maintain a suit out of charity. And the motive is none the less charitable within this exception because it is induced by common religious sympathy, as when the Kensit Crusade Committee assisted a poor man in taking proceedings to get a child removed from a home to the religious principles of which the committee objected (d). And this exception is applicable notwithstanding that if the person advancing the money had made full inquiry, he would have ascertained that there was no reasonable or probable ground for the proceedings which he assisted (e). (7;) Per Coleridge, C.J., in Bradlavgh v. Xewdegate, 11 Q. B. D., at p. 11. (<•) Findon v. Pai'ker, 11 M. & W. (i7.">. See, too, British Cash and Parcel Conveyers, Limited v. Lamson Store Service Co., [1908] 1 K. B. lout; re. A ], and Alabaster v. Harness, [1895] 1 <,>. B. 339 [C. A.]. 00 Holden v. Thompson, [1907] 2 K. B. 489. (r) Harris v. Briscoe, 17 7] 2 Q. B. 57. Action will Lie for Fraudulent Statements. 165 gun, though made to B., was intended to be acted upon, Art. 76. and was acted upon by C. (o). (6) A principal is generally liable for the fraud of his agent Fraud of or servant acting within the scope of his employment, and a ° en for his master's benefit (p), and in Comfoot v. Fotvke (q), the Comfoot v. question arose whether a principal is liable for the act of his agent who makes, on behalf of his principal but without his authority, a false statement which he believes to be true, but which the principal would have known to be untrue. A house agent represented to an intending lessee that there was no objection to a house. There was, in fact, a brothel next door. The principal knew of this ; the agent did not : — Held, the principal was not liable in an action of fraud. The agent was not fraudulent, because he did not know that the statement was untrue, and the principal had not himself committed a fraud, because he did not make the statement or authorise the agent to make it. How then could the principal be liable for a fraud which neither he himself nor his agent had committed ? Where, however, a principal intentionally keeps an agent ignorant of a fact, intending that he shall misrepresent it, and the agent does so, the principal is liable for fraud. His conduct in that case is as fraudulent as if he had himself made the misrepresentation with knowledge of its falsity (r). Art. 77. — The Liability of Directors and Promoters of Companies. Directors and promoters of companies who are parties to the issuing of any prospectus inviting subscriptions to the shares, debentures or deben- ture stock of a company, are liable to persons w 7 ho subscribe on the faith of such prospectus (<») Langridge v. Levy, 2 M. & W. 519. Qp) Barwick v. English Joint Stork Bank, L. R. 2 Ex. 259 [Ex. Ch.]. See Art. 27. ante. (y) « M. & W. 358. (>•) Ludgater v. Love, 44 L. T. (594 [C. A.]. 166 Of Deceit or Fraud. Art. 77. for untrue statements therein made without reasonable ground (s). Comment. The decision in Berry v. Peek (t), that if a person issuing a prospectus had an honest belief in its truth, he could not be made liable in an action for deceit, however careless he may have been, and however slender the grounds of his belief, led to an amendment of the law by which Parliament created a statutory liability to pay compensation for untrue statements in prospectuses, without proof of actual fraud, unless the defendant had reasonable grounds for believing the statement to be true, or can establish one of the other defences allowed by the Act (s). It is now enacted that where a prospectus invites persons to subscribe for shares in, or debentures or debenture stock of, a company, every director and promoter of the company, and every person who has authorised the issue of the prospectus, shall be liable to pay compensation to persons who subscribe for any shares, debenture, or debenture stock, on the faith of such prospectus, for loss sustained by any untrue statement in the same, unless it is proved either — (a) that the defendant had reasonable ground to believe, and did believe, that it was true ; or (b) that the statement fairly represented some statement in the report of an expert (whom the defendant believed to be competent), or in a public or official document ; or (c) that the prospectus was issued without the authority or consent of the defendant, and that he took the proper steps indicated in the Act to make this known (s). It will be perceived that this statute really creates a new statutory duty, the breach of which is a tort, but that it makes no alteration in the common law action for deceit. In short, it makes directors and promoters liable for care- lessness as well as for fraud (u). (.y) Section 84 of the Companies (Consolidation) Act, 1908, being a re- enactment of the Directors Liability Act, 1890. (0 14 App. Cas. 337. (?<) See honey v. Cory, [1901] A. C. 477 ; Prtfontaine v. Greater, [1907] A. C. 101 [P. C.j. CANADIAN NOTES. 1 66tt Canadian Notes to Chapter VI. of Part II. Actions of Deceit and Fraud. It is a fraud sufficient to vitiate the sale of a real estate agent to lead the owner of the land to confide in him as his agent, to get the best possible price for the property and to allow him to close a bargain on his behalf when, as a matter of fact, he, the agent, was at the same time acting as agent for the purchaser in an endeavour to get the property at as low a price as possible, without disclosing that fact to the owner. The purchaser cannot under such circumstances, although ignorant of the fraud, be allowed to retain the benefit of the transaction procured by his agent. (Pearson v. Dublin Corpora- tion (1907), A.C. 351, followed.) Wolfson v. Oldfield (1911), 47 C.L.J. 623 (Man.). An action for deceit is not maintainable unless there is actual moral fraud. Bell v. Macklin, 15 Can. S.C.R. 581 ; Petrie v. Guelph Lumber Co., 11 Can. S.C.R. 450; Tupper v. Crowe, 3 N.S. R. 261; Garland v. Thompson, 9 O.R. 376. Referring to Derry v. Peek, 14 A.C. 337, Wetmore, C.J., said in Davis v. Burt (1910), 3 Sask. R. 446, at page 453 :— " Although possibly that case is not theoretically binding on this Court, prac- tically it is — at least, I consider it would be a very daring Judge who would venture to decide contrary to the unanimous judgment of a Court of such high authority in the Empire. That case, as it appears to me, merely decides that in an action for deceit, although a person may make a statement without reasonable ground for believing it to be true, if he makes it in the honest belief that it is true, it is not fraudulent and does not render such person liable in such an action. But, nevertheless, the fact that there were not reasonable grounds for believing the false state- ment to be true is a matter for consideration in determining whe- ther it was fraudulently made." But no matter how stoutly the defendant may swear to the hon- esty of his belief and no matter how honest he may appear in the witness box, if it clearly appears that he w r as aware of a fact which negatived the false statement sued upon, or, at least, that 166a— l.t. 1. 1666 CANADIAN NOTES. he was conscious that he did not know the contrary of such nega- tiving fact, he cannot be said to have entertained an honest belief in the truth of the false statement. Davis v. Burt (1910), 3 Sask. R. 446, 461. Where the purchaser of a piano was inveigled into signing the contract by a misrepresentation of the real value of the piano, the failure to fulfil the promise introduces the element of decep- tion and fraud on the part of the seller. If there was a deceitful representation as to the fair and reasonable value of the piano — a matter well known to the seller, but not to the purchaser — and the prudence of the purchaser has been laid asleep by the pro- mise, then although this be not in writing nor mentioned in the written evidence of the contract, it may be relied upon to pro- tect the purchaser when sued for the price. Long v. Smith ( 1911) 23 O.L.R. 121 ; Dobell v. Stevens (1825). 3 B. & C. 623, followed. See also per Burton, J.A., in Ellis v. Abell, 10 A.R. 226, at pp. 256, 257; and Ontario Ladies' College v. Kendry, 10 O.L.R. 324. If the contract was induced by material representations which were untrue to the knowledge of the . plaintiff , he has no locus standi to enforce a contract so obtained. Long v. Smith, 23 O.L.R, 121, 129, per Boyd, C. Where a purchaser of chattels procures the delivery of them to him by fraud, his fraud may affect the transaction in one of two ways. If, for example, the owner has been deceived as to the identity of the person with whom he is dealing and, in fact, never intended to pass the property to that person, then no title passes. Speaking generally in such a case the purchaser cannot pass a title to a third person. Where, on the other hand, there is an intention to pass the property, but that intention has been brought about by the collateral fraud of the purchaser, then a title does pass, but it is a title voidable at the option of the seller. In such a case it is settled law that the seller may assert his right t<» avoid the contract against the author of the fraud, against vol- unteers claiming under him, or against purchasers for value acquiring otherwise than in good faith. But when the seller seeks to assert his right he must, of course, as plaintiff, make out his case, and, as against persons other than the author of the fraud, lie niusl shew either that they were volunteers or that they CANADIAN NOTES. 166c were acting in bad faith. Per Duff, J., in Laidlaw v. Vaughan- Rhys (1911), 41 Can. S.C.R. 458, at page 467. Where the sale itself is the product of fraud, the vendee may either repudiate the contract, or claim, by way of damage, the difference between the price paid and the real value of the pro- perty which he has acquired. Lamont v. Wenger (1909), 22 O.L.R. 642. Promoters of a company employed an agent to solicit subscrip- tions for stock, and W. was induced to subscribe on false repre- sentations by the agent of the number of shares already taken up. In an action by W. to recover the amount of his subscription from the promoters: — Held, affirming the judgment of the Court of Appeal (Wilson v. Hotchkiss, 2 O.L.R. 261), that the latter, hav- ing benefited by the sum paid by W., were liable to repay it though they did not authorize and had no knowledge of the false representations of their agent. Held, per Strong, C.J., that neither express authority to make the representations, nor sub- sequent ratification or participation in benefit, were necessary to make the promoters liable; the rule of respondeat superior applies as in other cases of agency. Milburn v. Wilson, 31 Can. S.C.R. 481. ( 167 ) CHAPTEK VII. OF NEGLIGENCE. Aet. 78. — Definition. (1) Negligence consists in the omission to*do something which a prudent and reasonable man would do, or the doing something which a prudent and reasonable man would not do (a) . (2) Negligence is actionable whenever, as between the plaintiff and the defendant, there is a duty cast upon the latter not to be negligent, and a breach of this duty which causes damage to the plaintiff (b). It will be seen that there are three points to be established to found an action for negligence : (i) A duty to take care. (ii) A breach of that duty — negligence, (iii) Damage as the natural and probable consequence. The duty to take care arises out of many relations equally Duty to impossible of strict definition or of enumeration in a short take care - compass. Some of the typical cases are dealt with in the following articles, but the list is not exhaustive. It must not be forgotten, however, that though there is a vast variety of circumstances in which there is a duty to take care, where there is no duty there can be no action for negligence. The student should refer back to Part I., Chapter III., where some of the cases in which it has been held that 00 Blyth v ■. Birmingham Waterworks Co., 11 Ex.781, 784. (//) See per Lord Herschell, Caledonian Rail. Co. v. Mulholland, [1898] A. C. 216, at p. 225. 168 Of Negligence. Art. 78. there is no duty to take care are considered (c). Other cases will be found in the following Articles. What is it will be observed that negligence may consist in either negligence. m i s f e asance, i.e., doing that which a prudent and reasonable man would not do; or in nonfeasance, i.e., omitting to do something which a prudent and reasonable man would do. Negligence is judged by the standard of prudence of an ordinary reasonable man, and if a person omits some pre- caution which a person of ordinary intelligence and prudence would take, he is negligent, although he may himself honestly think it unnecessary to take such a precaution. So a person maybe negligent in taking care of another's money entrusted to him for that purpose — though he takes as much care of it as he takes of his own (d) . Degree of It must be remembered that the degree of care which a care required T)erson j s bound to use in regard to others is relative, and depends on r . .° . , . circum- that in deciding whether a given act is, or is not, negligent, stances. the circumstances attending each particular case must be fully considered. " A man," it has been said, " who traverses a crowded thoroughfare with edged tools, or bars of iron, must take especial care that he does not cut or bruise others with the things he carries. Such person would be bound to keep a better look out than the man who merely carried an umbrella ; and the person who carried an umbrella would be bound to take more care in walking with it than a person who had nothing at all in his hands." Want of A person who undertakes something requiring special skill. knowledge or skill is negligent if by reason of his not possessing that knowledge or skill he bungles, although he does his best. So a person who drives a horse or a motor car is negli- gent if he does something which a prudent person having reasonable skill as a driver would not do : and a person (c) See especially Wiwberbottom v. Wright. 10 M. & W. 109 ; Glad- well v. Steggall, 5 Bing. N. C. 733; and Le Lievre v. Gonhl, [1893] 1 Q. B. 491 [C. A.], ante, Art. 17; and Caledonian Bail. Co. v. Mulholland, [1898] A. C. 216. (d) Doorman v. Jenkins, 2 A. & E. 256. Definition. 169 practising surgery without the ordinary skill and knowledge Art. 78. of a surgeon, is negligent if he blunders by reason of his want of knowledge and skill (e). But no person is required to have extraordinary foresight, prudence or skill, and so long as one uses ordinary skill and acts with reasonable prudence, he cannot be said to be negligent. So in the case of a solicitor, erroneous judgment upon a new point of law or upon a difficult question of construction, is not negligence, but ignorance of practice and mismanage- ment of the preparation of a case for trial is, for these are matters in which a solicitor of ordinary intelligence, and having that knowledge of his professional duties which all solicitors should have, ought not to make a mistake (/). Art. 79. — Duty of Persons using Highway to take Care. Every person using a highway or other place frequented by the public owes a duty to take care as regards the persons and property of others. So if a person driving or riding on a highway by his negligence runs over, or other- wise damages, another person on the highway an action will lie for the damage suffered. So, also, persons in charge of ships at sea or on rivers are bound to use care not to do damage to the persons or property of others (g). Note. — This rule does not depend on the special nature of highways. It applies generally to all places where (0 Gladwell v. Steggall, 5 Bing. N. C. 733. (/) See Qodefroy v. Balton, 6 Bing. 460, 468. (a) See the rule stated more broadly by Lord BLACKBURN in Dublin, Wiohlow and Wexford Rail. Co. v. Slattery, 3 App. Cas. 115"), at p. 1206 ; and by Lord Esher more broadly still in Heaven v. Pender, 11 Q. B. D. 503 [C. A.]. In the latter case Cotton and Bowen, L.JJ., dissented from Lord Esher's proposition, and Lord ESHER himself explained it in Le Lievre v. Gould, [1893] 1 Q. B. 491. 497 [C. A.]. 170 Of Negligence. Art. 79. persons are likely to meet others. As Lord Blackburn says : ' ' Those who go personally or bring property where they know that they or it may come in collision with the persons or property of others, have by law a duty cast upon them to use reasonable care and skill to avoid such a collision " (h). So the rule applies equally to persons on railway stations, in shops, or any other places where people congregate. Aet. 80. — Duty of Carriers of Passengers. Carriers of passengers by any sort of carriage or conveyance owe to passengers a duty to take reasonable care to carry them safely. This dut}~ arises not from contract but from the fact that the passenger is being carried with the knowledge and consent of the carrier; and it applies whether the carriage is gratuitous or for reward (i) , but not if the passenger is a mere trespasser (A-). Note. — This rule is the foundation of the liability of railway companies to their passengers. That the duty is one arising quite independently of any contract between the carrier and the passenger is laid down in Kelly v. Metro- politan Bail. Co. (I), and is well shown by the following illustrations. It must be noted that a carrier of passengers (unlike a common carrier of goods) does not warrant the safety of the passenger. He is only liable for negligence, and if an injury happens to the passenger without negligence there is no liability (m). Illustrations. (1) An infant over three years of age whilst travelling by railway with its mother (with the knowledge and implied consent of the company's servants, but without a ticket) was injured by the negligence of the railway company. The (/<) Dublin. WieJtlow and Wexford Bail. Co. v. Slattery, 3 App. Cas. 1155, at p. 1206. (0 Harris v. Perry $ Co., [1903] 2 K. B. 219. (A) Grand Trunk Bail. Co. v. Bamett, [1911] A. C. 361 [P. C] ; Lygo v. Newbold. 9 Ex. 302. (0 r 1895] 1 Q. B. 944 [C. A.], explaining Taylor v. Manchester. Sheffield and Lincolnshire Bail. Co., [1895] 1 Q. B. 134 [C. A.]. O) Beadhud v. Midland Bail. Co.,!,. K. 4 Q. B. 379 [Ex. Ch.]. Duty of Carriers of Passengers. 171 company were held liable though there was no contract to Art. 80. carry the infant (u). (2) But where a person was injured whilst travelling on the footboard of a train in defiance of a byelaw and without the permission of the company, so that he was a mere trespasser, it was held that the company owed him no duty and he had no cause of action (o). (3) A passenger in a railway train was injured in an accident caused by the breaking of the tyre of a wheel of the carriage in which he rode. The defendants had used all diligence in providing a safe carriage and examining it before starting and in the course of the journey. There being no negligence the company were not liable Qj>). See also Harris v. Perry <& Go. (r), cited ante, p. 41, Art. 18. Art. 81. — Duty of Occupiers of Land and Houses to Persons coming by Invitation, etc. (1) An occupier of land, buildings or structures owes to persons resorting thereto in the course of business upon his invitation, express or implied, a duty to use reasonable care to prevent damage from unusual danger of which he knows or ought to know (s). (2) An occupier of land or buildings owes to bare licensees and guests a duty not to set a trap, i.e., not to put any unexpected danger there without warning the licensee or guest (t). The duty owed to persons coining in the course of Persons business by invitation applies to all persons who go on °°"}"ation. O) Austin v. Great Western Rail. Co., L. R. 2 Q. B. 442. (o) Grand Trunk Rail. Co. v. Harnett, [1911] A. C. 361 [P. C.]. 0>) Readhead v. Midland Rail. Co., L. R. 4 Q. B. 379. (r) [1903] 2K. B. 219 [C. A.]. (*) Indermaur y. Dames, 1>. R. 1 C. P. 274; affirmed 2 C. P. 311 [Ex. Ch.]. (0 See ibid, and Gautvet v. Egerton, L. R. 2 C. 1'. 371. 172 Of Negligence. Art. 81. business which concerns the occupier, or in which he is even indirectly interested. There need not be an express invitation. An invitation is implied when the persons come in the ordinary course of business. It will be noticed that the rule of liability does not throw on the occupier an absolute duty to insure the safety of the premises. So he is not liable for some latent defect in a structure which he did not know of and could not have provided against by taking reasonable care. It is only a duty to use reasonable care to prevent damage from unusual danger, i.e., from dangers which would not usually be found on premises of the kind. Persons cannot complain of dangers which they would expect to find on premises of the kind. Duty as As between landlord and tenant the duty to repair the landlord and d em i se d premises depends entirely on the contract between tenant. the parties, and apart from contract the landlord owes the tenant no duty to repair or not to let the premises in a dangerous condition. Hence, if a landlord lets a house in a dangerous condition, he is not liable to the tenant or to a person using the premises by invitation of the tenant for any injuries happening during the term due owing to the defective state of the house (u). Accordingly when a landlord contracted with his tenant to repair a defective house, but failed to do so, and the wife of the tenant was injured by reason of the defective state of the house, it was held that she had no cause of action, as she was a stranger to the contract (x). So, too, when an owner of a building let out in flats or separate tenements keeps possession of the common stair- case, he owes no duty to his tenants (apart from contract) with regard to lighting and repairing the staircase, and the guests of his tenants or persons coming on business with them have no better rights than the tenants themselves. Accordingly, if such a person is injured in consequence of O) Lane v. Cox, [1897] 1 Q. B. 415 [C. A.]. As to the implied warranty in the case of a letting of a furnished house, see Smith v. Marrable, 11 M. & W. 5 ; and Wilson v. Finch Hatton, 2 Ex. D. 33(1. And as to the statutory obligation to repair in the case of small bouses, see the Housing, Town Planning, etc. Act, 1909 (9 Edw. 7, c. -If), ss. 14, 15. (*) Cavalii r v. Pape, [1906] A. C. 428. Duty of Occupiers to Invited Persons, etc. 173 the dangerous condition of the staircase he has no cause of Art. 81. action against the landlord (y), unless the landlord has taken upon himself, by contract with the tenant, the obligation of repairing, in which event, as he must con- template that the staircase will be used by persons having business with the tenants, he owes them a duty to keep it in a reasonably safe condition (z). Bare licensees, i.e., persons who come not for any business licensees and in which the occupier is interested, but merely by permission s for their own purposes, and guests, are in a somewhat different position. Their position is analogous to that of a i person who receives a gift. He is only entitled to use the place as he finds it, and cannot complain, unless there is some design to injure him or the occupier has done some wrongful act, such as digging a trench on the land or misrepresenting its condition or anything equivalent to laying a trap for the unwary. A giver of a gift is not responsible for the insecurity of the gift unless he knows its evil character at the time and omits to caution the donee. So, too, in the case of a person to whom permission to go on land is given, he cannot complain unless there is something like fraud in the gift (a). Trespassers are at any rate in no better position than Trespassers, bare licensees, and, as no permission is given, there can be no duty to give warning of danger. But even a trespasser has a right of action if he is injured, whilst trespassing, by some wrongful act of the occupier, as for instance, if he is assaulted, or is injured by something which the occupier of the land has put there for the purpose of injuring him (b). And if a person knows that others are in (//) Huggett v. Miers, [1908] 2 K. B. 278 [C. A] ; and compare Ivay v. Hedges. 9 Q. B. D. 80. It is difficult to reconcile Hargroves, Aronson X Co. v. Hartopp, [1905] 1 K. B. 472, with these cases. (z) Miller v. Hancoc A, [1893] 2 Q. B. 177 [C. A.J. It is difficult to dis- tinguish this ease from Cavalier v. Pape, [1906] A. C. 428, and to see why if the wife in Cavalier v. Pape could not take the benefit of her husband'- contract, the guest of the tenant in this case could take advantage of the tenant's contract with his landlord. In Cavalier v. Pape, the landlord must have contemplated that the house would be used by the wife. Perhaps Miller v. Hancock is bad law. See Huggett v. Miers, supra. O) See the judgment of Willes, J., in Gautret v. Egerton, L. R. 2 C. 1\ 371. (J) Bird v. Holbrook, 4 Bing. 628. 174 Of Negligence. Art. 81. Illustrations. Persons coming by invitation. the habit of trespassing or are likely to trespass, he may be liable if he leaves about dangerous things which will act as allurements and so induce people to trespass, and does not take proper means to prevent consequent damage (c). The judgment of Willes, J., in the two leading cases of Indermaur v. Dames and Gautret v. Egerton, should be carefully studied. (1) Upon the defendant's premises was a trap-door on the level of the floor used for raising and lowering bags of sugar from one floor to another. It was not necessary that it should be unfenced when not in use. The plaintiff, a journeyman gasfitter employed by persons who had fixed a gas regulator upon the defendant's premises, came to test the apparatus. Whilst so engaged he fell through the trap- door and was injured. The trap-door at the time was not in use and was not fenced. There was no negligence on his part : — Held, that he was on the premises on business in which the defendant was interested, and that the defendant was liable as the danger was an unusual danger, and the defendant had neglected his duty to take reasonable care by fencing it or warning the plaintiff (d). (2) The plaintiff, a licensed waterman, having complained to the person in charge that a barge of the defendant's was being navigated unlawfully, was referred to the defendants' foreman. While seeking the foreman, he was injured by the falling of a bale of goods so placed as to be dangerous, and yet to give no warning of danger : — Held, that the defendants were liable (c). (3) The defendant engaged a contractor to erect a grand stand for viewing races. The plaintiff paid for a seat on the grand stand. Owing to the negligence of the contractor the stand was defective, and it fell and the plaintiff was injured. The defendant was liable, although neither he nor his servants were personally negligent. It was their duty to see that the stand was reasonably safe (/). (r) Cooke v. Midland Great Western. Railway, [1909] A. C. 229. (//) Indermaur v. Barnes, L. R. 1 C. P. 274 ; affirmed L. K. 2 C. 311 [Ex. Ch.]. 0) White v. France. 2 C. P. 1). 308. (/) Francis v. Coehrell, L. R. 3 Q. B. 184. Duty of Occupiers to Invited Persons, etc. 175 (4) Workmen were allowed to cross a piece of vacant land Art. 81. to get to some docks. On this land were canals and bridges. One of the bridges was out of repair, and a workman when crossing by it fell into a canal and was drowned. In an action brought by his widow it was held that as the work- man yas a bare licensee he must take the place as he found it, and as there was no trap the defendant was not liable (g). So, too, in Hounsell v. Smyth ic was held that a person who, whilst crossing waste land by mere permission of the owner, fell into an unfenced quarry, had no cause of action (Ji). (5) An owner of land had a private road for the use of persons coming to his house. He allowed a builder to use it, and the builder put on it a heap of slates. He left them there at night and did not light them. The plaintiff, who came along at night, drove into the heap and was injured. This amounted to a trap. The defendant held out the road as a safe and convenient access to his house and then placed (or allowed the builder to place) a dangerous obstruction in it(i). (6) In Loivery v. Walker ( k) the defendant was a farmer who put in a field a horse which he knew to be savage. The defendant had tacit permission to cross the field, aud whilst doing so was bitten by the horse. This was in effect setting a trap. (7) If a person sets a spring gun on his land with the Trespassers, intention that it shall go off and cause injury to trespassers, he is liable for the intentional wrong so done. What he does really amounts to an assault (I). If he leaves dangerous things like guns about he must take proper precautions to prevent their doing damage (ra) ; and a fortiori he is liable if he contrives that they shall do damage. Qf) Gautret v. Egerton, L. R. 2 C.P. 371. (h) Hounsell v. Smyth, 7 C. B. (N.s.) 731. (i) Corby v. Hill, 4 C. B. (n.s.) 556. (70 [1911] A. C. 10. (Z) Bird v. Holbrook, 4 Bing. 628. (/«) See Dixon v. Bell, 5 M. & S. 19S. 176 Of Negligence. Art. 81. (8) In Cooke v. Midland Great Western Eailway of Ire- land (n) the defendants had a turntable on land adjoining a highway, and to which there was easy access by a gap in the hedge. They knew children were in the habit of trespass- ing. Children got through the gap and were injured whilst playing with the turntable, which was left in a dangerous condition. Even if the children were to be regarded as trespassers the company were liable. For they left an allurement near a highway by which the children were allured into trespassing and playing with the dangerous machine. Probably they would not have been liable if they had not left the gap so as to make trespassing easy and left an allurement to induce the children to trespass. This almost amounted to an invitation. Aet. 82. — Duty of Bailees of Goods. Bailees of all kinds, including carriers, owe to their bailors a duty to take care of the goods and chattels bailed. The degree of care required varies with the nature of the bailment (mi). Note. — All kinds of bailees of goods and chattels are- bound at least to take reasonable care of the goods bailed to them, though, generally speaking, greater care is expected of one who derives benefit from the bailment, such as a borrower of goods, or a pawnbroker or hirer, or a ware- houseman who is paid for keeping them, than from one who has the custody of goods for the benefit of the bailor only, such as one who gratuitously undertakes their custody for the convenience of the owner (o). The topic of the liability of carriers and other bailees for the safety of goods entrusted to them is too large to be dealt with fully in this Work, and it is only necessary here to refer the student to the cases cited in a previous Article, O) [1900] A.C. 229. («?;) See Coggt v. Bernard, 1 Sm. L. C. 173. (c) Sit ante, Art. 18. Duty of Bailees of Goods. 177 which show that the liability is one in tort, arising by Art. 82. reason of the bailment and quite apart from contract (p). It must be remembered, however, that the liability of a bailee may be modified by contract between the parties, and where goods are carried under an express contract the common law liability of the bailee may be thereby much enlarged or curtailed. At common law a common carrier, that is, a person who Common holds himself out as carrying on the business of carrying carriers. the goods of all and sundry from place to place, is liable for any loss of, or injury to, the goods unless he can show that the loss was due to the act of God or the King's enemies, or to some inherent vice or unfitness to be carried of the goods themselves. A carrier of goods by sea is under the same liability, as also is an innkeeper. The common law liability in all these cases has to some extent been modified by statute (q), and may always in any particular case be modified by agreement between the parties. Bailees who are under this special liability are sometimes (though not quite accurately) spoken of as " insurers." Art. 83. — -Duty to take Precautions with regard to tilings Dangerous in themselves. (1) In the case of articles dangerous in them- selves such as loaded firearms, poisons, explosives and other things ejusdem generis, there is a peculiar duty imposed on those who send forth, make or leave about such articles to take pre- cautions that the>- shall not do damage to persons who may come in contact with them (r). O) See Turner v. Stallibrass, [1S98] 1 Q. B. 5G [C. A.] ; and Meux v. Great Eastern Rail. Co., [1895] 2 Q. 13. 387. (fl) See notes to Coggs v. Bernard in 1 Sm. L. C. 173. As to inn- keepers, see Qalye't ('axe and notes in 1 Sm. L. 0. 119. (/■) Per Lord Dunedin in Dominion Natural Gas Co. v. Collins and Perkins, [1909] A. C. 610, (JIG [P. C.]. 178 Of Negligence. Art. 83. (2) \ person who without due warning supplies to others for use an instrument or thing which to his knowledge, from its construction or other- wise, is in such a condition as to cause danger not necessarily incident to the use of such instru- ment or thing is liable if damage is caused thereby (s). (3) If damage is done by reason of the neglect of such precautions or warning, it is no excuse that the damage would not have happened but for the intermeddling of some third person, if such intermeddling is such as might naturally occur (t). (4) But if the immediate cause of the damage is the conscious act of volition of some third person that is a defence, for no precaution can avail against such conscious act of volition (t). Comment. The first rule is applicable to all things dangerous in themselves, such as those above described. The nature of the precautions to be taken must necessarily depend on the circumstances. In some cases it would be proper and sufficient to give warning of the danger so as to put persons on their guard against dangers which are not apparent from the nature of the thing. The following illustrations will show the nature of the precautions which the courts have held requisite in different circumstances (see also the closely allied rules stated in Arts. 89 — 91). In most of these cases the immediate cause of the damage has been the intermeddling of a third person. This is no defence if such intermeddling is what would be naturally expected of a person who was unconscious of the danger or of the proper way to avoid it. "A loaded gun will not go off unless someone pulls the trigger, a poison is innocuous unless someone takes it, gas will not explode unless it is mixed with air and then a light is set to it " ; yet in each (.?) Per Cotton and Bowen, L.J J., in Ilea ecu v. Pender, 11 Q. B. 1). 503, 517 [C. A.]. (0 See note, (r), ante, p. 177. Duty to Take Precautions, etc. 179 of these circumstances the liability has been enforced. It Art. 83. is, however, another matter if a third person finding a loaded gun consciously fires it off at someone, or if a person who has bought poison consciously takes it himself or administers it to someone else. In such cases the damage is not caused by the absence of precautions, but by the wrongful act of the person who fires the gun or administers the poison. (1) Where the defendant entrusted a loaded gun to an Illustrations. inexperienced servant girl, and she pointed and fired it at tbe plaintiff's son, wounding and injuring him, it was held that the defendant was liable. He had given directions that the priming should be removed so as to make the gun safe, but this was not done properly and the gun was left in a dangerous state ; so the defendant was responsible («). (2) Where the defendant negligently compounded a hair wash of dangerous chemical ingredients, and a person using it, and for whose benefit it was bought, suffered injury, the defendant was held liable (v). (3) Quite apart from any warranty or the terms of the contract of sale, the vendor of goods which have some dangerous quality of which he knows, but of which the purchaser cannot be expected to be aware, owes a duty to the purchaser to take reasonable precautions by warning him that special care will be requisite, and for damages resulting from breach of that duty an action lies. Thus, where the defendants sold a tin of chlorinated lime, knowing that it was likely to cause danger to a person opening it unless special care was taken, and the danger was not such as would be known by the purchaser, the defendants were held liable for damage caused to the plaintiff by opening the tin without taking proper precautions, in consequence of wbich there was an explosion and her eyes were injured (w). And there is a similar duty on the part of one gratuitously lending goods to another, for breach of which, followed by (u) Dixon v. Bell, 5 M. & S. 198. (r) George v. Skivington, L. R. 5 Ex. 1. (w) Clarke v. Army and Navy Co-operative Society, [1903] I K. B. 155 [C.A.J. L.T. N 2 180 Of Negligence. Art. 83. damages, an action will lie. Note, that in these cases it is essential to show knowledge of the defect on the part of the seller or lender. A person who does not make but merely sells a thing he does not know to be dangerous may- be liable for breach of warranty to the buyer, but is not liable in tort to the buyer or to users of the thing (x). (4) A railway company kept a turntable unlocked (and therefore dangerous to children) on their land close to a public road. The railway servants knew that children were in the habit of trespassing and playing with the turntable, and took no steps to prevent them from so doing or to lock the machine so as to prevent it being dangerous. A child between four and five years of age, playing with other children on the turntable, was seriously injured. The com- pany was held liable as they should have taken precautions to prevent such an accident as was likely to happen, and did happen, to the child (?/). So if a person leaves a cart unattended in the street and boys play with it, as is their nature, and one is injured, he may have a cause of action against the owner of the cart, although the action would not have happened but for the intermeddling of himself and his companions (z). (5) A person who consigns to a common carrier is under an absolute duty not to consign to him for carriage goods which are dangerous to carry, without warning the carrier of their dangerous character, unless the carrier knows, or ought to know, the dangerous character of the goods ; and if by reason of their dangerous character the carrier or his servants are injured the consignor is liable, although he does not himself know of the dangerous character of the goods (a). (&•) Longmeid v. HoUiday,6 Ex. 761 ; Coughlin v. Gillison, [1899] 1 (.,>. B. 145 [C. A.]. (v/) Cooke v. Midland Great Western Rail. Co. of Ireland, [1909] A. C. 229. (r) Lynch v. Nurd hi, 1 Q. B. 29. (a) Bamfield v. Goole ami Sheffield Transport Co., [1910J 2 K. 15. 94 [C. A.]. Contributory Negligence. Aet. 84. — Contributory Negligence. Art - 84 - (1) Though negligence, whereby actual damage is caused, is actionable, yet if the damage would not have happened had the plaintiff himself used ordinary care, the plaintiff cannot recover from the defendant. (2) But where the plaintiff's own negligence is only remotely connected with the accident, and the defendant might by the exercise of ordinary care have avoided the accident, the plaintiff will be entitled to recover. The rule of contributory negligence is well illustrated Radley v. by the leading case of Badley v. London and North Western / ^' l "!',"!r'"' 1 J o ) 1 App. Cas. 754. See especially, />cr Lonl Penzance, at p. 7.j?>. 182 Of' Negligence. Art. 84. Statement of the rule by WlLLES, J. Illustrations. Darit'< v. Mn mi. Until rfiehl Forrester. Joint negligence of plaintiff' and defendant. through the negligence of the defendants' servants, and that if both sides were negligent so as to contribute to the accident, the plaintiffs could not recover. He ought to have told them that if they thought the engine driver might by- ordinary care have avoided all accident any previous negli- gence of the defendants would not preclude them from recovering. The law on this point was thus summarised by Willes, J.: " If both parties were equally to blame, and the accident the result of their joint negligence, the plaintiff could not be entitled to recover. If the negligence and default of the plaintiff was in any degree the proximate cause of the damage, he could not recover, however great may have been the negligence of the defendant. But that if the negligence of the plaintiff was only remotely connected with the accident, then the question was, whether the defendant might not, by the exercise of ordinary care, have avoided it " (e). (1) Therefore, where the plaintiff left his ass with its legs tied in a public road, aud the defendant drove over it, and killed it, he was held to be liable ; for he was bound to drive carefully, and circumspectly, and had he done so he might readily have avoided driving over the ass (d). (2) But where the defendant negligently and wrongfully left a pole across a highway, and the plaintiff, by riding negligently, ran against it and was hurt, it was held that as, if he had used ordinary care, he might have seen the pole and avoided it, the accident was entirely due to his own negligence, and the defendant was not liable (e). (3) But in all cases where two persons are negligent and the accident is the result of their joint negligence, neither can recover against the other. And so, in cases of collision between carriages, the question is, whether the sole effective cause of the disaster was the negligence of the defendant, or whether the plaintiff himself so far contributed to the disaster, by his own negligence, or want of common and ordinary care, that, but for his default in this respect, the 0) Tuff v. Warman, 2 C. 15. (N.S.) 740, 743; affirmed in Ex. Ch.i 5 C. B. (N.s.) 573. (/) Dairies v. Mann, 10 M. & W. 541.. 0) Butterfield v. Forrester, 11 East, 60. Contributory Neglige nth. 183 disaster would not have happened. In the former case he Art. 84. recovers, in the latter not. (4) For many years it was thought that where a person Doctrine of voluntarily engaged another person to carry him, he so identification identified himself with the carrier as to be precluded from suing a third party for negligence in cases where the carrier was guilty of contributory negligence (/). However, this doctrine was overruled by the House of Lords, in the case of The Bcrnina (g), and there is no longer any rule of law that the driver of an omnibus, or coach, or cab, or the engineer of a train, or the master of a vessel, and their respective passengers, are so far identified as to affect the latter with any liability for the former's contributory negligence (h). (5) It was decided many years ago that, where the Contributory plaintiff is a child of tender Years, it is not necessarilv ne =? n § en , ce 1 .... "in intants. a good defence to an action of negligence to prove that he himself contributed to his injury. In that case the defendant left a cart unattended in the street. The plaintiff, a boy of seven, climbed into the cart to play, another boy led on the horse, and the plaintiff fell and was hurt. If he had been a grown man it would have been a good defence that the proximate cause of the accident was his own wrongdoing — but the court held that as much care cannot be expected of a boy as of a grown person — and the act of the plaintiff, considering his age, was not such as to disentitle him from recovering (i). This case and the later authorities show that what would amount to contributory negligence in a grown-up person, may not be so in a child of tender years (k). (6) It has been held that where an infant is incapable of Persons in taking care of himself, he cannot recover if the person in char S e of 11 limit S whose charge he was, was guilty of contributory negli- (/) Tltorogood v. Bryan, 8 C. B. 115. (//) 13 App. Cas. 1. (//) Mathews v. London Street Tramways Co., 58 L. J. Q. B. 12. (/) Lynch v. Niirdin, 1 Q. B. 29. (70 Per Kelly, C.B., Lay v. Midland Rail. Co.. 34 L. T. 30. N«- also Harrold v. Watney, [1898] 2 Q. B. 320 [C. A.] ; Jewstm v. Gatti, 2 T. L. B. 441 [C. A."J ; and Cooke v. Midland Groat Western Rail. Co.. [1909] A. C. 229. 184 Of Negligence. Art. 84. gence(Z). But whether this is consistent with principle seems questionable. For the person in charge is not the agent of the child, but of its parent or guardian ; and in other respects the case of The Bcmina (m) would seem to apply. General principle Combined negligence of defendant and third party. Illustration. Art. 85. — Effective Cause. The negligence of the defendant must he an effective cause of the damage. As we have seen (n) wherever damage is a part of the cause of action, it must be shown that the damage com- plained of was the natural and probable result of the wrongful act. Illustrations will be found at pp. 18 and 19, many of which are cases of negligence. It sometimes happens that though the defendant was negligent, the real effective cause of the damage was either the negligence of the plaintiff or the negligence of a third person. The former is dealt with as one aspect of contribu- tory negligence. It is well illustrated by Butterfielcl v. Forrester (o). When the immediate cause of the damage is the interference of a third party, it does not necessarily follow that the defendant is not liable. If the defendant's negligence is an effective cause of the damage, he is liable, although the damage would not have occurred but for the interference of a stranger (p). It is, in every case, a question of fact whether the negligence of the defendant was an effective cause of the damage or merely a remote cause (q). So where the defendant had taken the plaintiff's horse under an agreement for agistment and put it into a field separated by a wire fence from a cricket field, and by the (0 Waitfi v. North Eastern Rail. Co., EL B. k E. 719 [Ex. Cb.]. {nt) Supra, p. 183. C«) Supra, Art. 5. Cc) Supra, p. 182. CyO Engelhart v. Farrant, [1897] 1 Q. B. 243. C?) McDowall v. Great Western Rail.Co., [1903] 2 E.B.331 [C. A.]. Onus of Proof. 185 negligence of the defendant's servants a gate was left open Art. 85. and the horse escaped into the cricket held, it was held to be the natural consequence that the cricketers should proceed to drive the horse back into 'the defendant's field. Whilst being so driven back the horse hurt itself against the wire fence, and the defendant was held liable, as the negligence of his servants in leaving the gate open was an effective cause of the accident (;•). Art. 86. — Onus of Proof. (1) The onus of proving negligence is on the plaintiff ; and that of proving contributory negligence on the defendant (s). (2) But where a thing is solely under the management of the defendant or his servants, and the accident is such as, in the ordinary course of events, does not happen to those having the management of such things and using proper care, the accident itself affords prima facie evi- dence of negligence (t). (1) Thus, where a horse of the defendant suddenly bolted Runaway without any explainable cause, and, swerving on to the 10ise footpath, collided with and injured the plaintiff, it was held that the plaintiff had not produced any evidence of negli- gence sufficient to entitle him to recover. For it is no negligence to drive a horse along a public street, and horses will occasionally run away without any negligence of the driver (u). (2) So, also, the mere fact of a motor omnibus skidding Skidding on a greasy road is no evidence of negligence, for it is well oninibus - (?•) llalcatrap v. (Gregory, [181)5] 1 Q. B. 561. (s) Dublin, Wioklow, etc. Rail. Co. v. Slattery.S App. Cas. 1155, at 1>. 1169. (0 Scott v. London Dock Co., :i 11. & C. 596 ; Byrne v. Boadle, 2 H. & C. 722. («) Manzoni v. Douijlax, 6 Q. 15. ]). 145. 186 Of Negligence. Art. 86. Accident capable of two explana- tions. Accident prima facie due to negligence. known that roads are often greasy and that motor omni- buses, however well constructed and designed, have a tendency to skid on slippery roads (.r). (3) So where the dead body of a man was found on the defendants' railway near to a level crossing, the man having been killed by a train which bore the usual head-lights but did not whistle, it was held, in an action by the widow, that there was no evidence of negligence on the defendants' part. For, as Lord Halsbury said, " One may surmise, and it is but surmise and not evidence, that the unfortunate man was knocked down by a passing train while on the level crossing ; but assuming in the plaintiffs favour that fact to be established, is there anything to show that the train ran over the man rather than that the man ran against the train?" (y). (4) On the other hand, where a person was walking in a public street and a barrel of flour fell upon him from a window of the defendant's house, it was held sufficient prima facie evidence of negligence to cast on the defendant the onus of proving that the accident was not attributable to his want of care. For barrels do not usually fall out of windows in the absence of want of care (z). And when a railway train was thrown off the line whereby the plaintiff (a passenger) was injured, and it appeared that the engine, the coaches and the line all belonged to the same company, it was held that there was a prima facie case of negligence, as trains do not run off the line unless there is something wrong with the line, or the train, or the running of the train (a). In short, the question must always depend on the nature of the accident. In general, where an accident may be equally susceptible of two explanations, one involving negligence, and the other not, the plaintiff must (./•) Wing v. London General Omnibus Co., [1909] 2 K. B. 652 [C. A.]. (y) Wakelin v. London and South Western Rail. Co., 12 App. Cas. 41. See also Davey v. London and South Western Hail. Co., 12 Q. 15. 1). 70 [C. A.]. (-) Byrne v. Boadle, 33 L. .1. Ex. 13; Scott v. London Book Co., 3 H. & CI 596. («) Ciirpm v. London and Brighton Co., "> Q. 15. 747. Duties of Judge and Jury. 187 give some evidence of want of care. But where the Art. 86. probability is that the accident could only have had a negligent origin, the presumption will be reversed. Art. 87. — Duties of Judge and Jury. Whether there is airy evidence to be left to the jury from which negligence causing the injury complained of may be reasonably inferred, is a question for the judge. It is for the jury to say whether, and how far, the evidence is to be believed, and whether, in fact, there was negligence which was the effective cause of the damage (b). That is to say, the judge should not leave the case to the jury merely because there is a scintilla of evidence, but should rather decide whether there is any evidence from which negligence may be reasonably inferred, and then leave it to the jury to find whether upon that evidence negligence ought to be inferred (c). Art. 88. — Volenti nonfit Injuria. (1) In an action of negligence it is a good defence that the plaintiff, with full knowledge and appreciation of the risk of danger from the defendant's negligence, voluntarily accepted tin- risk and exposed himself to the danger (7/). (7/) Metropolitan Bail. Co. v. Jacltson, 3 App. Cas. 19)?. (/•) Ibid., at p. 197. Of) Smith v. Baiter $ Sons, [1891] A. C. 325. 188 Of Negligence. Art. 88. Situations of alternative danger. (2) It is a question of fact, not of law, whether the plaintiff voluntarily incurred the risk, and the burden of proof is on the defendant (e). Note. — This rule must be applied with caution. It does not mean that whenever a person knows there is a risk of being injured by another's negligence whilst doing some- thing, he is incapable of recovering in an action if, neverthe- less, he does the thing with knowledge of that risk. If it were so, no one could ever bring an action for damages resulting from an accident to a train in which he was travelling, or even for being run over in the street. For everyone who travels by train or walks in the streets knows he runs a certain amount of risk in so doing. But if a person knowing of a p articular risk voluntarily accepts that risk and takes the risk upon himself, the rule applies. For instance, if a man seeing an express train coming along a line approaching a level crossing, chooses to cross the line in front of it, taking the chance of getting across in time, the rule would apply. Again, the rule does not apply where one person is put by another in a situation of alternative danger, that is to say, one in which he will be in danger if he sits still and in danger if he tries to escape. In such a case any injury he may sustain in taking the course which he thinks best in the circumstances, will be regarded as the consequence of his being wrongfully put in that situation and not of his own voluntary act(/). So, in an action against a coach proprietor for so negli- gently driving his coach that the plaintiff, a passenger, was obliged to jump off the coach, whereby he broke his leg, Lord Ellenbobough said: "To enable the plaintiff to sustain the action it is not necessary that he should have been thrown off the coach. It is sufficient if he was placed by the misconduct of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap (17. 190 Of Negligence. Art. Smith \ Baker. Inapplicable to breach of statutory duty. So, too, when a workman, engaged in an employment not in itself dangerous, is exposed to danger arising from an operation in another department over which he has no control, the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has volun- tarily accepted the risk (I). Moreover the defence is not available where the injury arises from breach of a statutory duty on the part of the employer for the benefit of the workman himself and others. An agreement on the part of the workman to waive the enforcement of such a duty would not be enforceable, and a workman cannot be taken to have consented to it(w). (/) Smith v. Baiter $ Sons, [1891] A. C. 325. O) Buddeley v. Earl Granville, 19 Q. B. D. 423. CANADIAN NOTES. 190a Canadian Notes to Chapter VII. of Part II. Actionable Negligence. In an action of negligence, a plaintiff, Hvhose want of care was a direct and effective contributory cause of the injury com- plained of, cannot recover, however clearly it may be established that, but for the defendant's earlier or concurrent negligence, this mishap, in which the injury was received, would not have occurred. But, although the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have con- tributed to the accident which is the subject of the action, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him. (Davies v. Mann, 10 M. & W. 546, and Radley v. London and North Western R. W. Co., 1 App. Cas. 754, followed.) Jones v. Toronto and York Radial Ry. (1911), 23 O.L.R. 331, 340. Where goods are given into the sole custody of a person and accepted by him as bailee, and they are lost while in his custody, the onus lies upon him to shew circumstances negativing negli- gence on his part. The plaintiff lent a horse to the defendant, who handed it over to another person, who used it for heavy work. The horse died three weeks after it was lent. The cause of death was not shewn. The man who worked the horse was not called as a. witness, and no evidence was given to shew how the horse was housed, fed, or cared for. Held, in an action for damages for the non-return of the horse, that the onus was upon the defendant to excuse the default; as far as the evidence shewed, the defendant was entirely in the wrong; and judgment was properly given for the plaintiff. Pratt v. Waddington (1911), 23 O.L.R. 178, D.C. In carrying out a verbal arrangement to move a boom of logs in exchange for the loan of certain boom sticks, plaintiffs lost con- trol of the boom, which was carried away in a gale. It was held that the defendants not being under any obligation to move the logs at the time they did, and having selected an inopportune time and used inadequate and deficient equipment, were guilty of negligence and must be held liable for the loss. Wattsbuirg Lumber Co. v. Cooke Lumber Co. (1911), 16 B.C.R. 154. 190a— l.t. 1. 1906 CANADIAN NOTES. The plaintiff lent or hired his horse to S., who, while on a jour- ney, put it up at defendant's inn, and it was strangled in the stable there, owing, as the jury found, to the negligence of de- fendant's servant in tying it up in the stall. It was held that the plaintiff might maintain an action therefor. Walker v. Sharpe, 31 U.C.R. 340. It is not negligence per se to leave a horse standing in a high- way unfastened and unattended; it is a question of fact for the jury or other trial tribunal whether the owner of the horse was negligent in so leaving him. A pair of quiet horses attached to a waggon laden with hay were allowed to stand on a country road unfastened, the reins being thrown on the ground, while the dri- ver attempted to adjust the load. The hay fell from the wag- gon, and the horses, being startled, ran away, overtook the plain- tiffs, who were driving along the highway in a buggy, and injured them. The trial Judge found that the driver was not negligent, and a Divisional Court affirmed his finding. Ryan v. Mcintosh, 20 O.L.R. 31. A solicitor advising his client according to the established jur- isprudence of the court in which proceedings are taken is not guilty of actionable negligence, although the decision upon which he relied in giving the advice may be subsequently overruled. Taylor v. Robertson, 31 S.C.R. 615. In actions for damages in respect of an accident against the appellant gas company it appeared that the appellants were not occupiers of the premises on which the accident had occurred and had no contractual relations with the plaintiffs, but that they had installed a machine on the said premises, and the jury found that the accident was caused by an explosion resulting from gas emit- ted, owing to the appellants' negligence, through its safety valve direct into the closed premises instead of into the open air. It was held that the initial negligence having been found against the appellants in respect of an easy and reasonable precaution which they were bound to have taken, they were liable unless they could show that the true cause of the accident was the act of a subsequent conscious volition, e.g., the tampering with the mach- ine by third parties. Dominion Natural 'Gas Co. v. Collins. [1909] A.C. 640. CANADIAN NOTES. 190c Neglect of Duty to Licensee. Where a trail or way over a railway track is used by the pub- lie by invitation or license of the railway company, a person crossing the track upon the same is bound to observe reasonable precautions to avoid injury by trains; and where the evidence shows that he has not done so, he cannot recover from the com- pany for such injuries without proving that they were immedi- ately caused by the negligence of the company's servants only 'Quaere, whether the failure of the person in charge of a locomo- tive to ring a bell or sound a whistle or observe other precautions on approaching such a crossing constitutes actionable negligence. (Weir v. C.P.R. (1889), 16 A.R. 100, followed.) Royle v. The Canadian Northern Railway Co., 14 Man. R. 275. If the injured party was a mere licensee, who entered the car not as a passenger, but for the purpose of plying his trade there, and whose presence was simply tolerated, he would have no right to complaan because the safety of the car was not improved by the addition of a step. Blackmore v. Toronto Street Railway Co., 38 U.C.R, 216. The plaintiff's son was given leave by a yardmaster of the defendants to learn in the railway yards the duties of car-checker, with the expectation that if he became competent he would be taken into the employment of the defendants in that capacity, and he was free to devote as much or as little time to acquiring the necessary knowledge as he sajw fit. While he was in the rail- way yard a few days after this permission had been given he was killed by an engine of the defendants which was running through the railway yard without the bell being rung though the rules of the defendants required this to be done : — field, that the deceased was a licensee and not a trespasser; that the defendants were bound to exercise reasonable care for his protection ; and that the omission to give the warning was negligence which ma-le them liable in damages for his death. The Court being of opinion, how- ever, that damages of $3,000 allowed by the jury were excessive, ordered that there should be a new trial unless the plaintiff should consent to accept $1,500. Collier v. Michigan Central Railway Company, 27 Ont. App. 630. 190d CANADIAN NOTES. The owner of a building in course of construction owes to those whom he invites into or upon it the duty of using reasonable care and skill in order to have the property and appliances upon it intended for use in the work fit for the purposes they are to be put ta Such duty is not discharged by the employment of a competent architect to prepare plans for the building and a com- petent contractor to attend to the work of construction ; but the fact that the building is in an unfinished state may render the obligation of the owner towards a workman employed upon it less onerous in law than it would be in the case of a completed struc- ture. (Judgment of the Court of Appeal, 12 Ont. L.R. 4, and of the Divisional Court, 9 Ont. L.R. 57, affirmed.) Valiquette v. Fraser, 39 Can. S.C.R. 1. The owners of a rink were held liable in damages for negli- gence in respect of injuries sustained by the plaintiff, who paid for a seat in the rink to see a hockey match, and who was injured by reason of the breaking of the railing of the gallery, in which he was seated — the railing not being so constructed as to resist the outward pressure of the spectators leaning forward to see what was going on below, which was to be expected and should have been guarded against. The defendants were not absolved because they had employed a competent architect. Stewart v. Cobalt Curling and Skating Association, 19 O.L.R. 667. Onus op Proof. Although, by sec. 18 of the Motor Vehicles Act, 6 Edw. VII. (Ont.), chl. 46, as amended by 8 Edw. VII. ch. 53, sec. 7, when any loss or damage is sustained by any person by reason of a motor vehicle on the highway the onus of proof that the loss or damage did not arise through the negligence of the owner or driver of the motor vehicle is on the owner or driver, yet the person injured or his representative must establish that the dam- age was sustained by reason of the motor vehicle. Marshall v. Gowans (1911), 24 O.L.R. 522, C.A. In an action to recover damages for death caused by alleged negligence, the onus is on the plaintiff to prove not only that the defendant was guilty of actionable negligence, but also, either CANADIAN NOTES. 190« directly or by reasonable inference, that such negligence was the cause of the death. Where, therefore, a man employed on the defendant's tug was drowned, and it was shown that wood hajd been piled upon the tug's deck in such a way as to make it dan- gerous to pass along the deck, but it was also shown that there was a safe pasage-way on a scow lashed to the tug, and there was no evidence whatever as to the cause of the accident, the action was dismissed. Young v. Owen Sound Dredge Company, 27 O.A.R. 649. Defendant on a day when a very high wind was blowing, in- structed his servants to burn off a piece of stubble, which instruc- tions were given at a time when stubble might be burned under the provisions of the Ordinance if the prescribed precautions were taken. The evidence showed that the defendant sent three adult men to set the fire and that they were on the stubble dur- ing the continuance thereof, but not dn the immediate vicinity of the fire, being engaged in setting fire across the field while that already set was burning down along the side. These men had the necessary appliances for extinguishing fire. In some manner the plaintiff's pasture became ignited and was damaged. There was no positive evidence that the fire actually crossed the road, between the defendant's land and the pasture, but no other explanation was gfiven as to the origin of the fire. In an action for damages, it. was held that no other probable cause of the fire in plaintiff's pasture being proved and the fire in the defendant's field being a probable cause which was supported by the circum- stances, it must be held that the fire from|the defendant's field spread to the plaintiff's pasture. Armour v. Marshall, 3 Sask. R. 394. Evidence which merely supports a theory propounded as to the probable cause of injuries received through an unexplained acci- dent is insufficient to support a verdict for damages where there is no direct fault or negligence proved against the defendant and the actual cause of the accident is purely a matter of speculation or conjecture. Canada Paint Co. v. Trainor, 28 Can. S.C.R. 352 ; Forwood v. City of Toronto, 22 O.R. 351 ; Shoebrink v. Canada Atlantic R. W. Co., 16 O.R. 515 ; Kerwin v. Canadian Coloured Cotton Co., 28 O.R. 73 ; Gilmour v. Bay of Quinte Bridge Co., 20 O.A.R. 281 ; Shannahan v. Ryan, 20 N.S.R. 142. 190/ CANADIAN NOTES. Where on the trial of an action based on negligence, questions are submitted to the jury, they should be asked specifically to find what was the negligence of the defendants which caused the injury. General findings of negligence will not support a ver- dict unless the same is shown to be the direct cause of the injury. Mader v. Halifax Electric Co., 37 Can. S.C.R. 94. A bailee for hire who returns the property bailed in a damaged condition, and who, being the only person with full knowledge of the circumstances causing the damage, fails to give any explana- tion of the same, is presumed to have been negligent. This applies to the hirer of a horse and carriage from a livery stable keeper. Gremley v. Stubbs, 39 N.B.R. 21. Contributory Negligence. In an action founded on personal injuries caused by a street car the jury found that defendant's negligence was the cause of the accident, and also that plaintiff had been negligent in not looking out for the cars. It was held, reversing the judgment of the Court of Appeal, Brown v. London Ry., (2 O.L.R. 53), that as the charge to the jury had properly explained the law as to contributory negligence, the latter finding must be considered to mean that the accident would not have occurred but for the plain- tiff's own negligence and he could not recover. London Street Railway Co. v. Brown, 31 Can. S.C.R. 642. Though the plaintiff may have been guilty of negligence, and though that negligence may, in fact, have contributed to the acci- dent, yet, if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him. Jones v. Toronto and York Radial Ry. (1911), 23 O.L.R. 331, 336. The deceased and a number of other purchasers of sand and gravel from a pit owner and operated by the defendants were loading sand in an excavation underneath the frozen crust two feet thick. Ten or fifteen minutes before the accident a man em- ployed by the defendants for that purpose warned all those work- ing in the pit that the crust was cracking. The others withdrew in time, but the deceased thought he could complete his loading CANADIAN NOTES. 190^ before the crust caved in, took the risk and was killed in conse- quence of the crust falling upon him. It was held that, although it was the defendants' duty to break down the crust as soon as it became dangerous to their customers, yet the maxim "volenti non fit injuria" applied in tins case, and the defendants were not liable in damages for the death of the deceased. Roy v. Hen- derson, 18 Man. R. 234. The maxim volenti non fit injuria does not apply whfere an accident is caused by the breach of a statutory duty. Rodgers v. Hamilton Cotton Co., 23 O.R. 425. Duty op /Railway Company to the Public. The provisions of the Railway Act which require the railway company to blow the whistle or ring the bell when I approaching a highway which it crosses apply only to persons travelling upon the highway so intersected upon the same level, and meeting with injury by actual collision, and not to persons passing over a bridge above the railway or upon the highway at a distance from the intersection, to whom the railway owes no duty. Lemay v. Candaian Pacific R.W. Co., 17 O.A.R. 300, nor does the statutory obligation upon the railway company approaching and passing over level railway crossings from the exercise of ordinary care. Miller v. Grand Trunk R. W. Co., 25 U.C.C.P. 389. A traveller on approaching a railway crossing is bound to use such faculties of sight and hearing as he may be possessed of, and when he knows he is approaching a crossing and the line is in view, and there is nothing to prevent him from seeing and hear- ing a train if he looks for it, he ought not to cross the track in front of it without looking, merely because the warning required by law has not been given. Weir v. The Canadian Pacific R. W. Co., 16 O.A.R. 100. Special circumstances may call for other precautions in addi- tion to those prescribed by statute, as to ringing the bell or blow- ing the whistle as a warning, and what those additional precau- tions are, is, in each case a question of fact for he jury. (Lake Erie and Detroit River R. W. Co. v. Barclay, 30 S.C.R. 360, fol- lowed.) Moyer v. Grand Trunk R, W. Co., 3 Can. Ry. Cas 1 (C.A.). 190/t CANADIAN NOTES. Put the case of a man standing on the track with his back towards an approaching car, and for some reason unconscious of its approach, or the case of a drunken man staggering alongside the track, the negligence of the man would not warrant his being run down, when he was seen or ought to have been seen by the motorman, whose duty it is to be on the lookout. His want of care may have made him liable to the injury, but would not have occasioned the injury. Jones v. Toronto and York Radial Ry. (1911), 23 O.L.R. 331, 337. Persons lawfully using a highway are entitled to assume that the statutory warning will be given by a train crossing the high- way, and are not necessarily guilty of contributory negligence because, while driving a restive horse, they approach, in the absence of warning, so close to the crossing as to be unable to con- trol the horse when the train crosses, and are injured, even though by looking or listening they probably would have learned of the approach of the train in time to stop far enough away to be in safety. The question of contributory negligence in such a, 'ease is for the jury to determine under all the circumstances of the case. (Morrow v. Canadian Pacific R. W. Co. (1894), 21 A.R. 149, followed.) Vallee v. Grand Trunk R, W. Co., 1 O.L. R. 224 (C.A.). TJhe defence that the plaintiff should have looked out for the train is one ) Tubervil v. Stamp, 1 Salk. 13. (p~) Vauqhaii v. Menlove, 3 Bing. N. C. 468 ; Filliter v. Phippard, 11 Q. B. 347. (•) Jones v. Festiniog Rail. Co. L. R. 3 Q. B. 733 ; Powell v. Fall, 5 Q. B. D. 597 [C. A.] ; Smith v. London and South Western Rail. Co., L. R. 6 C. P. 14 [Ex. Ch.]. 0) Filliter v. Phippard, 11 Q. B. 347 ; and see Black v. Christ- church Finance Co., [1894] A. C. 48 [P. C.]. (0 Jones v. Festiniog Rail. Co. L. R. 3 Q. B. 733 ; Powell v. Fall, 5 Q. B. D. 597. 202 Liability for Breach of Duty, etc. Art. 91. negligence (u). But they are liable if they cause fires by their negligence (x). Railway By the Railway Fires Act, 1905 (y), railway companies 1905* Act ' are made responsible for damage done to agricultural land or agricultural crops by fire arising from sparks from loco- motive engines, notwithstanding that the engine is used with statutory authority, provided the claim for damage does not exceed £100. Eailway companies are by the same Act given powers of entering on land for the purpose of extinguishing or arresting fire, and of doing certain things to diminish the risk of fire. (?0 Yaughan v. Taff Yale Rail. Co., 5 H. & N. 679 [Ex. Ch.]. (a?) Smith v. London and South Western Mail. Co., L. R. 6 C. P. 14 [Ex. Ch.]. (y) 5 Edw. 7, c. 11. CANADIAN NOTES. 202tt Canadian Notes to Chapter VIII. op Part II. Negligence as to Fire-ak.ms. It is not error to tell the jury that the fact that the danger to the public of an air-gun or ammunition being in the hands of a minor under the age of sixteen was deemed by Parliament of so serious a character as to render it' proper that it should be made a criminal offence to sell or give either the air-gun or ammuni- tion for it to such a minor, (Cr. Code, 119), was a factor they might take into account in determining whether the sellers were guilty of negligence. Fowell v. Grafton (1910), 22 O.L.R. 554. Meredith, C.J., said:— "I do not see why this fact was not one to be taken into account in the same way as evidence for the pur- pose of proving that a piece of machinery is dangerous to those using or employed about it, and that the proper means to guard against that danger as far as it was practicable to do so had not been adopted. If authority is needed for this proposition, it may be found in Blamires v. Lancashire and Yorkshire R. W. Co., (1873), L.R. 8 Ex. 283." Negligence as to Electricity. An electrician engaged with defendants as manager of their electric lighting plant and undertook to put it in proper working order, the defendants placing him in a position to obtain all necessary materials for that purpose. About three months after he had been placed in charge of the works he was killed by com- ing in contact with an incandescent lamp socket in the power house, which had been there during the whole of the time he was in charge, but at the time of the accident was apparently insuffi- ciently insulated: — Held, that there was no breach of duty on the part of the defendants towards deceased, who had undertaken to remedy the very defects that had caused his death, and the failure to discover them must be attributed to him. The judg- ment appealed from, 14 Man. R. 74, ordering a new trial, was affirmed, but for reasons different from those stated in the Court below. Davidson v. Stuart, 34 Can. S.C.R, 215. 202a— l.t. 1. 2026 CANADIAN NOTES. The defendant company's workmen while straightening a pole to which a guy wire was attached, cut the wire, allowing it to hang loose, and, either by these workmen, or some third party, as to which there was no evidence, it was thrown across a power wire so as to become a live wire, whereby the plaintiffs coming in contact therewith were injured :— Held, that the original negli- gence of the workmen of the defendant company was an effective cause of the injury to the plaintiffs and that the defendant com- pany were liable therefor. Labombarde v. Chatham Gas Co., 10 O.L.R. 446 (Anglin, J.). A municipal corporation is not bound to undertake such works as supplying electric power for light or any other purpose; but if it does, it must assume towards its customers and others the same obligation as to the exercise of care as is applicable to a private company or individual so contracting. Young v. Graven- hurst (1911), 24 O.L.R. 467. It is no excuse to say that the system is old, or that funds were lacking for proper maintenance. There was always the alterna- tive of ceasing to operate a system which, from any cause, had become dangerous, or, at the very least, of notifying the customer, so that he might judge whether to continue and take the risk, or discontinue and suffer the inconvenience. But, so long as the system was continued and in the absence of such notice, the municipality supplying electric lighting to customers and charg- ing for same, were bound, having regard to the extremely dan- gerous nature of the article which they were supplying, to exer- cise a degree of care and skill commensurate with the danger. Young v. Gravenhurst (1911), 24 O.L.R. 467 ; Royal Electric Co. v. Heve, 32 S.C.R. 462. Negligence in the Control of Fire. Negligence may be defined as the absence of that care which a prudent man would observe under the circumstances. Armour v. Marshall (1910), 3 Sask. R. 394, 399; 15 W.L.R. 173. Chief Justice Wetmore in Kennerman v. The Canadian Northern Rail- way Company, 3 Sask. R. 74, said: — "What constitutes such care must vary according to circumstances. In this country (Sas- CANADIAN NOTES. 20 2c katchewan) whore prairie fires are at certain seasons of the year so devastating and serious in their consequences by reason of the facilities given by the dry grasses to enable them to spread rap- idly, especial care ought to be used by the ordinary man in start- ing such fires at such a season to prevent them from running at large. . . . One thing a person starting such a fire at such a season ought to be especially careful about is not to start it when tin' conditions are of such a character as to make it diffi- cult to prevent its going at large, as, for instance, when a high wind is prevailing which would have the effect of driving the fire if it got away right into the wide prairie. I hold that a person starting a fire under such circumstances is not exercising the care that a reasonable man would ordinarily exercise." See also to same effect, Owen v. Dingwald, 3 Sask. R. 328. Where the defendant while harvesting in his own field, threw upon the ground a lighted match thinking he had extinguished it, which, however, set fire to combustible material, and the defendant, on afterwards discovering it, though he could easily have put it out, after confining it to one spot, left it, anticipat- ing no danger, and after burning for four or five days, the fire spread to the plaintiff's premises and destroyed his barn, the Court considered that the principle and doctrine established in Fletcher v. Rylands applied, and that the defendant was liable for the damage sustained by the plaintiff, even in the absence of actual negligence. Furlong v. Carroll, 7 O.A.R. 145. Where a person uses fire in his field in a customary way for the purposes of agriculture or other industrial purposes, he is not liable for damages arising from the escape of the fire to other lands, unless the escape is due to his negligence. Owens v. Bur- gess, 11 Man. R. 75 ; Booth v. Moffatt, 11 Man. R. 25 ; Chaz v. Cistoreiens Reformes, 12 Man. R. 330; Beaton v. Springer, 24 O. A.R. 297; Dean v. McCarty, 2 U.C.Q.B. 448; Gillson v. North Grey Ry. Co., 35 U.C.Q.B. 475. Although a farmer has a right to set fire to straw and refuse on his own land, still by so doing he is using his land other than in the natural "way, and if such fire from any cause escape and cause damage to a neighbour, the farmer is liable for such dam- age. Patree v. Kincaid, 3 Terr. L.R. 395. 202(1 CANADIAN NOTES. The defendants were threshing for the plaintiffs upon the plain- tiffs' farm, when the wind changed and increased in velocity, and sparks, escaping from the defendants' engine, set fire to the plain- tiffs ' buildings, hay, and grain : — Held, that the defendants were liable for the plaintiffs' loss, by reason of their (the defendants') negligence in continuing to thresh after the change in the direc- tion and velocity of the wind, which obviously endangered the plaintiffs' property. Spratt v. Dial, 15 W.L.R, 185 (Man.). Plaintiff's buildings and other property were destroyed by a prairie fire alleged to have spread from the ashes of a stack of straw burned by the defendant. The evidence showed that before the stack was fired a guard of about 40 yards in width was burned around it, and there was also a fire guard three furrows in width about 300 yards to the west. The prairie fire did not occur until four days later, on which a high wind was blowing and indications pointed to the remains of the straw stack as the origin of the fire. It was held that in view of the climatic con- ditions prevailing in Saskatchewan, a man bringing fire upon his land must exercise the greatest caution, and under those condi- tions precautions must be taken to prevent the fire spreading until such time as it is absolutely extinguished, and the defendant, having failed to take such care, was liable to the plaintiff in dam- ages. That if a person does not properly watch a fire started by him and see that it does not get away, and it escapes, he thereby "permits" it to escape within the meaning of s. 2 of the Prairie Fire Ordinance (c. 87, CO. 1898). Roberts v. Morrow, 2 Sask. R, 15. See also Clark v. Ward, 13 W.L.R. 83, 2 Alta. R. 459, affirming 2 Alta R. 101. In an action against a railway company, carrying on business under legislative sanction, to recover damages resulting from a fire alleged to have been caused by a spark from an engine, the plaintiff must, in addition to giving evidence from which it may reasonably be inferred that the fire :was caused as alleged, also give some evidence of negligence on the part of the defendants, e.g., in the construction or management, or want of repair, of the engine, and the onus is not upon the defendants to prove that they have adopted and used with due care reasonable contrivances to avoid the danger of fire. Oatman v. Michigan Central Rail- way Co.. 1 O.L.R. 145 (C.A.). CANADIAN NOTES. 202e Defendant was the owner of a threshing machine and a port- able steam engine, and hired from the plaintiff a team of horses with a driver for use in moving the engine about and in drpwing straw and grain during the work of threshing. While threshing for a certain farmer, sparks from the engine set fire to a stack of grain, and, the separator being thereby placed in danger, the plaintiff's driver attached his horses to it for the purpose of haul- ing it into a place of safety; but the fire spread so rapidly and unexpectedly before the separator could be moved or the horses detached that they were severely burned and had to be killed. The County Court Judge, who tried the case without a jury, found that the fire had been caused by negligence on the part of the defendant's servants, also that the horses had been attached to the separator either in obedience to a call from the defendant's foreman or under his personal supervision, and that there was no negligence on the part of the plaintiff's driver. It was held, on appeal (1) that the evidence fully warranted the finding of negli- gence and, unless the plaintiff's driver was guilty of contributory negligence, the defendant was responsible for the loss of the horses. (2) That the driver was not guilty of contributory negli- gence in exposing the horses to danger, as it was not obvious and he had acted on the orders of the defendant's foreman or in obedience to a natural impulse to try to save the defendant's pro- perty. (Connell v. Prescott (1892), 20 A.R. 49, 22 S.C.R. 147, followed.) Thorn v. James, 14 Man. R. 373. Trespassers and Licensees. The deceased had been employed during the previous season and had been engaged for the next season as engineer of another steamer laid up alongside the one in which his dead body was found, and which he would have to cross to reach the steamer on which he had been employed. He had apparently, in attempting to cross, fallen from the main deck through the hatch, which had been left open and unprotected. No one saw him fall ; and the exact cause of death was not proved ; but no suggestion of any cause other than a fall was made. In ,an action to recover dam- ages for his death it was held that the jury were justified in 202a— l.t. 2. 202/ CANADIAN NOTES. finding that it was clue to the fall. (Me Arthur v. Dominion Cartridge Co., [1905] A.C. 72, followed). But it was also held that the deceased was not upon the steamer in the course of his employment, nor was he to be regarded as a licensee; and he was, therefore, a trespasser, and the defendants owed him no duty, and were not liable to the plaintiff for negligence in leav- ing the hatch open and unprotected. (Lowery v. Walker. [19111 A.C. 10, distinguished; Grand Trunk R.W. Co. v. Barnett, [1911] A.C. 361, followed). Judgment of Clute, J., in favour of the plaintiff, upon the findings of a jury, reversed by -the Divisional Court, King v. Northern Navigation Co., 21 O.L.R. 643. As pointed out by Riddell, J., in King v. Northern Naviga- tion Co. (1911) 24 O.L.R. 643, there are circumstances under which the owner of property cannot treat another person as a trespasser, even if there be no express invitation or permission. Lowery v. Walker, [1911] A.C. 10, is an extreme instance of such a case. There the defendant put into his field a horse which, to his knowledge, would bite human beings. T,he public had for years, to the knowledge of the defendant, habitually crossed the field — the plaintiff crossing the field was injured by the horse. Judgment was given for the plaintiff upon the ground that "it is clear that the plaintiff was lawfully in the place wfliere the injury happened to him:" per Lord Atkinson, [1911] A.C. at p. 14. The House of Lords did not decide in Lowery v. Walker that a trespasser has rights against the occupier of which no lawyer had ever heard before, but that, notwithstanding the far from apt terms in which the County Court Judge expressed his find- ing, what he did find as being the fact was that the plaintiff was not a trespasser but a licensee: 27 Law Quarterly Review, pp. 273, 274 (July, 1911). ( 203 ) CHAPTER IX. LIABILITY OF EMPLOYERS FOR INJURIES TO THEIR SERVANTS AND WORKMEN. SECTION I.— COMMON LAW LIABILITY. We have seen (ante, Art. 27) that generally a master is liable for the negligence of his servants committed in the course of their employment ; but the liability of a master to his servant for an injury resulting from the negligence of a fellow- servant, differs materially from his liability to a third party for a similar injury, by reason of the common law rule that a master is not so liable where the injurer and the injured are the servants of a common master in a common employment, and the injury was inflicted in the course of that employment. This rule, known as the doctrine of common employment, Common was founded on the idea that the servant takes all the employment, risks incident to his employment as part of the contract of service. With regard to servants generally it still exists, but with regard to certain classes of servants Parliament has of late years made large exceptions to it (1) by the Employers' Liability Act, 1880, and (2) by the Workmen's Compensation Act, 1906. The Employers' Liability Act, Employers' 1880, does not abolish the doctrine of common employment, ^ y but it gives a remedy by action for damages in certain specific cases to servants who are injured by the negligence of their fellow-servants in the course of their employment. The Workmen's Compensation Act does not abolish the Workmen's doctrine of common employment or repeal the Employers' ti ° m ^ 1 t Sa " Liability Act, but it gives to all servants to whom it applies a statutory right to be compensated by their masters for accidents suffered by them in the course of and arising out of their employment, whether such accidents are caused 204 Liability of Employers for Injuries to Servants. by the negligence of a fellow-servant or not. In other words, it gives to servants to whom it applies a right to compensation quite independent of any tort whatever. Its consideration, therefore, does not fall strictly within the scope of this work. But the importance of the subject is such that the student may reasonably expect to find some account of the Act and its main provisions. Art. 9^5. — The Doctrine of Common Employment. (1) A master is not liable to his servant for damage resulting from the negligence or unskil- fulness of his fellow-servant in the course of their common employment. (2) The doctrine only applies when there is both a common master and common employment under that master. (3) Common employment does not necessarily imply that both servants should be engaged in the same or even similar acts, or in the same grade of employment, so long as the risk of injury from the one is so much a natural and necessary consequence of the employment which the other accepts, that it must be included in the risks which must be contemplated as incident thereto (a). (4) A master who is personally negligent is liable to his servant for damage resulting from such negligence ; and such negligence may consist in — (a) employing another servant knowing him to be incompetent or without making proper inquiries as to his competence (b) ; (a) Morgan v. Vale of Neath Rail. Co., L. R. 1 Q. B. 149 [Ex.Ch.] ; Allen v. New Gas Co., 1 Ex. D. 251. (b) Tarrant v. Webb, 18 C. B. 797. The Doctrine of Common Employment. 205 (b) retaining in his employment a servant Art - 92 - whom he knows to be habitually negligent (c) ; (c) allowing the premises, plant or machinery to be in a dangerous condition, when he knew or might have known they were dangerous (77) ; (d) breach of an absolute unqualified duty imposed upon the employer by statute to do something for the protection of workmen (e). The rule was first established in Priestley v. Fowler (f). Explanation In that case a butcher's man was ordered to deliver meat from a van. The van was overloaded by the negligence of a fellow-servant, in consequence of which it broke down and the butcher's man was hurt. The master was held not liable. It was further established in Hutchinson v. York, New- castle and Berwick Bail. Co. (g), in which it was held that where a servant of a railway company in discharge of his duty as such was proceeding in a train under the guidance of other servants of the company, through whose negligence a collision took place, and he was killed, his personal repre- sentatives had no cause of action. The foundation of the doctrine is "that, under the circumstances, the injured person must be taken to have accepted the risks involved by putting himself in juxtaposition with other persons employed by the same employer, whose presence is incidental to the occupation in which he is engaged, and cannot complain of that which is a necessary or reasonable incident of the situation in which he has voluntarily placed himself "(h). O) See Senior v. Ward, 28 L. J. Q. B. 139. (d) Williams v. Birmingham Battery, etc. Co., [1899] 2 Q.B. 338 [C.A.]. (<>) Groves v. Lord Wimborne, [1898J 2 Q. B. 402 [C. A.]. See Watkins v. Naval Colliery Co., [1911] 2 K. B. 162 [C. A.J. (/) (1837), 3 M. & W. 1. (;/) (1830), 5 Ex. 343. (//) Per Collins, M.K., in Burr v. Theatre Royal, Drunj Lane, Limited, [1907] 1 K. B. 544 [C. A.], at p. 554. 206 Liability of Employers for Injuries to Servants. Art. 92. Illustrations. Common employment. (1) 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 the miners working therein, and the miners themselves ; all these are fellow-servants within the meaning of the doctrine (i) ; and so are the captain of a ship and the sailors employed under him (j) ; and the scene-shifter and the chorus girl engaged to sing in a pantomime (k). (2) In Morgan v. Vale of Neath Bail. Co. (I), the plaintiff was in the employ of a railway company as a carpenter, to do any carpenter's work for the general purposes of the company. He was standing on a scaffolding at wort 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 injured. It was held, however, that he could not recover against the company ; on the ground, that when- ever 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 injury from the carelessness of those managing that traffic is one of the risks necessarily and naturally incident to that employment. (3) Where a workman was, after his day's work was done, going home in a train which the colliery company ran voluntarily for the convenience of the colliers and was killed by the negligence of a servant of the company employed in mending a bridge, it was held that the collier and the other were in common employment, though the accident happened whilst the deceased was not being actually employed, as he must be deemed to have under- taken the risk of such an accident (m). (i) Barton's Hill Coal Co. v. Beid, 4 Jur. (N.S.) 767 [H. L.]. (./) Hedley v. Prnkney & Sons Steamsh ip Co., [1892] 1 Q. B. 58 [C. A.]. (A-) Burr v. Theatre Royal, Drury Lane, Limited, [1U07J 1 K. B. 544. (0 L. R. 1 Q. B. 149 [Ex. Ch.]. (m) Coldrieh v. Partridge, Jones ,)'• Co., [1909] 1 K. B. 530 [C. A.]. The Doctrine of Common Employment. 207 (4) But when a collision occurred between two steam- Art. 9 2. ships belonging to the same owners, it was held that the Common crew of ship A. were not in common employment with the master but crew of ship B. (although employed by the same masters), ^JSS. so as to protect the owners from liability to the crew of ship A. for the negligence of their servants, the crew of ship B. (n). (5) Where one of two railway companies has the user of Common the other's station, but not the control of its servants ^^aT^ employed on such station, one of whom is injured by the common negligence of a servant of the company having such right of master - user, the rule does not apply, for the men though in common employment are not in the employment of a common master (o). (6) And so the rule does not apply where one servant is the servant of a contractor, and the other is the servant of the person who employs the contractor, for the servant of the contractor is not the servant of the contractor's employer ; or where the person injured is a servant of one contractor, and the person by whose negligence he is injured is the servant of another contractor (£>). (7) Whilst a workman was in the course of his employ- Personal ment descending from an elevated tramway belonging to Jf^JJjJJf his employers his foot slipped and he fell to the ground and received injuries. His employers had provided no ladder or other safe means of descending from the tramway. In an action brought against the employers it was proved that it was dangerous to descend without a ladder, and that the employers knew this, and knew there was no ladder. On this it was held they were liable for personal negligence. If proper appliances had been provided and they had got out of order without the knowledge of the employers they would not have been liable (q). («) The Petrel, [1893] P. 320. (<0 War burton v. Great Wester?), Rail. Co., L. R. 2 Ex. 30 ; Swainson v. North Eastern Bail. Co., 3 Ex. D. 341 f C. A.]. (p) Johnson v. Lindsay, [1891] A. C. 371. (q) Williams v. Birmingham Batter]] and Metal Co., [1899] 2 Q. B. 338 [C. A.]. 208 Liability of Employers foe Injuries to Servants. Art. 92. (8) A workman was injured in consequence of a breach by his employer of the statutory duty to maintain fencing for dangerous machinery, imposed by the Factory and Workshop Act, 1878. For the breach of this absolute duty he had a right of action, and it was no defence that the defect in the fence was due to the negligence of a fellow workman (r). Art. 93. — Volunteer Servants. If a stranger invited by a servant to assist him in his work, or who volunteers to assist hirn in his work, is, while giving such assistance, injured by the negligence of another servant of the same master, the doctrine of common employment applies, and no action will lie at common law against the master. Explanation. The reason of this rule is obvious, for the volunteer, by aiding the servant, is simply of his own accord placing himself in the position of a servant, and that without the consent or request of the master. He has taken upon himself the risk of the common employment, and he cannot impose on the master a greater liability than that in which the master stands towards his own servants. Thus, where the servants of a railway company were turning a truck on a turntable, and a person not in the employ of the company volunteered to assist them, and, whilst so engaged, other servants of the company negligently propelled a locomotive against, and so killed, the volunteer, it was held that the company was not liable (s). Exception. Where a person aids the servants of another, with such other's consent or acquiescence, and not as a mere volunteer, («■) Groves v. Lord Wimborne, [1898] 2 Q. B. 402 [C. A.]. 0) Degg v. Midland Rail. Co., 1 H. & N. 773 ; Pottery. Faulkner, 1 B.&S.800 [Ex.Ch.]. Employers' Liability Act, 1880. 209 but for the purpose of expediting some business of his own, Art. 93. he is not considered to be in a position of a servant pro tempore (t). SECTION II.— THE EMPLOYERS' LIABILITY ACT, 1880 (n). Art. 94. — Epitome of Act. (1) In the case of railway servants, labourers, husbandmen, journeymen, artificers, handicrafts- men, miners, and other persons engaged in manual labour and not being domestic or menial servants, an employer cannot set up the defence of common employment in any case where the injury complained of is due to any of the following causes, viz. : (a) A defect in the condition of the ways, works, machinery, or plant which arose from, or had not been discovered, or remedied owing to the negligence of the employer, or of some person entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition. (b) The negligence in the exercise of superin- tendence of any person in the service of the employer whose sole or principal duty is superintendence, and who is not ordinarily engaged in manual labour. (c) The negligence of a person in the employ- ment of the master to whose orders or (0 Wright v. London and North Western Rail Co., 1 Q. B. D. 252 [C. A.]. O) 43 & 44 Vict. c. 42. 210 Liability of Employers for Injuries to Servants, Artj)4. directions the servant at the time of the injury was bound to conform and did conform. (d) An act or omission of any person in the service of the employer done or made in obedience to the rules or byelaws of the employer (not approved by a Government department), or in obedi- ence to particular instructions given by any person delegated with the authority of the employer. (e) The negligence of any person in the service of the employer having the charge or control of any signal-points, locomo- tive-engine, or train upon a railway. (2) The injured servant, or his representatives, must give notice of his claim to the employer within six weeks of the accident, unless, in case of death, the judge thinks there was reasonable excuse for not giving it. (3) The action must be commenced by the injured servant within six months, or by his personal representatives (if he is killed) within twelve months. (4) The action must be brought in the County Court, but is removable, under very exceptional circumstances, to the High Court. (5) The damages are limited to three years* average earnings. (6) The action is an action for negligence, and any defence available at common law (except that of common employment) is good (x) r as, for instance, contributory negligence (y) r O) Per Smith, J., in Weblin v. Ballard, 17 Q. B. D. 122, at p. 125. (y) Stuart v. Evans, 31 W. R. 706. Workmen's Compensation Act, 190G. 211 volenti non fit injuria («), or that the workman Art^94. has contracted himself out of the Act (b). It will be perceived that this Act applies only to a limited Class °} . i mi , . . servants to class of employees. Thus, a grocer s assistant is not a w hich the person engaged in manual labour within the meaning of Act applies, the Act (c) ; nor is the driver of a tramcar (d) ; nor an omnibus conductor (e). And it only applies to accidents happening by reason of negligence of the specific kinds enumerated in the Act. It does not abolish the doctrine of common employment generally, nor on the other hand does it give an injured servant a right of action unless he can prove negligence on the part of the master or some fellow servant of the kind specified. SECTION III.— THE WOEKMEN'S COMPENSATION ACT, 1906. The Workmen's Compensation Act, 1897, created a new kind of liability by making a master liable to pay compen- sation at a fixed rate to his servant if he was incapacitated by accident happening to him in the course of his employ- ment, and to those dependent on the servant if he was killed by such accident. The Act of 1897 was somewhat limited in its application. It was extended by the Act of 1900 ; and in 1906 both those Acts were repealed and the present Act was substituted for them. That Act again extended the application of the earlier Act, whilst preserving its main principles. It must be kept in mind that liability to pay compensation arises independently of any neglect or ivrongful act on the (a) Thomas v. Quarter maine, 18 Q. B. D. 685 [C. A], See Yar- mouth v. Franc/', auto, p. 189. (V) Griffiths v. Karl of Dudley, 9 Q. B. 1). 357. (c) Bound v. Lawrence, [1892] 1 Q. B. 226 [C. A.]. (7/) Cook v. North Metropolitan Tramways Co., IS Q. B. D. 683. (>) Morgan v. London General Omnibus Co., 13 Q. B. D. 832 [C. A.]. 212 Liability of Employers for Injuries to Servants. part of the master or his servants. And, strictly speaking, its consideration does not belong to the law of torts at all. The liability to pay compensation is not one arising out of tort, but is an incident attached by statute to the relation of master and servant. Moreover, the amount payable is fixed by a scale, and depends not on the amount of suffering caused to the workman, or on the expenses caused by his illness, but on the difference between his wages-earning capacity before and after the accident. But the subject is so closely connected with that of the Employers' Liability Act that it is convenient here to give a slight sketch of the main principles of the Act. Art. 95. — Liability to Pay Compensation. (1) To entitle a workman to compensation he must show either — (a) (i) That he has suffered personal injury by accident, and (ii) That the "injury by accident" arose out of his employment, and (hi) That the "injury by accident" arose in the course of his employment, and (iv) That the injury has disabled him for at least one week from earning full wages at the work at which he was employed (/) ; or (b) That by reason of his suffering from an "industrial disease," due to the nature of his employment, he has been disabled for at least one week from earning full wages at the work at which he was employed (g). (/) Workmen's Compensation Act, 1006, s. 1. (#) Ibid., s. 8. Liability to Pay Compensation. 213 (2) Where the injury by accident or industrial Art - 95 - disease results in death the workman's depen- dants are entitled to compensation (//■). "Depen- dants " means members of the family who were, in fact, wholly or in part dependent on his earnings (/). It must be observed that in this connection the words Comment. " injury " and " accident " are used in a popular sense. "Injury" does not mean "injuria," i.e., an actionable injury by wrong, but physiological injury, such as a broken limb, accident, rupture, wound, or other hurt however caused. " Accident " does not mean " inevitable accident." There Accident, is an " injury by accident " if a workman is hurt, whether it be by inevitable accident for which no one is to blame, or be the result of the negligence of a fellow workman, or of the employer, or of the workman who is injured. " Accident " is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an un- toward event which is not expected or designed (k). And the fact that a man, by reason of his physical debility, is more likely to suffer an accident does not affect the question whether what befell him is to be regarded as an accident or not. Thus, when a workman in a very weak and emaciated condition while working in the stokehole of a ship received a heat stroke from the effect of which he died, it was held to be a death by accident (I). But accident does not include injury by disease alone not accompanied by any accident. The words " arising out of" indicate the origin or cause "Arising of the accident which must be dependent on and connected out °'-" with the employment, that is due to some cause or risk incidental to the employment. So where a sailor dis- appeared while on watch, his death was held to be due to an accident arising out of his employment (?n). Where a (A) Hid., s. 1, Sched. I. (i) Ibid,, s. 13. (As) Per Lord Macnaghten, Fenton v. Tlwrley, [1903] A. C. 443. (0 Ismay, Imrie & Co. v. Williamson, [1908] A. C. 437. (?«) Owners of S.S. Swansea Vale v. Rice, 27 T. L. K. 440. 214 Liability of Employers for Injuries to Servants. Art. 95. " In the course of. Serious and wilful misconduct. cashier, whose duty it was to take large sums of money by train to a colliery, was murdered whilst so employed, it was held that the accident arose out of his employment inas- much as his duty exposed him to this special risk which was consequently incidental to his employment (n). Where a workman was injured by lightning it was held to be an accident arising out of his employment owing to the place and circumstances in which he was employed involving a greater than ordinary risk of injury by lightning (o). So where a teamster in the course of his employment was bitten by one of the stable cats, the accident was held to have arisen out of his employment (p). But where, a workman was injured in the course of his employment by the tortious act of a fellow-workman which had no relation to the employment, the accident was held not to have arisen out of the employment (q). " A man may be within the course of his employment not merely while he is actually doing the work set before him, but also while he is where he would not be but for his employment, and is doing what a man so employed might do without impropriety " (r). So the Act applies where the accident arises on the employers' premises, but at a time when the actual employment has not commenced or after it has terminated (s), or during some temporary cessation of work ; but does not apply when the accident occurs whilst the workman is going to, or returning from, his work. The fact that the accident was due to the negligence, or even to the misconduct, of the workman is no answer to his claim for compensation. If, however, the accident only results in temporary disablement, and was attributable to serious and wilful misconduct, he is not entitled to compen- O) Msbet v. llayne and Burn, [1910] 2 K. B. 689 [C. A.]. (o) Andrew v. Failsworth Industrial Society, [1904] 2 K. B. 32 [C.A.]. O) Rowland v. Wright, 24 T. L. R. 852 [C. A.]. (?) Fitzgerald v. Clarke $ Son, [1908] 2 K. B. 796 [C. A.]. (;•) Per Lord LOREBURN, L.C., Low or Jackson v. General Steam Fishing Co., [1909] A. C. 523, at p. 532. 0) Gane v. Norton Hill Colliery Co., [1909] 2 K. B. 539 [C. A.]. Liability to Pay Compensation. 215 sation (t). It has been held that mere disobedience to rules Art. 95. is not necessarily serious and wilful misconduct, even though it renders the workman liable to prosecution, and though it was such as would entitle the master to dismiss the workman without notice (u). All persons who work under a contract of service or To whom the apprenticeship are "workmen" entitled to the benefit of ^PP" the Act, except : (a) persons not engaged in manual labour (such as clerks) and earning more than £250 a year ; (b) persons whose employment is casual and are not employed in the employer's business, e.g., a domestic charwoman not having a regular engage- ment ; (c) members of the employer's family dwelling in his house ; (d) out-workers ; (e) members of a police force ; (f) persons in the naval or military service of the crown (x). The scale of compensation and the mode of working it Scale of com- out is set out in detail in Schedule I. to the Act, and has P ensatlon been the subject of a good many decisions. The amount to which the workman is, or, in case of death, his dependants are, entitled, depends primarily on his wages. In the case of total or partial incapacity he gets a weekly sum so long as the incapacity lasts, not exceeding half his average weekly earnings during the preceding twelve months. In the case of death his dependants get a lump sum in no case exceeding £300. No action lies for compensation. If the right to compen- Procedure sation or the amount of compensation is disputed the matter is decided in the first instance by an arbitrator, who may be, and generally is, a county court judge. From him there is an appeal direct to the Court of Appeal. (0 Workmen's Compensation Act, 1906, s. 1 (2) (c). O) Johnson v. .Marshall, Sons S,' Co., [1906] A. C. 409. (*) Workmen's Compensation Act, 19u6, ss. 9, 13. 216 Liability of Employees foe Injuries to Servants. Art. 95. When the injury is such that there is a cause of action Alt riTtiv a g amst tne employer at common law or under the Ein- remedies. ° ployers' Liability Act, the workman must elect whether he will proceed for compensation or bring an action. The employer ^cannot be compelled to pay both damages and compensation (y). (y) Workmen's Compensation Act, 1906, s. 1 (2). CANADIAN NOTES. 216tt Canadian Notes to Chapter IX. of Part II. Workmen's CompensxVtion Laws. An employer is under an obligation to provide safe and pro- per places in which his employees can do their work and cannot relieve himself of such obligation by delegating the duty to an- other. It follows that if an employee is injured through failure of his employer to fulfil such obligation the latter cannot in an action against him for damages, invoke the doctrine of common employment. Ainslie Mining and Kailway Co. v. McDougall, 42 Can. S.C.R. 420, affirming 42 N.S.R. 226. A rule of the Ottawa Electric Co., directed every employee whose work was near apparatus carrying dangerous currents to wear rubber gloves, which would be furnished on application. R. was not wearing such gloves when he was hurt : — Held, that the mere fact of the absence of the gloves was not such negligence on R.'s part as would warrant the case being withdrawn from the jury; and that though his failure to take such precaution was evidence of negligence, he had a right to have it left to the jury and considered in connection with other facts in the case. Ran- dall v. Abeam & Soper, 34 Can. S.C.R. 698. A negligent system or a negligent mode of using perfectly sound machinery may make the employer liable apart from the provisions of the statutes relating to employers' liability and workmen's compensation for injuries. The employer may be made liable who is blameworthy in respect of not having provided proper machinery and appliances for the worker. Where a mas- ter employs his servant in a work of danger, he is bound to exer- cise due care in order to have his tackle and machinery in a safe and proper condition, so as to protect the servant against unne- cessary risk. Fairweather v. Owen Sound Quarry Co., 26 O.R. 607; Dixon v. Winnipeg Electric Street R. W. Co.. 11 Man. R. 528; Mclnnes v. Malaga Mining Co., 25 N.S.R. 345 ; Whyte v. The Sydney and Louisbourg Coal Co., 25 N.S.R. 384. A master is responsible to his workmen for personal injuries occasioned by a defective system of using machinery as well as for injuries caused by a defect in the machinery itself. At com- 216a— l.t. 1. 2166 CANADIAN NOTES. mon law a workman was not precluded from obtaining compen- sation for injuries received by reason of defective machinery, or a defective system of using the same, by reason of his failure to give notice to the employer of such defect. Webster v. Foley, 21 Can. S.C.R. 580. The maxim volenti non fit injuria has no application in the case of injuries occasioned by the negligent conduct of the defendants. Canada Atlantic Ry. Co. v. Hurdman, 25 S.C.R. 219. A master is responsible in point of law not only for a defect on his part in providing good and sufficient apparatus, but also for his failure to see that the apparatus is properly used. Carrigan v. Granby Co. (1909), 16 B.C.R. 157, at page 169; Can- ada Woollen Mills v. Traplin (1904), 35 S.C.R. 424; Ainslie Min- ing and Ry. Co. v. McDougall (1909), 42 S.C.R. 420, at p. 426, per Davies, J. In Fralick v. Grand Trunk Ry. Co. (1910), 43 S.C.R. 494, Duff, J., at pp. 519, 520, states very clearly the duty of an employer with reference to the adoption of a system which in a material degree diminishes the risk to his workmen, and points out that if he fails in this duty it is no answer to say that the injured per- son is in fault, because it was in not providing a better means of preventing such defaults and avoiding the evil effects of them when they take place that the employers' failure of duty con- sisted. Where the work to be done by the servant is unquestion- ably dangerous, his employers owe it to him to give him instruc- tions if he is not experienced in that class of work. If this duty was delegated to another and by him neglected, probably the employers would not be responsible, but it is a distinct duty and they must assume the responsibility of their neglect to perform it. ' Carrigan v. Granby Co. (1909), 16 B.C.R. 157, at page 170, per Gregory, J. In Pattison v. C.P.R. (1911), 24 O.L.R. 482, 484, Sir John Boyd said: "In the evolution of the law, the old test as to who hired and paid is being modified, if not superseded, by the more modern method indicated in the judgment of Garrow, J.A., in Hansford v. Grand Trunk R. W. Co. (1909), 13 O.W.R. 1184, at p. 1187: i.e., the whole circumstances of the employment must be looked CANADIAN NOTES. 2l6e at, and the real effect of the actual relation existing must not be lost sight of in deference to a formula about hiring or paying. ' ' For the statutory law as to an employer's liability to his em- ployee for negligent acts of a fellow-workman causing personal injury to such employee, reference must be had to the various provincial statutes usually designated "Workmen's Compensa- tion" Acts. The underlying principle of these statutes is the abrogation of the strict rule of the common law which frequently left the employee without any remedy for injuries resulting from the neglect of a foreman or fellow-employee having the superin- tendence over the work; the employer is now made liable in many of such cases subject to restrictions as to amount and of giving notice of injury, and with exceptions as to certain classes of ser- vice. See Ruegg's Workmen's Compensation Laws (Canadian edition, 1910). Negligent or Illegal Acts of Employee Beyond the Scope of His Employment. The test to be applied to ascertain whether or not an employee is a servant is to consider whether the master has complete con- trol of the employee's acts as to the way he should do them. If he has, the employee is a servant. The general rule is, that the master is 'answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit though no express command or privity of the master be proved. Owen v. Dingwald (1910), 3 Sask. & 328, 330, per Lamont, J. In Fodey v. South Qu'Appelle (1910), 3 Sask. R, 412, the suit was brought against the municipal corporation of South Qu'Ap- pelle and against MeEwan, their road overseer. The defendant, McEwan, had committed a trespass in entering upon the plain- tiff's land and constructing a road diversion without taking expro- priation proceedings. The evidence shews that McEwan was a road overseer in the employ of the defendant municipality; that as such his duty was to make or repair roads under instructions from the council or a committee thereof ; that it was arranged in the council that the reeve and one of the councillors, the chair- 216d CANADIAN NOTES. man of the roads and bridges committee, should have charge of all works in connection with roads ; that they directed McEwan to make the road diversion in question in the action ; and that when McEwan made his report and sent in his pay-sheets to the coun- cil for the work in question, the council in open meeting passed the same and paid the accounts. On this evidence the Court held not only that McEwan was an employee of the municipality, but that in constructing the road diversion he was acting within the apparent scope of his authority as road overseer and that the municipality was liable. The law on the subject is laid down by the Privy Council in Citizen's Life Assurance Co. v. Brown [1904], A.C. 423, 13 L.J.P.C. 102, 90 L.T. 739, as follows:— "Although the particular act which gives the cause of action may not be authorized, still if the act is done in the course of employment which is authorized, then the master is liable for the act of his servant." In Halsbury's Laws of England, vol. 5, at p. 294, the learned author states that a company is liable for the torts of its agents when they are either acting within their apparent authority or apparently acting within their actual authority. Plaintiff came to a platform station of the defendant and sig- nalled an approaching car to stop. The car slowed down but did not stop, and as (it was passing the conductor seized plaintiff's hand, and while attempting to help her on board signalled the car to go on again, which it did. and she was injured. The jury found that the plaintiff was injured by the conductor seizing her hand and trying to pull her on the car, and that he acted negli- gently. It was held that it was the duty of the conductor to assist people in getting on and off the car, and that it might be within the line of his duty to assist those apparently about to get on a. car while it is slowing up; that the scope of a conductor's authority is one of evidence. Dawdy v. Hamilton. Grimsby and Beamsville Electric R.W. Co. (1902), 5 O.L.R. 92. If an illegal act is committed by a servant in furtherance of his own private ends, the employer is not responsible, so also if a servant does an act which is clearly ultra vires of the powers vested in the company, and the reason is that such an act cannot be considered as done within the scope of his employment; but CANADIAN NOTES. 216e if the illegal act is in furtherance of his employer's orders, or in the course of his employment, the employer is responsible, and in the latter ease, even if the act was unknown or actually forbidden by the employer. Harris v. Brunette, 3 B.C.R. 174; Turner v. Isnor, 25 N.S.R. 428; Stott v. Grand Trunk R. W. Co., 24 U.C. C.P. 347 ; Bell v. W. & A. R. W. Co., 24 N.S.R, 521. A tradesman's teamster, sent out to deliver parcels, went to his supper before completing the delivery. He afterwards started to finish his work, and in doing so he ran over and injured a child. It was held that from the moment he had started to complete the business in which he had been engaged he was in his master's employ just as if he had returned to the master's store and made a fresh start. Merritt v. Hepenstal, 25 Can. S.C.R. 150; Milner v. Manitoba Lumber Co., 6 Man. R. 487. If a passenger on a railway train is in danger of injury from a fello'W-passenger, and the conductor knows, or has an oppor- tunity to knoAv, of such danger, it is the duty of the latter to take precautions to prevent it, and if he fails or neglects to do so the company is liable in case the threatened injury is inflicted. (Pounder v. North-Eastern Railway Co., [1892] 1 Q.B. 385, dis- sented from. Judgment of the Court of Appeal, 5 Ont. L.R. 334. affirmed.) Canadian Pacific Railway Company v. Blain, 34 Can. S.C.R. 74. [Leave to appeal from this judgment was after- wards refused by the Privy Council (1904), A.C. 453.] The defendant, an hotel keeper, being the possessor of an omni- bus and horses, made an agreement with M. whereby, in consid- eration of M. driving the defendant's guests free to and from the railway stations, and paying the defendant 70 cents a day for the board of the horses at the defendant's stables, M. should be entitled to the use of the omnibus and horses, and to take for his own use all sums which he could earn by conveying passengers other than the defendant's guests, and by carrying luggage. The plaintiff was injured upon the highway owing to the negligence of M., who was driving the omnibus empty to one of the stations to meet an incoming train. Held, that the question whether the relation between the defendant and M. was that of master and servant or that of bailor and bailee was a question of fact, and ttie test was the existence of the right of control as to anything 216a— l.t. 2. 216/ CANADIAN NOTES. not necessarily involved in the proper performance of the work undertaken by M. for the defendant; and that the relationship between the defendant and M. was that of bailor and bailee ; and therefore the defendant was not responsible for the negligence of M. (Saunders v. City of Toronto (1899), 26 A.R. 265, fol- lowed.) Fleuty v. Orr, 13 O.L.R. 59 (D.C.). ( 217 ) CHAPTEE X. OF PRIVATE INJURY FROM PUBLIC NUISANCES. The term "nuisance" is used to include two distinct Meaning of causes of action. A public nuisance is an infringement of "public n n i • l l nin Seine© j a public right and an injury to the public, lor which the an( j "private proper remedy is either criminal proceedings or an inf or- nuisance." mation by the Attorney-General on the part of the public, asking for an injunction to restrain the continuance of the public nuisance. It is only when there is some special injury to an individual that it is the subject of an action for damages. A private nuisance, on the other hand, is some injury to the property of an individual. It is not an injury to the public. In some cases, however, the line between public and private nuisance is rather fine. Thus, such an act as carrying on a noisy trade, or emitting foul gases, though usually only a private nuisance, may amount to a public nuisance if, by reason of the injury done to the neighbour- hood, it interferes with the comfort and enjoyment of the public generally, or at least of all who come within range of it (a). Art. 96. — Description of Public Nuisances. (1) A public nuisance is some unlawful act, or omission to discharge some legal duty, which act or omission endangers the lives, safety, health, or comfort of the public, or by which the (a) See Soltau v. De Held, 2 Sim. (N.S.) 133. 218 Of Private Injury from Public Nuisances. Art. 96. Kinds of public nuisances. Nuisances to highways. Examples. Excavations. public are obstructed in the exercise of some common right. (2) No action can be brought for a public nuisance by a private person unless he has suffered some substantial particular damage beyond that suffered by the public generally. Public nuisances consist not only of those acts or omissions which interfere with definite public rights, such as the right of the public to use a highway, but also of nuisances which endanger the health, safety, or comfort of the public generally. So, where a sanitary authority so manage their sewers as to affect the health or comfort of the public or the inhabi- tants of a large district, they commit a public nuisance in respect of which the Attorney-General is the proper party to take proceeedings (6). As also does a person who allows rubbish or filth to be deposited on his land so as to be injurious to the inhabitants of the neighbourhood (c). Nuisances to highways consist in any obstruction of the highway, or anything which renders the use of the highway unsafe or incommodious for the public, as physically stopping it up, or making excavations on, or immediately adjoining, it, or maintaining ruinous fences or buildings immediately adjoining it. (1) Thus, where a man makes an excavation adjoining a highway, and keeps it unfenced, he commits a public nuisance and is liable for any injury occasioned to a person falling into it (d). (2) So, also, traders who keep vans in a street for an unreasonable time for the purpose of loading and unloading, cause an unreasonable obstruction which may amount to a public nuisance (c). Co) See Att.- Gen. v. Luton Local Board, 2 Jur. (x.s.) 180 ; Att.- Gen. v. Birmingham Town Council, 6 W. R. 811; Att.- Gen. v. Tod Heatley, [1897] 1 Ch. 560 [C. A.]. (r) Att.- Gen. v. Tod Heatley, [1897] 1 Ch. 560. (77) Barnes v. Ward, H C. B.392. (/) Att.-Gcn. v. Brighton and Hove Co-operative Suj)j)ly Association, [1900] 1 Ch.276 [C. A.]. Description of Public Nuisances. 219 (3) To permit premises adjoining a highway to fall into Art. 96. a ruinous condition is a public nuisance entitling a person . ~~ . . , at Kuinous injured thereby to damages. Thus, where the defendant premises, had a heavy lamp projecting over the highway, which by reason of want of repair fell on the plaintiff and injured her, it was held that the defendant was liable (/'). (4) So, also, a person who maintained a low spiked wall Dangerous immediately adjoining a highway was held liable for injuries tences - caused to a little girl who stumbled against the spikes whilst using the highway ([/). And, similarly, where a boy attempted wrongfully to climb a rotten fence adjoining a highway, and the fence fell upon and injured him, he was held to be entitled to recover, because the fence was a nuisance, and he only did what might have been expected •of a boy (/;). (5) An excavation on land not so near to a highway as to Excavations be dangerous to persons lawfully using the highway is not a to roads Cen nuisance, and a trespasser has no right of action if he falls into it (i). (6) A public nuisance may be authorised by statute (k), Justification but the right to do what amounts to a public nuisance of llulsances - cannot be acquired by prescription or long user, or justified on the ground that it is in some respects a convenience to the public (/). So the mere fact that a nuisance to a high- way has existed for a long time is no defence. In order to justify, it must be shown to have existed at the time when the highway was dedicated to the public, so that it may be inferred that the highway was dedicated subject thereto. Thus, a highway may be dedicated subject to the right to plough it up at intervals (m), or to hold markets or fairs on it (n), or to the right of an adjoining owner to maintain in (J) Tarry v. Ashton, 1 Q. B. I). 314. (//) Fenna v. Glare, [1895] 1 Q. B. 199. (7<) Harrold v. Watney, [1898] 2 Q. B. 320 [C. A.]. (?') See Hounsell v. Smyth, ante, p. 175. (It) B. v. Pease, 4 B. & Ad. 30, ante, Art. 10. (I) B. v. Train, 2 B. & S. 640 ; li. v. Ward, 4 A. & E. 384. («/) Arnold v. Maker, L. H. 6 Q. B. 433 [Ex. Ch.]. (») Elwood v. Bulloch, 6 Q. B. 383; Att.-Gen. v. Horner, 11 App. ■Cas. 66. 220 Of Peivate Injury from Public Nuisances. Art. 96. the footway a cellar flap or grating (o). But after the public have acquired the highway, no right to do these things can be gained except by statute. Art. 97. — Public Nuisance only Actionable in respect of Particular Damage. To enable a private person to bring an action for damages in respect of a public nuisance, he must prove either — (a) That he has suffered some substantial damage peculiar to himself in his per- son or trade or calling, and different in kind from the damage suffered by the public ; or (b) That the public nuisance is also an inter- ference with some private right or property of his. Comment. The damage to fall within the first part of this rule must, be different in kind, and not merely in degree, from that suffered by the public generally. Thus obstructing a highway is a public nuisance. A person who is merely prevented from using the highway suffers only the same damage as any other member of the public (£>)• But a person who in using the highway suffers personal injuries by reason of the obstruction, suffers damage peculiar to himself, and in respect thereof he has a right of action {q). So, too, has a person whose business is interfered with by reason of customers being deterred from getting to his. shop (r), or by reason of his business premises being rendered dark or less commodious (s). 0) Fisher v. Prowse, 2 B. & S. 770 ; Bobbins v. Jones, 15 C. B. (N.s.> 221. (.20 Winterbottom v. Lord Derby, L. R. 2 Ex. 316. lq) Barnes v. Ward, 9 C. B. 392. (?•) Fitz v. Hobson, 14 Ch. D. 542. (.«) Benjamin v. Storr, L. R. 9 C. P. 400. Liability for Public Nuisances. 221 Again, an obstruction to a highway may also be an inter- Art. 97. ference with some private right, or some property of the plaintiff, so that in that way also he suffers damage of a kind peculiar to himself. The right of access to a highway from adjoining property is a private right quite distinct from the public right of using the highway, and accordingly au obstruction which cuts off access to an highway is actionable as causing particular damage (t). Any person may abate a public nuisance by which he is Abatement obstructed in the exercise of a public right by removing the obstruction so far as is reasonably necessary to enable him to exercise the right interfered with ; but he cannot do more than this. So, if there is an obstruction in a highway, a person using the highway may only interfere toith it as far as is necessary to exercise his right of passing along the highway, and if there is room to pass by without removing the obstruction, he has no right to interfere with it (u), and may be liable to the owner if he damages the property by interfering with it. Art. 98. — Liability of Owner or Occupier for Public Nuisances. (1) If a person is injured by reason of a public- nuisance caused by the want of repair or con- dition of premises adjoining a highway, the occupier is prima facie liable and not the owner (unless he is also the occupier) (v). In particular the owner is not liable if he lets the premises to a tenant who agrees to repair them, unless (perhaps) he knows of the nuisance at the time of the letting and does nothing to remedy it (x). (0 Lyon v. Fishmongers Co., 1 App. Cas. 662. 00 Dimes v. Petley, 15 Q. B. 276 ; Davies v. Mann, 10 M. & W. 546. (v) Nelson v. Liverpool Brewery Co., 2 C. P. D. 311. (./•) Pretty v. Bickmore, L. R. 8 C. P. 401 ; 6wi?inell v. Earner, L. R. 10 C. R. 658. m 222 Of Private Injury from Public Nuisances. Art. 98. (2) The owner is liable (i) if he has contracted with the tenant to repair and the nuisance is due to want of repair (y) ; (ii) if he has let the premises in a ruinous condition and the tenant- has not agreed to repair (z). (3) Where the premises are in the occupation of a tenant from year to year there is, in effect, reletting each year, and (unless the tenant has agreed to repair) the landlord is liable for damage caused by a nuisance, if since the creation of the nuisance and before the damage he might have determined the tenancy and did not, for in that case he "lets the premises in a ruinous con- dition " (a). (4) When premises are let on a weekly tenancy there is not a reletting at the end of each week so as to make the landlord liable for nuisances- arising since the original letting, unless he has contracted with the tenant to do repairs. For such nuisances the tenant and not the landlord is liable (b). Comment. The principle is that the occupier is prima facie liable. An owner not in occupation is only liable if he has in some way authorised the continuance of the nuisance. He may authorise the continuance of the nuisance if, knowing of its- existence, he lets the premises without repairing or requiring the tenant to repair, or if he keeps control of the premises by undertaking to repair himself. So, too, the owner and occupier of vacant land is liable if he knows it is being so used by the public as to become a public nuisance, and does not take reasonable steps to (y) Payne r. Rogers, 2 H. Bl. ?50. (z) Gandy v. Jvlber, 5 B. & S. 78. (a) Ibid. (&) Bowen v. Anderson, [1894] 1 Q. B. 164. Liability for Public Nuisances. 223 prevent such a user, even though he may not himself have Art. 98. actively done anything to cause the nuisance (c). But neither owner nor occupier is liable for a nuisance created by some third person without his knowledge and which he could not by reasonable care have prevented (d). (1) Tbe defendant let premises to a tenant who covenanted Illustrations, to keep them in repair. Attached to the house was a coal- cellar under the footway, with an aperture covered by an iron plate, which was, at the time of the demise, out of repair and dangerous. A passer-by, in consequence, fell into the aperture, and was injured : — Held, that tbe obliga- tion to repair being, by the lease, cast upon the tenant, the landlord was not liable for this accident. And Keating, J., said: "In order to render the landlord liable in a case of this sort, there must be some evidence that he authorised the continuance of this coal shoot in an insecure state ; for instance, that he retained the obligation to repair the premises ; that might be a circumstance to show that he authorised the continuance of the nuisance. There was no such obligation here. The landlord had parted with the possession of the premises to a tenant, who had entered into a covenant to repair " (e). (2) A. was injured by the giving way of a grating in a public footway, which was used for a coal shoot, and for letting light into the lower part of the premises adjoining. The premises were at the time under lease to a tenant who covenanted to repair. At the time of the demise the grating was insecure, but there was no evidence that the landlady had any knowledge of its unsafe state, and the jury found she was not to blame : — Held, that as the premises were demised, and there was no longer any obligation on the landlord to keep them in repair, the plaintiff had no cause of action against the landlady. It was intimated that if the landlady had, at the time of the demise, known of the 0) Att.-Gm. v. Tod Heatley, [1897] 1 Ch. 560 [C. A.]. (rf) Barker v. Heriert, [1911] 2 K. B. 633. (>) Pretty v. Biojtmore, L. R. 8 C. P. 101, and see Nelson v. Liverpool Brewery Co., 2 C. P. D. 311. tenant. 224 Of Private Injury from Public Nuisances. Art. 98. defect and done nothing to remedy it, she might have been liable as well as the tenant (/). Liability of (3) The above rules only apply to nuisances (g). They landlord to have no application as between landlord and tenant, or landlord and the guests of a tenant. Apart from contract, a lordlord is not bound to keep the demised premises in repair as regards either his tenant (h), or the guests of his tenant (i). As regards the duty of a landlord of flats to keep in repair those portions of the buildings which are not let to tenants, such as the staircases and passages, see Miller v. Hancock (k) and Hargroves, Aronson & Co. v. Hartopp (I), supra, p. 173. (4) When some boys broke the railings of an area of a vacant house, so that the area was a danger to persons using the street, it was held that the owner was not liable as he did not know of the broken railing and had used reasonable care to prevent the railings becoming a nuisance. An area is not a thing a man keeps at his peril {in). (/) Gwinnett v. Earner, L. R. 10 C. P. 658. (jl~) As to private nuisances, see post. (/;) Keates v. Cadoaan, 20 L. J. C. P. 76. (0 Lane v. Cox, [1897] 1 Q. B. 415 [C. A.]. O) [1893] 2 Q. B. 177 [C. A.]. (Z) [1905] 1 K. B. 472. O) Barker x. Herbert, [1911] 2 K. B. 633. CANADIAN NOTES. 224« ( Canadian Notes to Chapter X. of Part II. Private Injury from Public Nuisances. "Whoever suffers more than others by the public wrong may sue for the damage or inconvenience. Drew v. Baby, 1 U.C.R. 438. Where an object is left overnight on the highway unlighted and unguarded (in this case a building in process of removal), which is calculated to frighten horses, and by which a horse is frightened, and an accident results, and where the municipality though having notice, have taken no precaution to warn travellers, the municipality is liable, in the absence of contributory negli- gence, but is entitled to be indemnified by the person who placed the obstruction on the highway. Rice v. Corporation of Whitby, 28 O.R. 598 ; McMullen v. Archibald, 22 N.S.R. 146 ; York v. Can- ada Atlantic S.S. Co., 24 N.S.R. 436 ; Baines v. Woodstock, 10 O.L.R, 694. The charter of a street railway company required the road between, and for two feet outside of, the rails to be kept con- stantly in good repair and level with the rails. A horse crossing the track stepped on a grooved rail and the caulk of his shoe caught in the groove, whereby he was injured. In an action by the owner against the company it appeared that the rail at the place wjiere the accident occurred was above the level of the roadway. It was held, affirming the judgment of the Supreme Court of Nova Scotia, that as the rail was above the road level, contrary to the requirements of the charter, it was a street obstruction unauthorized by statute, and therefore a nuisance, and the company was liable for the injury to the horse caused thereby. Halifax Street Ry. Co. v. Joyce, 22 Can. S.C.R. 258; see also Pictou v. Geldert, [1893] A.C. 524. The owner of a high building which has been so damaged by fire that the walls are in danger of falling, is not liable in all cases for the consequences of such falling, but is bound to take within a reasonable time very considerable precautions to pre- vent such falling when there are other buildings near enough to be damaged thereby; and, if a wall falls and damages have been 224a— l.t. 1. 2246 CANADIAN NOTES. caused to such other building, the onus is upon the owner to shew that he was not negligent in the matter. Such onus is satisfied, however, by evidence convincing to the court, that the walls had been braced after the fire to such an extent that the architect of the building and the building inspec- tor pf the city, upon being consulted by the owner, in good faith advised him shortly before the accident that there was no danger of their falling, and that he in good faith acted upon such advice, although the result shewed that the experts consulted had been mistaken. McNerny v. Forrester (1911), 47 C.L.J. 625 (Man.). ( 225 ) CHAPTEE XI. PRIVATE NUISANCES. SECTION I.— NUISANCE TO CORPOEEAL HEREDITAMENTS. Art. 99. — General Liability. (1) A private nuisance is some unauthorised user of a man's own property causing damage to the property of another, or some unauthorised interference with the property of another, causing damage. (2) Any private nuisance whereby sensible injury is caused to the property of another, or, whereby the ordinary physical comfort of human existence in such property is materially interfered with, is actionable. (3) Liability for nuisance is independent of negligence. (4) No use of property which would be legal if due to a proper motive, can be a nuisance merely because it is prompted by a motive which is improper or even malicious (a). The law with regard to private nuisances mainly depends Comment, upon the maxim sic utere tuo ut alicnum non Iceclas. Not that that maxim can receive a literal interpretation, for a man may do many acts which may injure others (ex. gr., build a house which may shut out a fine view theretofore enjoyed by a neighbour) ; but such acts are necessarily («) Bradford Corporation v. Pickles ',*[1895] A. C. 587. L.T. Q 226 Private Nuisances. Art. 99. Lawful act done with malicious motive. Illustrations. Fumes. Noisy and noisome trades. Interference with enjoy- ment of property. incidental to the ownership of property. The acts referred to in the maxim are acts which go beyond the recognised legal rights of a proprietor. The owner of land containing underground water which percolates by undefined channels, and flows to the land of a neighbour, has the right to divert or appropriate the per- colating water within his own land, so as to deprive his neighbour of it (b). An owner diverted underground water percolating in undefined channels, not to improve his own land, but maliciously in order to injure his neighbours by depriving them of their water supply and to compel them to buy him out. This unneighbourly conduct, however, was held to be lawful, because it was an act rightful in itself, and therefore not wrongful when done maliciously (c). (1) In the leading case of Tipping v. St. Helens Smelting Co. (d), the fact that the fumes from the company's works killed the plaintiff's shrubs, was held sufficient to support the action ; for the killing of the shrubs was an injury to the property. (2) So, too, it was said, in Crump v. Lambert (e), that smoke, unaccompanied with noise or with noxious vapour, noise alone, and offensive vapours alone, although not injurious to health, may severally constitute a nuisance ; and that the material question in all such cases is, whether the annoyance produced is such as materially to interfere with the ordinary comfort of human existence in the plaintiff's property. (3) "Where the alleged nuisance consists of acts which interfere with the reasonable enjoyment of property, the inconvenience must be substantial. In Walter v. Selfe (/), Knight Bkuce, V.-C, put the question thus : Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an incon- venience materially interfering with the ordinary comfort physically of human existence, not merely according to (ft) Chasemore v. RioJiards, 7 II. L. Cas. 319. (<•) Bradford Corporation v. Picltles, [1895] A. C. 587. (rf) L. R. 1 Ch. (56. le) L. R. 3 Eq. 409. (./ ) 1 De G. & Sm. 315, p. 322. General Liability. 227 elegant or dainty modes and habits of living, but according Art. 99. to plain and sober and simple notions among English people? " (4) The collection of a crowd of noisy and disorderly Noisy enter people outside grounds in which entertainments with music tainments and fireworks are being given for profit, may constitute a nuisance, even though the entertainer has excluded all improper characters, and the amusements have been con- ducted in an orderly way (y). So, too, may the collection of large and noisy crowds out- side a club kept open till 3 a.m. for pugilistic encounters (h). (5) So, too, the turning of the ground floor of a London house into a stable, so that the neighbours are disturbed all night by the noises of the horses, may constitute a nuisance (i). (6) Other examples of nuisances to corporeal heredita- Other ments, are, permitting buildings to become ruinous so as exam P les - to fall on one's neighbour's land (k), overhanging eaves from which the water flows on to another's property (I) ; or overhanging trees (m) ; or pigstys creating a stench, erected near to another's house. And it would seem that noisy dogs, preventing the plaintiff's family from sleeping, are a nuisance if serious discomfort is caused (n). So, also, is a small-pox hospital so conducted as to spread infection to neighbouring houses (o). (fj) Walker v. Brewster, L. R. 5 Eq. 25. See also Incllbald v. Robinson, Incllbald and Harrington, L. R. 4 Ch. 388. (JO Bellamy v. Wells, 60 L. J. Ch. 15G. And see also Barber v. JPenley, [1893 J 2 Ch. 447, and Jenkins v. Jackson, 40 Ch. D. 71. (0 Ball v. Bay, L. R, 8 Ch. 467. (JO Todd v. Flight, 9 C. B. (n.s.) 377. (/) Bathishill v. Beed, 25 L.J. C. P. 290. (»0 Lemmon v. Webb, [1S95] A. C. 1 : Smith v. Giddu, T19041 :2K. B. 44S. l/ ' L J O) Street v. Tugwell, Selwyn's Nisi Prius, 13th ed., 1070. (o) Metropolitan Asylums v. Hill. 6 App. Cas. 193. Q 2 228 Private Nuisances. Artioo. Art. 100. — 'Reasonableness of Place. (1) That which is prima facie a nuisance can- not be justified by the fact that it is done in a proper and convenient place and is a reasonable use of the defendant's land (jj>). (2) Where the acts complained of are nui- sances by reason of injury to property, it is no defence that the locality is one devoted to trades which cause such injury (q). (3) But with regard to acts which are nui- sances by reason of their interfering with the enjoyment of property, as distinguished from those which damage the property itself, the circum- stances of the locality must be taken into consideration (r). Comment. (1) The spot selected may be very convenient for the defendant, or for the public at large, but very inconvenient to a particular individual who chances to occupy the adjoining land ; and proof of the benefit to the public, from the exercise of a particular trade in a particular locality, can be no ground for depriving an individual of his right to compensation in respect of the particular injury he has sustained from it. Thus, where the defendant used his land for burning bricks and so caused substantial annoyance to his neighbour, it was held that it was no defence that it was done in a proper and convenient spot, and was a reasonable use of the land (^). At the same time a person is entitled to use his land or house in the ordinary way in which property of the like character is used, and an adjacent owner must put up with such noises and inconveniences as may reasonably be expected from his neighbours, such as the noise of a pianoforte, or the noise of children in their Q0 Bamford v. Turnlcy, 31 L. J. Q.13. 286 [Ex. Ch.]. <7/) St. Helens Smelting Co. v. Tipping, 11 II. L. Cas. <;12. (/•) JliuL-Aiid Polsue mill Aljieri, Limited v. Sushmer, [1907] A. C. 121. Eeasonableness of Place. 229 nursery, which are noises we must reasonably expect, and Art. 100. must, to a large extent, put up with (s). (2) In St. Helens Smelting Co. v. Tipping (t), Lord West- bury said: "In matters of this description, it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter — namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, any- thing that discomposes or injuriously affects the senses or the nerves — whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circum- stances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those opera- tions of trade which may be carried on in the immediate locality, which are actually necessary for trade and com- merce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town, and the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground of complaint because, to himself individually, there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade or occupation or business is a material injury to property, then unquestionably arises a very different con- sideration. I think that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neigh- bours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property." (*) See Ball v. Ray, L. K. 8 Ch. 467 ; Att.-Gen. v. Cole, [1901] 1 Ch. 205 ; Bernhardt v. Mentasti, 42 Ch. D. 685. (0 11 H. L. Cas. 650. 230 Private Nuisances. Art. 100. (3) In a recent case(?£), Washington, J., said that for the purpose of coming to a decision whether working a noisy printing machine by night in Gough Square (a neigh- bourhood devoted to the printing trade) was a nuisance to a residence adjoining the square, he was to look not at the defendants' operations in the abstract and by themselves, but in connection with all the circumstances of the locality,, and in particular with regard to the trades usually carried on there, and the noises and disturbance existing prior to the commencement of the defendants' operations ; but that if after taking these circumstances into consideration, he found a serious and not merely a slight interference with the plaintiff's comfort, he thought it his duty to interfere. And acting on this principle, he granted an injunction restraining the defendants from using their machine, although the machine was one of an improved type, quieter than those generally used, and was properly used. It was enough that in fact it created a nuisance. His decision was. affirmed in the House of Lords. Art. 101. — Plaintiff coming to the Nuisance. It is no answer to an action for nuisance, that the plaintiff knew that there was a nuisance, and yet went and lived near it (x). Or in the words of Byles, J., in Hole v. Barlow (y) : " It used to be thought that if a man knew that there was a nuisance and went and lived near it, he could not recover, because it was said it is he that goes to the nuisance, and not the nuisance to him. That, however, is not law now." The justice of this is obvious from the consideration, that if it were otherwise, a man might be wholly prevented from building upon his land if a nuisance was set up in its («) Rushmcr v. Polsue and Alfit ri, Limited, 21 T. L. R. 183, affirmed in House of Lords, [1907] A. C. 121. (a?) Bliss v. Hall, i Bing. N. C. 183. (//) 27 L. J. C. P. 207, at p. 208. Plaintiff Coming to the Nuisance. 231 locality, because the nuisance might be harmless to a mere Art. 101. field, and therefore not actionable, and yet unendurable to the inhabitants of a dwelling-house. So where a confectioner had for many years used a Illustration, pestle and mortar in his kitchen in Wigmore Street, and then the plaintiff, a physician in Wimpole Street, built a consulting room in his back garden against the confec- tioner's kitchen, and the noise from the pestle and mortar was a nuisance to the consulting room, it was held that, although the plaintiff had come to the nuisance, he was nevertheless entitled to complain of it as a nuisance (z). Akt. 102. — Liability of Occupier and Owner for Nuisances. (1) The occupier of premises upon which a nuisance is created to adjoining property is prima facie liable. There is no liability upon an owner as such (a). (2) An owner who is not in occupation may be liable if he has originally created the nui- sance and let the premises with the nuisance complained of, or, when the nuisance is due to want of repair, has permitted the premises to get out of repair, and lets them with knowledge of the'want of repair, or has, as between himself and his tenant, undertaken the repairs (Z>). (3) Where the nuisance is caused, not by the state of the premises themselves, but by their user, an owner who is not in occupation is not liable for the nuisance, although he has let (r) St urges v.Bridgman, 11 Ch. D. 852 [C. A.]; and see Crossley ,V So/is, Limited v. Lightowler, L. li. 2 Cb. 47m. (rt) Ruxsell v. Shenton, 3 Q. B. 44'.». (/;) Rosewell v. Prior, 2 Salk. 460 ; Todd v. Flight, 'J C. B. (x.S.) 377. 232 Private Nuisances. Art. 102. faQ premises in such a condition that they are capable of being so used as to cause a nuisance (c). Comment. Nuisances caused by user of land. (1) Generally the person who causes or authorises the nuisance is liable, so a person who creates a nuisance on his land and then lets it with the nuisance, is liable if the nuisance is continued (d). And the purchaser or lessee also may be liable for continuing the nuisance (e). So, too, an owner of land who lets a house and under- takes, as between himself and his tenant, to repair, is liable if, by reason of his not repairing, a nuisance is caused to adjoining premises (/). But an owner who is not occupier is not liable unless he can be fixed with liability in one of these ways (g). (2) If a person builds a factory with a chimney on his land, and lets the land, he does not thereby authorise the user of the chimney so as to be a nuisance. It is not the existence of the chimney which is a nuisance, but its use, and for this the person who uses the chimney, not the owner of the land, is liable (/i). So, also, if a third person against my will puts something on my land which is a nuisance to my neighbour, I am not liable, for I have not caused the nuisance (i). Art. 103. — Prescription to Commit a Nuisance. The right to commit a private nuisance may be acquired by grant or prescription. Note. — An owner of land may by express grant give to another a right to do that which would otherwise be a (e) Rich v. Bastcrjield, 4 C. B. 783. (d) Rosewell v. Prior, 2 Salk. 460. (e) 1'cnrud dock's Case. 5 Co. Rep. 100 b. (/) Todd v. Flight, 9 C. B. (N.S.) 377. (> Kid gill v. Moor, '.) C. B. 364 ; Metropolitan Association v. Petch, 27 L.J. C. P. 330; Oreenslade v. Hdlliday, 6 Bing. 379. Qi) Baxter v. Taylor, 4 B. i: Ad. 72. Remedy by Abatement. 235 the reversioner (r). Some injury to the reversion must Art. 104. always be proved, for the law will not assume it (s). Art. 105. — Bemedy by Abatement. (1) A person injured by a nuisance may * abate it, that is remove that which causes the nuisance, provided that he commits no riot in the doing of it, nor occasions any damage beyond what the removal of the inconvenience neces- sarily requires (t). (2) Where there are alternative ways of abating a nuisance the less mischievous must be chosen (?/). (3) A person cannot justify doing a wrong to an innocent third party or to the public in abating a nuisance. So it seems that entry on the lands of an innocent third party cannot be justified (a;). (4) In order to abate a nuisance an entry may be made on the lands on which the cause of the nuisance is, provided notice requesting removal of the nuisance be first given. But if a nuisance can be abated without committing a trespass no notice is required (//) . (5) An entry on another's land to prevent an apprehended nuisance cannot be justified. It must be observed that notice is generally necessary Notice, before entry on the lands of another — but it seems that (r) Mumford v. Oxford, Worcester and Wolverhampton Hail, Co.. 25 L. J. Ex. 265 ; Simpson v. Savage, 2G L. J. C. P. 50. 0) Kidgill v. Moor, 9 C B. 364. (t) Stephen's Commentaries, Bk. V., Chap. I. (15th ed., Vol. III., p. 284). It is generally very imprudent to attempt to abate a nuisance. It is far better to apply for an injunction. O) Per Blackburn, J., in Roberts v. Rose, L. R. 1 Ex. 82 [Ex. Oh.], at p. 89. (./■) Ibid. (y) Lemmon v. Webb, [1895] A. C. 1. 236 Private Nuisances. Art. 105. notice is dispensed with in three cases, viz., (a) where the owner of the land was the original wrongdoer, by placing the nuisance there; (b) where the nuisance arises by default in performance of some duty cast on him by law ; and (c) when the nuisance is immediately dangerous to life or health (z). Examples. (i) Thus, if my neighbour build a wall and obstruct my ancient lights, I may after notice and request to him to remove it, enter and pull it down (a) ; but where the plaintiff had erected scaffolding in order to build, which building when erected would have been a nuisance, and the defendant entered and threw down the scaffolding, such entry was held wholly unjustifiable (b). (2) Branches of trees overhanging a man's land may be cut to abate the nuisance without notice, provided this can be done without committing a trespass (c). Pulling down (3) A commoner may abate an encroachment on his una itec common by pulling down a house or a fence obstructing his right (d) ; so also may one whose right of way is obstructed (e) ; before pulling down a house, notice and request to remove must be given if the house is actually inhabited (/ ). (0 See Jones v. Williams, 11 M.& W. 176. («) 11. v. Bosewell, 2 Salk. 459. (Z>) Nbrris v. Baker, 1 Roll. Rep. 393, fol. 15. (c) Lemmon v. Webb, [1895] A. C. 1. (^) Mason v. Ccssar, 2 Mod. Rep. 65. (e) Lane v. Gapsey, [1891] 3 Ch. 411. (f)Dacies v. Williams, 16 Q. B. 556 ; Lane v. Cajjscy. [1891] 3 Ch. 411. Nuisances to Incorporeal Hereditaments. 237 SECTION II.— NUISANCES TO INCORPOREAL HEREDITAMENTS. A servitude is a duty or service which is owed in respect Servitudes. of one piece of land, either to the owner as such of another piece of land, or to some other person. Property to which such a right is attached is called the dominant tenement, that over which the right is exercised being denominated the servient tenement. Where the right is annexed to a dominant tenement it is said to be appurtenant if it arises by prescription or grant, and appendant if it arises by manorial custom. Where it is annexed merely to a person it is said to be a right in gross. Servitudes are either natural or conventional. Natural Natural servitudes are such as are necessary and natural adjuncts servitudes. to the properties to which they are attached (such as the right of support to land in its natural state), and they apply universally throughout the kingdom. Conventional servi- tudes, on the other hand, are not universal, but must always arise either by custom, prescription, or express or implied grant. The right to the enjoyment of a conven- tional servitude is called an easement or a profit a prendre Easements in alieno solo, according as the right is merely a right of B,nd jnv/it ci user, or a right to enter another's land and take something ^ from it, as game, fish, minerals, gravel, turf, or the like. The easements known to our law are numerous. Mr. Gale, in his excellent treatise on Easements, gives a list of no less than twenty-five " amongst other " instances. Any unjustifiable interference with an easement or other servitude is a tort, and torts of this kind are usually classed with nuisances. As the rights interfered with are incorporeal hereditaments, they are spoken of as nuisances to incorporeal hereditaments. Torts of this kind are as various as are the kinds of easements and other servitudes, but in an elementary work such as this, it is only possible to treat of those which most often occur in practice, namely, interferences with : (1) rights of support for land, (2) rights of support for buildings, (3) rights to the free access of light and air. 238 Private Nuisances. (i) rights to the use of water, and (5) rights of way. And as to these, it is only proposed to deal with the nature of the rights sufficiently to enable the student to appreciate what kind of acts amount to disturbances. The law relating to the acquisition of servitudes and their incidents belongs rather to the law of property than to that of torts. Franchises. Another kind of incorporeal right is a franchise, and a disturbance of that right is a nuisance. Franchises include rights of ferry and market. Other rights akin to franchises are patent rights, copyrights, and rights to trade marks ; the nature and acquisition of which depend largely upon the several statutes relating thereto. The right to vote for members of Parliament is also a franchise, and an action lies for preventing a person from exercising that right (g). Disturbances or interferences with •profits a prendre (such as rights of common and fisheries) and of franchises (such as ferries and markets) are torts, and are properly included among nuisances to incorporeal hereditaments. But the nature of these rights and what acts amount in law to disturbances belongs rather to the law of property than to that of torts, and cannot be conveniently discussed in an elementary works on torts. Art. 106. — Disturbance of Right of Support for Land without Buildings. (1) Every person commits a tort, who so uses his own land as to deprive his neighbour of the subjacent or adjacent support of mineral matter necessary to retain such neighbour's land in its natural and unencumbered state (h). (2) A man may not pump from under his own land a bed of wet sand so as to deprive his 0/) Ashby v. White, 2 Lord Rayni. 938 ; 1 Sm. L. C. 240. (//) Backhouse v. Bonomi, 9 H. L. Cas. .">03 ; Birmingham Corpo tion v. Allen, 6 Ch. U. 284 [C. A.J. Disturbance of Right of Support, etc. 239 neighbour's land of support (i) ; but he may Art - 106 - pump water from under his own land with impunity, although the result may be to deprive his neighbour's land of support (A - ). (3) In order to maintain an action for distur- bance of this right, some appreciable subsidence must be shown (Z), or, where an injunction is claimed, some irreparable damage must be threatened (m). (4) The right of support may be destroyed by covenant, grant or reservation (n). (1) In Humphries v. Brogden (o), Lord Campbell said : Illustrations. ''The right to lateral support from adjoining soil is not, T | 1C n § ht like the support of one building from another, supposed to jurenaturce. be gained by grant, but it is a right of property passing with the soil. If the owner of two adjoining closes conveys away one of them, the alienee, without any grant for that purpose, is entitled to the lateral support of the other close the very instant when the conveyance is executed, as much as after the expiration of twenty years or any longer period. Pari ratione where there are separate freeholds from the surface of the land and the mines belong to different owners, we are of opinion that the owner of the surface, while unencumbered by buildings and in its natural state, is entitled to have it supported by the subjacent mineral strata. Those strata may, of course, be removed by the owner of them, so that a sufficient support is left ; but if the surface subsides and is injured by the removal of these strata, although the operation may not have been conducted negligently nor contrary to the custom of the country, the (0 Jordeson v. Sutton, etc. Gas Co., [1S99] 2 Ch. 217 [C. A.]. (It) Popplewdl v. Hodhinson, L. R. 4 Ex. 248 ; but see per Lindley, M.R., in Jordeson v. Sutton, etc. Gas Co., [1899] 2 Ch., at p. 239. (7) Smith v. Thaelterah, L. R. 1 C. P. 564, as explained in Att.-Gen. v. Conduit Colliery Co., [1895] 1 Q. B. 301 [C. A.], at p. 313. (m) Birmingham Corporation \. Allen, 6 Ch. D. 284 [C A.]. (n) Rowbotham v. Wilson-, 8 H. L. Cas. 348 ; Aspden v. Seddon, L. R. 10 Ch. App. 394, and cases there cited. 00 12 Q. B. 739. 240 Peivate Nuisances. Art. 106. Subterranean water. Exception. owner of the surface may maintain an action against the owner of the minerals for the damage sustained by the subsidence. (2) But although there is no doubt that a man has no right to withdraw from his neighbour the support of adjacent soil, there would seem to be nothing at common law to prevent him draining that soil, if for any reason it becomes necessary or convenient for him to do so. It has therefore been held that he is not liable if the result of his drainage operations is to cause a subsidence of his neighbour's land Qj). But whatever may be true of percolating waters themselves, if a man withdraws, along with that water, quicksand or water-logged soil, and in consequence thereof his neighbour's land settles and cracks, he will be liable (q). And the same remark applies a fortiori to the withdrawal of pitch or other liquid mineral, and (it is submitted) to mineral oil (r). (3) Companies governed by the Bailways Clauses Consoli- dation Act, 1845, do not acquire any such right to subjacent support, by purchasing the surface ; and the owners of the mines may, after having given notice to the company, so as to give them the opportunity of purchasing the mines, work them with impunity in the ordinary way (s). But neither will an action lie against the company for any damage suffered by the mine owner, although perhaps he may demand compensation under the Act (t). (y>) Popplewell v. Hodhinson, L. R. 4 Ex. 248 ; but see the obser- vations on this case made by LlNDLEY, M.R., and RlGBY, L.J., in Jordexon v. Sutton, etc. Gas Co., [1899] 2 Ch. 217 [C. A.], at pp. 239, 213. (y) The subject was discussed in Salt Union v. Brunner, Mond $ Co.. [1906] 2 K. B. 822. There the defendants were held not liable for pumping brine from under their land though the result was to remove the support of neighbouring land by dissolving the salt in the subsoil. The decision, however, turned on the special circumstances of the case, and does not support the general principle that brine may be lawfully pumped so as to remove the support of adjacent lands. (>•) Jordeson v. Sutton, etc. Gas Co., [1899] 2 Ch. 217; Trinidad Asphalt Co. v. Amhard, [1899] 2 Ch. 2G0, and [1899] A. C. 591 [P. C.]. (.s) Great Western Rail. Co.v. Bennett, L. R. 2 H. L. 27 ; Ruabon Brich Co. v. Great Western Rail. Co., [1893] 1 Ch. 427 [C. A.]. (0 See Dunn v. Birmingham Canal Co., L. R. 8 Q. B. 42 [Ex. Ch.]. DlSTUBBANCE OF SUPPOBT OF BUILDINGS. k 241 Abt. 107.— Disturbance of Support of Ar^lOT. Buildings. (1) A tort is not committed by one who so deals with his own property, as to take away the support necessary to uphold his neighbour's buildings, unless a right to such support has been gained by grant, express or implied (it), or by twenty years' uninterrupted user, peaceable, open, and without deception (x). (2) But the owner of land may maintain an action for disturbance of the natural right to support for the surface, notwithstanding buildings • have been erected upon it, provided the weight of the buildings did not cause the injury (y). (1) Thus, in Partridge v. Scott (z), it was said that Right not " rights of this sort, if they can be established at all, must, ex f ure 'lift I'll ',)*<(.' we think, have their origin in grant. If a man builds a house at the extremity of his land, he does not thereby acquire any easement of support or otherwise over the land of his neighbour. He has no right to load his own soil, so as to make it require the support of his neighbour's, unless he has some grant to that effect." So, again, as between adjoining houses, there is no obligation towards a neighbour, •cast by law on the owner of a house, merely as such, to keep it standing and in repair; his only duty being to prevent it from being a nuisance, and from falling on to his neighbour's property (a). (2) But a grant of a right of support for buildings is Right gained by uninterrupted user for twenty years, if the * c< l ui f e< * ^y enjoyment is peaceable and without deception or conceal- years' user. O) Partridge v. Scott, 3 M. & W. 220 ; Brown v. Robins, 4 H. &; N. 186 ; North Eastern Bail. Co. v. Elliott, 29 L. J. Ch. 808. (>) Dal ton v. Angus, 6 App. Cas. 740. •($0 Brown v. Robins, 4 H. & N. 186 ; Stroyan v. Knoioles, Ilamer v. Same, 6 H. & N. 454. (z) Ubi supra. v(«) Chauntlcr v. Robinson, 4 Ex. 163. 242 Private Nuisances. Art. 107. ment, and so open that it must be known that some support is being enjoyed by the plaintiff's building (b). (3) The right of support for an ancient building by adjacent buildings may be acquired by prescription in the same way as may the right of support by adjacent lands (c). Where (4) Though no right of support for a building has been to support gained, yet if the act of the defendant would have caused of site in- the site of the building to subside without the building, the consequent defendant will be liable, not merely for the damage done to damage to the land, but also for the injury caused to the building. house mav be ^ 01 ' ^ le w ^ nave committed a wrongful act (viz., an act recoverable, causing the subsidence of his neighbour's land), and will consequently be liable for all damages which might reason- ably have been anticipated as the consequence of that. act (d). Art. 108. — Disturbance of Right to LigJit and Air. (1) There is no right, ex jure nature?, to the free passage of light to a house or building, but such a right may be acquired by (a) express or implied grant from the contiguous proprietors ; (b) by reservation (express or implied) on the sale- of the servient tenement ; or (c) by actual enjoy- ment of such light for the full period of twenty years without interruption submitted to or acquiesced in for one year after the owner of the dominant tenement shall have had notice thereof, and of the person making or authorising such interruption (e). (/v) Dalton v. Angus, 6 App. Cas. 740. (c) Lcmaitre v. Davis, It) Cli. D. 281. (d) Stroyan v. Knowles, Hamer v. Same, G 11. & N. 454. Qe) 2&3 Will. 4, c. 71,ss.3, 4. Disturbance of Eight to Light and Air. 243 (2) A right to the free access of air through Art - 108 - a particular denned channel, or through a par- ticular aperture, may be acquired (/) in the same way as a right to light. But a right to the free access of air over land to land or buildings at large cannot (it seems) be acquired (g). (3) Where the owner of a house has acquired a right over land to light in respect of any windows in that house, any person who builds on that land so close to those windows as to render the occupation of the house uncomfort- able according to the ordinary notions of man- kind, and (in the case of business premises) as to render it impossible to carry on business therein as beneficially as before, commits a tort (//). (1) Implied grants of easements are generally founded Illustrations. on the maxim, " A man cannot derogate from his own Implied grant." In other words, the grantor of land which is to ^" t ts be used for a particular purpose is under an obligation to abstain from doing anything on adjoining property belonging to him which would prevent the land granted from being used for the purpose for which the grant was made (i). (2) To gain a right by prescription under s. 3 of the Right Prescription Act, 1832 (k), there must be user without the S ained . by 1 » i • prescription, written consent of the owner of the servient tenement, uninterrupted for twenty years, from the time when window spaces are complete and the building is roofed in (I). As, however, by s. 4, nothing is to be deemed an interruption unless submitted to for a year after notice, it has been held {f) Bass v. Gregory, 25 Q. B. D. 481; Cable v. Bryant, [1908] 1 Ch. 259. (//) Webb v. Bird, 13 C. B. (n.s.) 8-11 ; Bryant v. Lefever, 4 C. P. D. 172 [C. A.] ; Ghastey v. Ackland, [1895] 2 Ch. 389 [C A.] ; see S. G, [1897] A. C. 155. (A) Colls v. Home and Colonial Stores, Limited, [1904] A. C. 179. (t) Aldin v. Latimer Clark, Muirhead S' Co., [1894] 2 Ch. 437. (A) 2 & 3 Will. 4, c. 71. (0 Collis v. Laugher, [1894] 3 Ch. 659. R 2 244 Private Nuisances. Art. 108. Right to access of air. Degree of diminution giving rise to an action. that enjoyment for nineteen years and 330 days, followed, by an interruption of thirty-five days just before the action was commenced, was sufficient to establish the right (w). However, for the purposes of commencing an action an inchoate title of nineteen years and a fraction is not sufficient, and no injunction will be granted until the twenty years have expired (n). (3) Actions to prevent, or to claim damages for, inter- ference with ancient lights, are frequently spoken of as cases of light and air, and the right relied on, as a right to the access of " light and air." Most of the cases relate solely to the interference with the access of light, and it has been said that a right to the access of air over the general unlimited surface of the land of a neighbour cannot be acquired by mere enjoyment (o). Thus, in Webb v. Bird (p), it was held that the owner of an ancient windmill could not, under the Prescription Act, prevent the owner of adjoining land from building so as to interrupt the passage of air to the mill. A similar decision was given in Bryant v. Lefever (q), where it was sought to restrain the defendant from building so as to obstruct the access of air to the plaintiff's chimneys. But there seems really to be no difference in principle between easements of light and of air, and a right to the uninterrupted passage of air through a defined aperture, such as a window used for ventilation (r), or a ventilating shaft (s), may be acquired by grant or prescription. (4) Where a right to light has been acquired by express grant, the question whether any substantial infringement of the right has taken place must depend upon the construc- tion of the grant. But where a right has been acquired by implied grant or under the Prescription Act, the owner of O) Flight v. Thomas, 11 A. & E. 6S8 [Ex. Ch.]. («) Lord Battersea v. City of London Commissioners of Sewers. [1895] 2 Ch. 708. 00 Per Cotton, L.J.. Bryant v. Lefever, 4 C. P. D. 172 [C. A.]. See also Chastey v. Aekland, [1895] 2 Ch. 389 [C. A.]; [1897] A. C. L55. O) 13 C. B. (n.s.) 841. (?) Supra. (r) Cable v. Bryant, [1908] 1 Ch. 259. 00 Bass v. Gregory, 25 Q. B. D. 481. Disturbance of Eight to Light and Air. 245 . the right is entitled to prevent any person from building so Art. 108. close to the window in respect of which the light is acquired as to render the occupation of the house in which the window is situated uncomfortable according to the ordinary notions of mankind, and (in the case of business premises) to prevent the owner from carrying on business as beneficially as before (t). The sole question to be determined in deciding whether a right to light has been so far infringed as to give rise to an action is whether the obstruction is so great as to amount to a nuisance (u). It follows, there- fore, that the use of an extraordinary amount of light for twenty years will not give rise to a right to receive that amount of light always, because the question whether an obstruction of light is so great as to be a nuisance cannot be affected by any considerations of what the light has been used for (x). Very generally speaking an obstruction of the light which flows to a window will not be considered a nuisance if the light which remains can still flow to the window at an angle of forty-five degrees with the horizontal, especially if there is good light from other directions as well (y). Art. 109. — Disturbance of Water Bights. (1) Every owner of land on the banks of a natural stream has a right ex jure natures to the ordinary use of the water which flows past his land {e.g., for irrigation, feeding cattle, domestic purposes, etc.). Such an owner may also make use of the water for other purposes than ordinary ones, provided that, in so doing, he does not interfere with the similar rights of other riparian owners lower down the stream (z). (0 Colls v. Home and Colonial Stores, [1904] A. C. 179. («,) Ibid., per Lord Davey, at p. 204. O) Ambler v. Gordon, [1905] 1 K. B. -117. (y) Per Lord LlNDLEY in Colls v. Home and Colonial Stores, [1904] A. C, at p. 210 ; and see Kine v. Jolly, [1905] 1 Ch. 480 [C. A.]. O) Miner v. Gilmour, 12 Moo. P. C. C. 131 ; Embrey v. Owen, 6 Ex. 353. 246 Private Nuisances. Art. 109. (2) An artificial watercourse may have been originally made under such circumstances, and have been so used, as to give to the owners on each side all the rights which a riparian pro- prietor would have had if it had been a natural stream (a). (3) There is, however, no right to the con- tinued flow of water which runs through natural underground channels, which are undefined or unknown, and can only be ascertained by excavation (b). (4) No one has a right to pollute the water percolating under his own land and flowing thence by underground channels into another's land so as to poison the water which that other has a right to use (c). Illustrations. Rights of riparian owners. Disturbance of riparian rights. (1) Every riparian owner may reasonably use the stream for drinking, watering his cattle, or turning his mill, and other purposes connected with his tenement, provided he does not thereby seriously diminish the stream (d). But he has no right to divert the water to a place outside his tenement, and there consume it for purposes unconnected with the tenement (c). (2) If the rights of a riparian proprietor are interfered with, as by diverting the stream or abstracting or fouling the water, he may maintain an action against the wrong- doer for violation of the right, even though he may not be able to prove that he has suffered any actual loss(/). So if one erects a weir which affects the flow of water to O) Baily $ Co. v. Clark, Son and Norland, [1902] 1 Oh. 649 [C. A.] ; Whit in ore's (Edenbridge), Limited v. Stanford, [1909] 1 Ch. 427. (b~) Chasemore v. Richards, 7 H. L. Gas. 349 ; Bradford Corporation v. Frrrand, [1902] 2 Oh. 655. (e) Ballard v. Tomlinson, 29 Ch. 1). 115 [C. A.]. {d) Embvey v. Owen, 6 Ex. 353 ; White (John) $ Sons v. White (J. and it/.), [1906] A. C. 72. (e) McCartney v. Londonderry and Lough S willy Rail. Co., [1904] A.. C 301. CO Wood v. Waud, 3 Ex. 748 ; Embrey v. Owen, 6 Ex. 353 ; Crossley v. Lightowler, L. R. 2 Ch. 478. Disturbance of Water Rights. 247 riparian owners lower down the river, an injunction will Art. 109. be granted (g). (3) But where a riparian owner takes water from a river, and after using it for cooling certain apparatus returns it undiminished in quantity and unpolluted in quality, a lower riparian owner has no right of action. For his only right is to have the water abundant and undefiled, and that right is not infringed (h). (4) The owner of land containing underground water, Abstracting which percolates by undefined channels, or by denned but ™ c Jer ground unascertained channels, and flows to the land of a neigh- bour, has the right to divert or appropriate the water within his own land so as to deprive his neighbour of it(i). The same rule applies to common surface water rising out of springy or boggy ground and flowing in no defined channel (k). (5) But although there can be no property in water Fouling running through underground undefined channels, yet no underground one is entitled to pollute water flowing beneath another's land. Thus, in Ballard v. Tomlinson (T) , where neighbours each possessed a well, and one of them turned sewage into his well, in consequence whereof the well of the other became polluted, it was held by the Court of Appeal that an action lay ; for there is a considerable difference between intercepting water in which no property exists, on the one hand, and sending a new, foreign and deleterious substance on to another's property, on the other. The one merely deprives a man of something in which he has no property, the other causes an active nuisance. O7) Belfast Ropeworhs v. Boyd,21 L. R. Ir. 560 [C. A.]. (/() Kensit v. Great Eastern Bail. Co., 27 Ch. D. 122 [C. A.]. In that case the water was abstracted by a non-riparian owner under a license from a riparian owner. The license however, could not confer any right, as a riparian owner clearly cannot confer on others such rights as he has as riparian owner. But, as the action failed against the non-riparian owner, ■a fortiori it would against a riparian owner taking away water and returning it undiminished and unpolluted. CO Chasemore v. Richards, 7 H. L. Cas. 749 ; Bradford Corporation v. Ferrand, [1902] 2 Ch. 655 ; Bradford Corporation v. Pickles, [1895] A. C. 587, see ante, p. 226. (It) Rawstronv. Taylor, 11 Ex.369. (I) 29 Ch. D. 115. 248 Private Nuisances. Art. 109. Eights in derogation of those of the other riparian pro- T prietors may be gained by grant or prescription (m). Prescriptive rights. Right restricted by the terms of the grant or the extent of the user. Obstruction of rights of way. Art. 110. — Disturbance of Private Rights of Way. (1) A right of way over the land of another can only arise by grant, express or implied, or by prescription, (2) A person commits a tort who disturbs the enjoyment of a right of way by blocking it up permanently or temporarily, or by otherwise preventing its free user. We are here dealing with private rights of way, as dis- tinguished from public rights of way. A public way or highway is a right enjoyed by the public to pass over land. A private right of way is a right one person may enjoy by grant or prescription to pass over another's land, or which an owner of land may have by grant or prescription for himself, his tenants and servants to pass over the lands of another. There may also by custom be a way which can only be lawfully used by the inhabitants of a parish for going to and from the parish church (n). (2) It does not require a permanent obstruction to give rise to a right of action. Thus padlocking a gate(o), or permitting carts or wagons to remain stationary on the road in the course of loading and unloading, in such a way as to obstruct the passage over the road, will give rise to an action (_p) . (w) See Mason v. Hill, 3 B. & Ad. 304 ; Carlyon v. Lowering, 1 H. & N. 784. O) See Brocklebanlt v. Thompson, [1903] 2 Ch. 344. 00 Xidr/ill v. Moor, 9 C. B. 364. (p) Thorpe v. Brumfitt, L. R. 8 Ch. 650. CANADIAN NOTES. 248tt Canadian Notes to Chapter XL of Part II. Nuisance by Interference with Property Rights. If an owner, without obtaining competent advice relies on his own judgment and calculation in building or in making altera- tions or in the repair of buildings, he might reasonably be held negligent. In these matters a prudent man acts only under the supervision of men competent to make calculations and specifi- cations where necessary. So, where the onus is upon the defend- ant to show reasonable precaution he satisfies the onus by prov- ing that he in good faith consulted reputable experts and acted under their supervision and advice. McNerney v. Forrester (1911) 19 W.L.R. 32 (Man.) The Court held in Appleby v. Erie Tobacco Co. (1910), 22 0. L.R. 533, that the defendants' manufactory constituted a nuis- ance, as odors caused material discomfort and annoyance and rendered the plaintiff 's premises less fit for the ordinary purposes of life, even making all possible allowances for the local stand- ard of the neighborhood. Nuisances fall into two classes, those which interfere with the comfort and enjoyment of the property and those which interfere with the value of the property. The occupant may sue in rfigpect of the former. Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533. In such suit an injunction may well be awarded, as damages cannot be an adequate remedy. Ibid. In Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 535, Mid- dleton, J., said: — "In Fleming v. Hislop (1886), 11 App. Cas. 686, the standard set by Knight Bruce, V.C., in Walter v. Selfe (1851), 4 DeG. & S. 315, is accepted by the Lords. In Fleming v. Hislop, 11 App. Cas. at p. 691, the Earl of Selborne states his view of the law thus: 'What causes material discomfort and annoyance for the ordinary purposes of life to a man's house or to his property, is to be restrained . . . although the evi- dence does not go to the length of proving that health is in dan- ger. " Lord Halsbury, at p. 397, states what is substantially the same thing: "What makes life less comfortable and causes sen- sible discomfort and annoyance is a proper subject of injunc- tion." 248a— l.t. 1. 2486 CANADIAN NOTES. An arbitrary standard cannot be set up which is applicable to all localities. There is a local standard applicable in each parti- cular district, but, though the local standard may be higher in some districts than in others, yet the question in each case ulti- mately reduces itself to the fact of nuisance or no nuisance having regard to all the surrounding circumstances. (Colls v. Home and Colonial Stores Limited, [1904] A.C. 179, applied). By common law the occupier and not the owner is bound as between himself and the public, so far to keep buildings in repair that they may be safe for the public ; and the occupier is there- fore prima facie liable to third persons for damages arising from any defect, and until the owner has done something that is equi- valent to taking possession. Earl v. Reid (1911), 23 O.L.R. 453, 465, per Riddell. J. An owner may be liable, although out of possession, if he created or permitted to be created the nuisance complained of, or if the injury complained of was brought about through the defec- tive condition of the premises which it was his duty, under a covenant with his tenant, to repair. Earl v. Reid (1911), 23 O.L.R. 453, 459, per Garrow, J. A. Defendant company connected a drain leading from their pre- mises with a private drain constructed by plaintiff. Hot water and steam, originating on defendant's premises and passing into their drain, flowed back through plaintiff's drain, and overflowed his cellar, and filled his house with steam. It was held, following Fuller v. Pearson, 23 N.S.R. 263, and 21 Can. S.C.R. 337, that defendant was responsible in damages. Andrews v. Cape Bre- ton Electric Co., 37 N.S.R. 105, and see Park v. White, 23 O.R. 611. Disturbance of Lateral Support. A landowner has a right, independent of prescription, to the lateral support of the neighbouring land owned by another, so far as that is necessairy to uphold the soil, in its natural state at its normal level, and also to compensation for damage caused either to the land or to buildings upon the land by the withdrawal of such support. (Hunt v. Peake (1860), Johns, 705, approved and followed. Smith v. Thackerah (1866), L.R. 1 C.P. 564, dis- cussed.) Boyd v. Toronto, 23 O.L.R, 421. CANADIAN NOTES. 248c It is not necessary to prove negligence in the methods of work adopted by the defendants ; the plaintiff 's land and house having been disturbed and changed to a visible, appreciable, and substantial extent by cracks and subsidence, by reason of the withdrawal of lateral support resulting from the trenching oper- ations of the defendants in the street, he was entitled to recover the damages assessed by the julry. Semble, that it would be a proper course, in cases of this kind, to ask the jury whether buildings added to the weight of the land requiring lateral sup- port, and whether the same subsidence would have occurred if the land had been without the buildings. Boyd v. City of Toronto (1911), 23 O.L.R. 421, D.C. If a substantial or appreciable subsidence can be proved, the plaintiff is entitled to nominal damages, quite apart from the amount of actual damage. Boyd v. City of Toronto (1911), 23 O.L.R. 421. i Disturbance of Rights to Light and Air. The rules settled by the courts in case of the interference with ancient ligihts are not applicable to a case where the plaintiff's rights were dependent upon a prior conveyance from the common owner of his lot and the adjoining one, now owned by the defend- ants, the plaintiff being entitled to receive such access of light through his windows as they had at the time of the severance of his lot from that owned by the defendants. Simpson v. Eaton, 15 O.L.R. 161 (D.C). A right to the access and use of light to a house cannot be acquired under the Prescription Act (B.C.), by the lapse of time, during which the owner of the house or his occupying tenant is also occupier of the land over which the right would extend. In an action to establish a right to ancient lights, the burden of proof in the first place is on the plaintiff to show uninterrupted use for twenty years, and then the burden is shifted to the defendant to show such facts as negative the presumption of ancient lights. Feigenbaum v. Jackson and McDonell, 8 B.C.R. 417. Defendant, being the owner of certain land, on the east end of which was a house lighted by windows on the west side, sold and 248(2 CANADIAN NOTES. conveyed part of the land, including that part upon which the house was built, to the plaintiff. The defendant subsequently built a high fence very close to the house, entirely on his own land, but up to the boundary line. The fence cut off the light, and by excluding the air impaired the ventilation, and the snow and ice collected in the narrow space between the fence and the house from which it could not be removed, and when melting in spring the water could not run away, but soaked through the walls of the house.. It was held that the defendant could not derogate from his own grant, and as the plaintiff was thus deprived of that comfortable and reasonable enjoyment of the house which he had a right to expect, an injunction w r as granted restraining the defendant from continuing the fence in such a way as to interfere with that enjoyment. Ruetsch v. Spry, 14 O.L.R. 233 (Riddell, J.). Disturbance of Riparian Rights. A watercourse consists of bed, banks, and water, and, while the flow of the water need not be continuous or constant, the bed and banks must be defined and distinct enough to form a channel or course that can be seen as a permanent landmark on the ground. Wilton v. Murray, 12 Man. R. 35. An occupant or owner of the land has no right to drain into his neighbour's lands the surface water from his own land not flowing in a defined channel. Ibid. Bur v. Stroud, 19 O.R. 10; Ostrom v. Sills, 21 O.A.R. 526, 28 Can. S.C.R. 485; Renwick v. Vermillion Centre, 15 W.L.R. 244 vAlta.). Ownership of land or water, though not enclosed, gives to the proprietor, under the common law, the sole and exclusive right to fish, fowl, hunt, or shoot within the precincts of that private property, subject to game laws, if any, and this exclusive right is not diminished by the fact that the land may be covered by navigable water. In such cases the public can use the water solely for bond fide purposes of navigation and must not unnecessarily disturb or interfere with the private rights of fish- ing or shooting. Where such waters have become navigable owing to artificial public works the private right must be exer- CANADIAN NOTES. 248e cised concurrently with the public servitude for passage. Beatty v. Davis, 20 O.R. 373; Re Provincial Fisheries, 26 Can. S.C.R. 517. The plaintiff's dam across the River Soutamattee was up to the time of the spring freshet of 1904, provided with a slide con- structed in conformity with the requirements of R.S.O. 1897, c. 140, and was in good repair, but part of the slide was carried away and part was damaged and broken by that freshet, which was an unusual one : — Held, upon the evidence, that the injury to the slide could not have been guarded against by the plaintiff, and was the result of vis major; that it was not reasonably prac- tical for the plaintiff to have repaired the slide before the defend- ants' drive of logs and timber coming down the river arrived at the dam ; and that the sluice way did not constitute a convenient opening for the passage of the drive. Held, therefore, that the defendants were in law justified in blowing up the slide and part of the dam in order to remove the obstruction which they offered to the passage of the drive. (Farquaharson v. Imperial Oil Co. (1899), 30 S.C.R. 188, followed. Caldwell v. McLaren (1884), 9 App. Cas. 392, referred to. Ward v. Township of Grenville (1902), 32 S.C.R. 510, distinguished.) James v. Rathbun Co., 11 O.L.R. 271. Disturbance of a Private Right of Way. The effect of section 110 of the Registry Act, R.S.O. 1897, c. 136, whereby after a plan has been registered and a sale or sales made thereunder, the plan is binding upon the persons so regis- tering it, is that it is not irrevocably so, but it may be amended or altered on a proper case being made out. Notice of any pro- posed amendment or alteration must be given to all purchasers thereunder, who are entitled to oppose the amendment or altera- tion. Such application may be made not only by the person reg- istering the plan, but also by a purchaser or anyone claiming under him ; but when it is sought to close a lane laid out on plan the soil of which remains in the person registering it, a purchaser seeking to close the lane must show that he represents the title of the person who registers. Where, therefore, an application was made by the purchaser of lands laid out on a plan situated in a city to close a private lane laid out thereon and the appli- 248a— l.t. 2. 248/ CANADIAN NOTES. cants failed to show that they had acquired the title to the soil in the lane, the application was refused. Re Hamilton Terminal R. W. Co. and Whipple, 14 O.L.R. 117 (C.A.). A railway line passed over the northern half of lots 32, 33 and 34 respectively, of the eighth concession of North Dumfries, having a trestle bridge over a ravine on 34, near the boundary of 33. G., the owner of lot 33 (except the part owned by the railway company), for a number of years used the passage under the trestle bridge to reach a lane on the south half of lot 34, over which he could pass to a village on the west side, his predecessor in title, who owned all these lots, having used the same route for the purpose. The company having tilled up the ravine. G. applied for an injunction to have it reopened: — Held, reversing the judgment of the Court of Ap- peal (Guthrie v. Canadian Pacific. 27 O.A.R. 64), that such user could never ripen into a title by prescription of the right of way nor entitle G. to a farm crossing on lot 34. Canadian Pacific Ry. Co. v. Guthrie, 31 Can. S.C.R. 155. A conveyance of a right of way to a power and light company for a pole line and any other purpose which it may use it for and the sole and absolute possession of the right of way does not divest the grantor of his right to cultivate the right of way in such a manner as will not interfere with the company's poles or pole line. Tarry v. West Kootenay Power and Light Company, 11 B.C.R. 229 (Morrison, J.). Unity of ownership extinguishes all pre-existing easements, such as a private right of way over one part of the land for the accommodation of another part, and nothing in ss. 26 or 45, or in any other provisions of the Land Titles Act, R.S.O. 1897. c. 138, affects the matter. McClellan v. Powassan Lumber Co.. 17 O.L.R. 32; affirmed, 42 Can. S.C.R. 249. The abandonment of an easement may be shown not only from acts done by the owner of the dominant tenement indicating an intention to abandon, but also from acquiescence in acts done by the owner of the servient tenement. Bell v. Golding. 23 O.A.R. 485; and see Mykel v. Doyle; 45 r.C.R. 65; McKay v. Bruce, 20 O.R. 709; Ihde v. Starr. 21 O.L.R. 407. ( 249 ) CHAPTEE XII. TRESPASS TO THE PERSON. In the case of most of the torts which we have hitherto Introductory. considered, there was a wrongful act distinct from the damage to the plaintiff, and which would, if it had not been followed by damage, have given no right of action. But in the case of trespass to the person, and of trespass to land and goods, the wrongful act and the damage resulting from it are practically indivisible. These are what are spoken of in many text books as injuries. They require no proof of damage resulting from the wrongful act. The mere fact that a private right has been infringed without lawful excuse, constitutes of itself both wrongful act and damage, and gives the party affronted a right of action, even although his actual surroundings may have been improved rather than depreciated. Trespass consists in (a) infringements of the right of safety and freedom of the person (trespass to the person) ; (b) infringements of rights of real property (trespass to land) ; and (c) infringements of rights to goods (trespass to goods). Art. 111. — General Liability for Trespass to the Person. (1) Trespass to the person may be by assault, battery, or false imprisonment. (2) Any person who commits a trespass to the person whether by assault, battery, or im- '250 Trespass to the Person. Art. ill. prisonment without lawful justification commits a tort. Ancient classification. Onus of proof. The older writers speak of six kinds of trespasses to the person : threats, assault, battery, wounding, mayhem (or maiming) and false imprisonment. But at the present time it is sufficient to distinguish the three groups above mentioned. Prima facie every hostile interference with the person or liberty of another is wrongful without proof of damage ; but as we shall see, acts which are prima facie trespasses may often be justified. The burden of proof of justification always lies on the defendant. The plaintiff need only prove that without his consent the defendant committed an act which would prima facie amount to a trespass to the person, and it is for defendant to justify if he can. Art. 112. — Definition of Assault. An assault is an attempt or offer to do harm to the person of another, which might have suc- ceeded if persevered in, or would have succeeded but for some accident. Attempt. (1) Thus, if one make an attempt, and have at the time of making such attempt a present prima facie ability to do harm to the person of another, although no harm be actually done, it is nevertheless an assault. For example, menacing with a stick a person within reach thereof, although no blow be struck (a) ; or striking at a person who wards off the blow with his umbrella or walking-stick, would constitute assaults. Threat. (2) But a mere verbal threat is no assault ; nor is a threat consisting not of words but gestures, unless there be a present ability to carry it out. This was illustrated by (a) Read v. Colter, 13 C. B. 850. Definition of Assault. 251 Pollock, C.B., in Cobbctt v. Grey (b). " If," said the Art. 112. learned judge, "you direct a weapon, or if you raise your fist within those limits which give you the means of striking, that may be an assault ; but if you simply say, at such a distance as that at which you cannot commit an assault (c), ' I will commit an assault,' I think that is not an assault." (3) To constitute an assault there must be an attempt. Therefore, if a man says that he would hit another were it not for something which withholds him, that is no assault, as there is no apparent attempt (d). (4) For the same reason, shaking a stick in sport at another is not actionable (c). Art. 113. — Definition of Battery. (1) Battery- consists in touching another's person hostilely or against his will, however slightly (/). (2) If the violence be so severe as to wound, and a fortiori if the hurt amount to a mayhem (that is, a deprivation of a member serviceable for defence in fight), the damages will be greater than those awarded for a mere battery ; but otherwise the same rules of law apply to these injuries as to ordinary batteries. (1) This touching may be occasioned by a missile or any Illustrations instrument set in motion by the defendant, as by throwing water over the plaintiff (g), or spitting in his face, or causing another to be medicallv examined against his or (&) 4 Exch. 729, at p. 744. (c) Query — Battery. (d) Tuberville v. Savage, 1 Mod. Hep. 3. (e) Christophenon v. Blare, 11 Q. B. 473, at p. 477. (/) Bawling s v. Till, 3 M. & W. 28. (g) Pursell v. Mont, 8 A. & E. 602. -ib-2 Trespass to the Person. Art. 113. Friendly touching. Pure accident. Accident in cour.se of doing un- lawful act. her will (h). In accordance with the rule, a battery must be involuntary : therefore a beating voluntarily suffered is not actionable ; for volenti non fit injuria (i). (2) Merely touching a person in a friendly way in order to engage his attention, is no battery (k). (3) An entirely unintentional touching, which is the result of pure accident, does not amount to trespass. "Where one of a shooting party fired at a pheasant and a shot from his gun glanced off a tree and accidentally wounded the plaintiff, a carrier, it was held that there was no trespass (/). But whenever an injury to the person is the result of an act of direct force, it amounts to trespass to the person if it is wrongful, either as being wilful or as being the result of negligence (m). (4) But a touch unintentional and without negligence is an assault if it be done in the course of doing an unlawful act (n). Thus, where a tramway company was authorised by statute to run a steam tramcar on a public road, the statute must be taken to impose on the company a duty to see that the cars and tramway, and all necessary apparatus, are kept in proper condition for this purpose. If they fail to do so, and the tramway be in an improper condition, then, in running their cars on that tramway, they are doing that which they are not authorised to do by their Act. They are only authorised to be on the highway at all by their Act ; and as regards the public, they can only justify using the tramway if they are doing wmat the Act allows them to do. If, therefore (apart from any question of negligence), a car runs on the defective tramway, and injures a passer-by, the company will be liable; for it is a direct injury to the person done in the course of doing an unlawful act, and without justification or excuse (o). (70 Latter v. Braddell and Sutcliffe, 29 W. R. 239. (0 Christoplierson v. Bare, 11 Q. B. 473. (70 Coward v. Baddeley, 28 L. J. Ex. 260. (0 Stanley v. Powell, [1891] 1 Q. B. 86. (»0 Per Bramwell, B., in Holme* v. Mather, L. R. 10 Ex. 261. (?0 Sadler v. South Staffordshire and Birmingham District Steam Tramways Co.. 2:5 Q. B. D. 17 [C. A.]. 00 Ibid. Definition of False Imprisonment. 253 Art. 114. — Definition of False Imprisonment. Art. 114. False imprisonment consists in the imposition of a total restraint for some period, however short, upon the liberty of another, without sufficient lawful justification (yj). The restraint may be either physical or by a mere show of authority. Imprisonment does not necessarily imply incarceration, Moral but any restraint by force or show of authority. For restramt - instance, where a bailiff tells a person that he has a writ against him, and thereupon such person peaceably accom- panies him, that constitutes an imprisonment (q). So, too, it is imprisonment if one is restrained in his own house from leaving a room and going upstairs (r). But some total restraint there must be, for a partial restraint of locomotion in a particular direction (as by preventing the plaintiff from exercising his right of way over a bridge) is no imprison- ment ; for no restraint is thereby put upon his liberty (s). Actual restraint for however short a time constitutes imprisonment — as when a prisoner who has been acquitted was taken down to the cells and detained for a few minutes whilst questions were put to him by the warders (t). It is sometimes difficult to distinguish false-imprisonment False from malicious prosecution. If a person is charged with an imprisonment ,...,. . and malicious offence, and is imprisoned in consequence, an action may prosecution. lie for false imprisonment or malicious prosecution, or both. The distinction, however, is important. It is discussed hereafter. See Art. 118. In addition to the remedy by action, the law affords a Habeas peculiar and unique summary relief to a person wrongfully cor P Ufl - imprisoned, viz., the writ of habeas corpus ad subjiciendum. O) Bird v. Jones, 7 Q. B. 742. () Masper v. Brown, 1 C. P. D. 97. iff) 3 Wils. 18, at p. 19. CANADIAN NOTES. 266a i Canadian Notes to Chapter XII. of Part II. Damages for Assault. An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening, by any act or gesture, to apply force to the person of another, if the person making the threat has, or causes the other to believe, upon reasonable grounds, that he has present ability to effect his purpose, and in either case, without the con- sent of the other or with such consent, if it is obtained by fraud. Cr. Code (1906), sec. 290. Every one is justified in using force in defence of his own person, or that of any one under his protection, from an assault accompanied with insult if he uses no more force than is neces- sary to prevent such assault, or the repetition of it : But this shall not justify the wilful infliction of any hurt or mischief dispro- portionate to the insult which the force used was intended to pre- vent. Cr. Code (1906), sec. 55. Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence. Cr. Code (1906), sec. 53. Every one so assaulted is justified, though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. Cr. Code (1906), sec. 53 (2). A man may repel physical force by physical force in his own protection or in that of his wife, parent or child, but even in such case, he must not go beyond the force reasonably in cf ssary to such protection. Even when assaulted, he may not follow up his assailant and strike him after the danger to himself is past. Circumstances of provocation may be given in evidence, and the jury can and ought to consider them in arriving at the meas- ure of damages. But where there is a clear case of assault, and 206a— l.t. 1. 2666 CANADIAN NOTES. that, too, of an aggravated character, the jury should be directed that such assault is a legal wrong, and that, as a matter of law, the plaintiff is entitled to redress. The jury ought to consider, and ought to be directed to con- sider, all circumstances in mitigation of damages, circumstances which may tend to shew that the defendant did not act as he did out of mere wanton cruelty. Conversely, they ought to con- sider, and ought to be directed to consider, all questions in aggra- vation of damages, such, for instance, as the publication of the occurrence in the newspapers, and all acts of the defendant which the jury might consider ought to be visited with punitive dam- ages. Per Macdonald, C.J.A., in Slater v. Watts (1911), 16 B.C. R. 36, at p. 43. An employer is not responsible for the consequences of an assault committed by a foreman upon a labourer under him aris- ing out of malice or ill-temper. Roth v. Canadian Pacific, 4 Can. Ry. Cas. 238 (Ont. D.C.). False Imprisonment and Malicious Prosecution. If a constable abuses the legal authority conferred upon him by detaining a prisoner an unreasonable time without taking him before a magistrate, or by unnecessarily handcuffing him, he can- not protect himself under the warrant. A constable or peace offi- cer has no right to handcuff an unconvicted prisoner unless he has attempted to escape, or it is necessary to prevent his escap- ing. Hamilton v. Massie, 18 O.R. 585. A verdict against the defendant for malicious prosecution in charging the plaintiff before a magistrate with an assault, where the plaintiff had merely refused on the demand of the defendant to quit the premises upon which he was trespassing, was held to be right, Pockett v. Pool, 11 M.L.R. 275. A justice of the peace who issues his warrant for the arrest of a person charged with felony without the information having been sworn is liable in trespass. McGuinness v. Dafoe, 23 O.A.R. 704; 3 Can. Cr. Cas. 139; and see Sinden v. Brown, 17 O.A.R. 173. The object of the Public Authorities Protection Act, 1 Geo. V. c. 22 (Ont,), is for the protection of those fulfilling a public duty, CANADIAN NOTES. 266c even though, in the performance thereof, they may act irregu- larly or erroneously, and notice of action in such case must allege that the acts were done maliciously and without reasonable and probable cause ; but where a person entitled to the protection of the Act voluntarily does something not imposed on him in the discharge of any public duty, such notice is not required. Kelly v. Archibald, Kelly v. Barton, 26 O.R. 608, and 22 O.A.R. 522 ; Coffey v. Scane, 22 O.A.R. 269 ; Moriarity v. Harris, 10 O.L.R. 610. The notice of action against a magistrate should set forth the substantial ground of complaint, and should specify the time and place of the commission. Bond v. Conmee, 16 O.A.R. 398 ; Sin- den v. Brown, 17 O.A.R. 173. A conviction not invalid on its face and not set aside protects a magistrate against a trespass action. Gates v. Devenish, 6 U.C. R. 260. But although a conviction is not quashed, yet if it is bad on the face of it, an action will lie for trespass. Gray v. McCarty, 22 U.C.R. 568 ; Graham v. McArthur, 25 U.C.R. 478 ; Cummins v. Moore, 37 U.C.R. 130 ; and Cross v. "Wilcox, 39 U.C. R. 187. A complainant who in good faith lays an information for an offence unknown to the law before a magistrate, who thereupon without jurisdiction convicts and commits the accused to gaol, is not liable to an action for malicious prosecution, the essential ground for such an action being the carrying on maliciously and without prdbable cause of a legal prosecution. Grimes v. Millar, 23 O.A.R. 761. ! Amending a conviction made by a justice is not quashing it, and in such a case trespass will not lie against the justice. Mc- Lellan v. McKinnon, 1 O.R. 219. "Where a man is himself assaulted by a person disturbing the peace in a public street, he may arrest the offender and take him to a peace officer to answer for the breach of the peace. Fores- ter v. Clarke, 3 U.C.R. 151 ; Reid v. Inglis, 12 U.C.C.P. 191. In order to succeed in an action for false and malicious arrest under civil process, the plaintiff must allege and prove that the defendant obtained the order for arrest by some deception prac- tised on the Judge ; that he either stated or suggested something 2664 CANADIAN NOTES. that was untrue, or omitted to state something within his know- ledge that was material and which would or might have caused the Judge to refuse to grant the order ; and also that in applying for the order the defendant acted maliciously, and made the affi- davit for the arrest without reasonable and probable cause. ( Cof- fey v. Scane (1894-5), 25 O.R. 22, 22 A.R. 269, followed.) Fit- chet v. Walton, 22 O.L.R, 40. In a recent Saskatchewan case, the defendant was a police con- stable in a city ; without a warrant he arrested the plaintiff for a breach of a by-law of the city, and the plaintiff brought this action for assault and false imprisonment: — Held, that the direc- tion to the jury that the defendant had a right without a warrant to arrest the plaintiff if he found him committing a breach of a city by-law, was erroneous; and a verdict for the defendant founded thereon was set aside. The power of a constable to make arrests without warrant depends either on the common law or on statute. At common law he may arrest a person whom he finds committing a felony, misdemeanor, or breach of the peace, or whom on reasonable grounds he suspects of having committed a felony ; and by the Criminal Code, s. 648, he may arrest any per- scon whom he finds committing a criminal offence. But neither at common law nor by statute is there any authority for arrest- ing a person without warrant found committing a breach of a city by-law. S. 35 of the Criminal Code protects a constable only in cases in which he is authorized to make an arrest. Held, also, that, there being nothing in the by-law which authorized the defendant to arrest the plaintiff, the defendant was not acting under its provisions, and was not protected by s. 404 of the City Act, Plestid v. McLeod, 15 W.L.R. 533; 3 Sask. R, 374. A municipal corporation cannot be made to answer in damages for the unlawful acts of one of its police officers while attempting to perform a public duty. The plaintiff, who was temporarily in the town of C, collecting subscriptions for a newspaper pub- lished in the city of S., was arrested by a police officer of the town for a breach of one of its by-laws, which required all persons who were not ratepayers of the town or non-residents of the county of N., to pay a license fee before engaging in any calling, occupation or employment in the said town. The arrest was made by the offi- CANADIAN NOTES. 266e cer without any warrant, and the plaintiff was only released upon his paying to the town treasurer the fee demanded, which was retained. In an action for false imprisonment against the town for the alleged unlawful arrest by the police officer, it was held, following McCleave v. The City of Moncton (35 N.B.R. 296 and 32 S.C.R. 106), that, assuming the arrest to have been unlawful, the doctrine of respondeat superior did not apply, and the town was not liable. Held, further, that the fact that the police officer, in making the arrest, was endeavouring to enforce a by- laAv of the town made for revenue purposes only was not suffi- cient to take this case out of the rule laid down in the Mc Cleave case ; and that the payment of the license fee to the town treas- urer, and its retention by him, in the absence of any evidence of knowledge on the part of the town of the circumstances surround- ing such payment and retention, was no proof of any intention on the part of the town to ratify the acts of the police officer. Woodforde v. Town of Chatham, 37 N.B.R. 21. In an action for false imprisonment where the justice who issued the w r arrant acted wholly without jurisdiction, proof of malice or want of probable cause is unnecessary. A complaint in writing under oath for a search warrant under which a war- rant was issued, and goods named therein were found in the pos- session of the accused, will not justify arrest without any further or other complaint, The expense to which a party complaining may have been put by an illegal arrest is a proper element of damage. Melanson v. Lavigne, 37 N.B.R. 539. When Civil Action for Assault Barred by Criminal Proceedings. A justice of the peace or police magistrate, as the case may be, has a general jurisdiction to hear and determine any case of assault or battery, except where any question arises as to the title to any lands, tenements, hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insol- vency, or any execution under the process of any court of justice. Code, sees. 709, 732. 266/ CANADIAN NOTES. If the justice upon the hearing of any case of assault or battery upon the merits where the information is laid by or on behalf of the person aggrieved, deems the offence not to be proved, or finds the assault or battery to have been justified, or so trifling as not to merit any punishment, he shall dismiss the complant and shall forthwith make out a certificate under his hand stating the fact of such dismissal, and shall deliver such certificate to the person against whom the complaint was preferred. Cr. Code (1906), sec. 733. / If the person against whom any such information has been laid, by or on behalf of the person aggrieved, obtains such certificate, or, having been convicted, pays the whole amount adjudged to be paid or suffers the imprisonment, or imprisonment with hard labour, awarded, he shall be released from all further or other proceedings, civil or criminal, for the same cause. Cr. Code (1906), sec. 734. Section 734 applies to bar the civil action, only where the charge is triable summarily under sec. 732 without regard to the consent of the accused, and does not have that effect where the charge is under sec. 295 for assault occasioning actual bodily harm. Nevills v. Ballard (1897), 1 Can. Cr. Cas. 434 (Ont.) ; Grantillo v. Caporici (1899), 16 Que. S.C. 44. Section 734 does not apply to bar a civil action for assault after conviction and payment of the fine, where such conviction is by a petit jury on a trial upon an indictment. Clermont v. Lagace (1897), 2 Can. Cr. Cas. 1. On a charge of shooting and wounding with intent, the jus- tices holding a preliminary enquiry cannot, of their own motion, vary or reduce the charge to one of common assault and so acquire jurisdiction to adjudicate thereupon. Miller v. Lea (1898), 2 Can. Cr. Cas. 282. A certificate of conviction by jus- tices for common assault under those circumstances, and the pay- ment of the fine imposed, do not bar a civil action by the injured party for damages against the wrongdoer, and this section does not apply. Ibid. "Where a magistrate invested with the powers of two justices tries a case of aggravated assault under the summary trials pro- cedure with the consent of the accused (Cr. Code, sees. 773 and CANADIAN NOTES. 266(7 778), the conviction is a bar to further criminal proceedings for the same cause (Cr. Code, sec. 792), but not to a civil action for damages. The provisions of sec. 734 do not apply to such a case. Clarke v. Rutherford (1901), 5 Can. Cr. Cas. 13 (Out.). The civil action for damages is not barred by payment of the fine, if the complaint inlthe criminal proceedings was laid by a peace officer in his official capacity and not by the party assaulted, and if the latter took no part in the proceedings other than to give testimony. Goodwin v. Hoffman, 15 Can. Cr. Cas. 270. ( 267 ) CHAPTEE XIII. OF TRESPASS TO LAND AND DISPOSSESSION. SECTION I.— OF TEESPASS QUABE CLAUSUM FBEGIT. Art. 126. — Definition. Trespass quare clausum /regit is a trespass committed in respect of another man's land, by entry on the same without lawful authority. It constitutes a tort without proof of actual damage. (1) Thus, driving nails into another's wall, or placing Illustrations, objects against it, are trespasses (a) ; or fox hunting across land against the will of the owner (6). (2) So, it is generally a trespass to allow one's cattle to Trespass of stray on to another's land. Thus, where the plaintiff's ca e ' mare was injured by the defendant's horse biting and kicking her through the fence separating plaintiff's and defendant's land, it was held that this was a trespass for which the defendant was liable apart from any question of negli- gence (c). (3) Where one has authority to use another's land for a Exceeding- particular purpose, any user going beyond the authorised autnont y- purpose is a trespass. (4) So, where a public highway runs across the lands of a landowner, the soil of which is vested in the owner, a ( Butcher v. Butcher, 7 B. & C. 399, at p. 402. 0) Anderson v. Radcliffe, El. Bl. & EI. S06 ; Ocean Accident and Lruarantee Corporation v. Ilford Gas Co., [1905] 2 K. B. 493 [0. A.]. (a) Cox v. Mouseley, 5 C. B. 533, at p. 546. (?>) Cox v. Glue, 17 L. J. C. P. 162. (0 Key se v. Powell, 22 L. J. Q. B. 305. •J&* G °°foMe ▼• Alker, 1 Burr. 133 ; Northampton Corporation v Ward, 1 Wils. 114. 0) Beery v. Smith, 26 L. J. Ex. 344 ; and see Art. 126, Illustration 4 supra. ' 272 Of Trespass to Land and Dispossession. Art. 129. Art. 129. — Trespasses by Joint Owners. Joint tenants, or tenants in common, can only sue one another in trespass for acts done by one inconsistent with the rights of the other (/). Ordinary (1) Among such acts may be mentioned the destruction jom loceis. Q ^ buildings (<7), carrying off of soil (/i), and expelling the plaintiff from his occupation (/). Co-owners (2) But a tenant in common of a coal mine may get the of mines. coal, or license another to get it, not appropriating to him- self more than his share of the proceeds ; for a coal mine is- useless unless worked (k). Party-walls. (3) There is also one other important case of trespass between joint owners, viz., that arising out of a party-wall. If one owner of the wall excludes the other owner entirely from his occupation of it (as, for instance, by destroying it, or building upon it), he thereby commits a trespass ; but if he pulls it down for the purpose of rebuilding it, he does not(Z). Art. 130. — Limitation. All actions for trespass to land must be com- menced within six years next after the cause of action arose (m) ; but when a trespass is con- tinuing, there is a new cause of action constantly arising, and the plaintiff may bring successive actions until the trespass ceases (n). (/) See Jacobs v. Seward, L. R. 5 H. L. 464. (7/) Oresswell v. Hedges, 81 L. J. Ex. 497. (/() Wilkinson v. Haygarth, 12 Q. B. 837. (/) Murray v. Hall, 7 C. B. 441. (70 Job v. Potton, L. R. 20 Eq. 84. (/) Stedman v. Smith, 26 L. J. Q. B. 314 ; Cubitt v. Porter, 8 B. & C r 257. («/) Limitations Act, 1623 (21 Jac. 1, c. 16), s. 3. («) Bowyer v. Cook, 4 C. B. 236. Kemedies other than by Action. 273 Art. 131. — Kemedies other than by Action. Art 131 (1) One who is in possession of land may forcibly turn out another who wrongfully enters, using no more force than is reasonably necessary. (2) When animals or other chattels are wrong- fully upon land the person in possession may distrain them damage feasant. As to forcibly ejecting a trespasser, see ante, Art. 116. Comment. In the case of animals or other chattels found trespassing, Distress the law gives the person in possession of the land the right damage to seize and detain them in order to compel the owner to make reasonable compensation for the damage done (o). There is no power of sale ; and the power of detention is only in respect of the actual damage done by the offending animal, either to the land itself or to other animals on the land (such as damage caused by one horse kicking another) (p). This remedy is not, however, available where animals are being actually tended ; in such case the person injured must bring his action. A somewhat analogous remedy is allowed in the case of animals ferce naturcB reared by a particular person. In such cases the law, not recognising any property in them, does not make their owner liable for their trespasses, but any person injured may shoot or capture them while trespassing. Thus, at common law, I may kill pigeons coming upon my land, but I cannot sue the breeder of them (q). 00 See Green v. Duokett, 11 Q. B. D. 275. O) Boden v. Roseoe, [1894] 1 Q. B. G08. («/) Hannam v. MocJtett, 2 B. & C. 934, per Bayley, J. But the killing may amount to a criminal offence by the Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 23. 274 Of Trespass to Land and Dispossession. Art. 132. SECTION II.— OF DISPOSSESSION. Specific remedy. Art. 132. — Definition. Dispossession or ouster consists of wrongfully withholding the possession of land from the rightful owner. Before the Judicature Act, 1873, the remedy for this wrong was by an action of ejectment, and since that statute it is by an action for the recovery of land wherein the plaintiff claims possession of the land. A successful plaintiff gets a judgment for possession and mesne profits, i.e., damages for the profits of the land which the plaintiff has lost whilst the defendant was wrongfully in possession, and for any damage done to the land by him whilst he was in possession. Possession prima facie evidence of title. Title of successful claimant need not be indefeasible. Art. 133.— Onus of Proof of Title. The law presumes possession to be rightful, and therefore the claimant must recover on the strength of his own title, and not on the weak- ness of the defendant's (r). (1) Thus, mere possession is prima facie evidence of title until the claimant makes out a better one (s). (2) But where the plaintiff makes out a better title than the defendant, he may recover the lands, although such title may not be indefeasible. Thus, where one inclosed waste land, and died without having had twenty years' possession, the heir of his devisee was held entitled to recover it against a person who had entered upon it without any title {t). (r) Martin v. Strachan, 5 Term Rep. 107. (*) Doe d. Smith v. Webber, 1 A. & E. 119. (0 Asher v. Whitlock, L.R. 1 Q. B. 1. Onus of Proof of Title. 275 (3) Conversely, a man in possession who may not have Art. 133. an indefeasible title as against a third party, may yet have Jug t ^TT_ a better title than the actual claimant, and therefore he may set up the right of a third person to the lands, in order to disprove that of the claimant (u). But the claimant cannot do the same, for possession is, in general, a good title against all but the true owner (a;). (4) Where the relation of landlord and tenant exists Exceptions, between the plaintiff and defendant, the landlord need not Landlord prove his title, but only the expiration of the tenancy ; for an< a tenant cannot in general dispute his landlord's title (y), unless a defect in the title appears on the lease itself (z). But nevertheless he may show that his landlord's title has expired, by assignment, surrender, or otherwise (a). The principle does not extend to the title of the party through whom the defendant claims prior to the demise or con- veyance to him. Thus, where the plaintiff claims under a grant from A. in 1818, and the defendant under a grant from A. in 1824, the latter may show that A. had no legal estate to grant in 1818 (b). (5) The same principle is applicable to a licensee or Servants and servant, who is estopped from disputing the title of the licensees, person who licensed him (c). O) Doe d. Carter v. Barnard, 13 Q. B. 94.5. (./•) Asherv. Whitlock,L. R.l Q. B. 1 ; Richards v. Jenkins, 17Q. B. D. 544. (//) Delaney v. Fox, 26 L. J. C. P. 24S. (z) Saunders v. Merry weather, 35 L. J. Ex. 115 ; Doe d. Knight v. Smythe, 4M.&S. 347. (a) Dor d. Marriott v. Edwards, 5 B. & Ad. 1065 ; Walton v. Water- house, 1 Wms. Saund. 420. (ft) Doe d. Oliver v. Powell, 1 A. & E. 531. (p) Doe d. Johnson v. Baytttp, 3 A. & E. 188 ; Turner v. Doe d. Bennett, 9 M. & VV. 643 [Ex. Cb.j. t 2 '270 Of Trespass to Land and Dispossession. Art. 134. Art. 134. — Limitation. Exceptions Disability. Acknow- ledgment of title Ecclesiastical corporations. No person can bring an action for the recovery of land or rent but within twelve years after the right to maintain such action shall have accrued to the claimant, or to the person through whom he claims (d). (1) Where claimants are under disability, by reason of infancy, coverture, or unsound mind, they must bring their action within six years after such disability has ceased : provided that no action shall be brought after thirty years from the accrual of the right (e). (2) When any person in possession of lands or rents gives^ to the person, or the agent of the person entitled to such lands or rents, an acknowledgment in writing and signed, of the latter's title, then the right of such last-mentioned person accrues at, and not before, the date at which such acknowledgment was made, and the statute begins to run as from that date (/). (3) The period in the case of ecclesiastical and eleemosy- nary corporations is sixty years (g). Art. 135. — Commencement of Period of Limitation. The right to maintain ejectment accrues, (a) in the case of an estate in possession, at the time of dispossession or discontinuance of pos- session of the profits or rent of lands, or of the 07) 37 & 38 Vict. C. 57, s. 1. replacing 3 k 4 Will. 1, C. 27. s. 2 : Brassington v. Llewellyn, 27 L. J. Ex. 297. The owner of the legal estate liiu-t. however, be a party to the action (Allen v. Woods, 68 L. T. 143 [C. A.]). 00 37 & 38 Vict. c. 57, ss. 3—5, replacing 3 & 4 Will. 4, c. 27, es. 16, 17. (/) Ley v. Peter. -11 L. J. Ex. 239. (<7) 3 & 4 Will. 4, c. 27, s. 29. Commencement of Period of Limitation. 277 death of the last rightful owner (h) ; and, (b) in Art. 135. respect of an estate in reversion or remainder or other future estate or interest, at the determina- tion of the particular estate. But a reversioner or remainderman must bring his action within twelve years from the time when the owner of the particular estate was dispossessed, or within six years from the time when he himself becomes entitled to the possession, whichever of these periods may be the longer (/). (1) Discontinuance does not mean mere abandonment, Diseontinu- but rather an abandonment by one followed by actual ance - possession by another (k). Therefore, in the case of mines, where they do not belong to the surface owner, the period cannot commence to run until someone actually works them ; and even then it only commences to run qud the vein actually worked (/). (2) No defendant is deemed to have been in possession Continual of land merely from the fact of having entered upon it ; and, *£; lon ° f on the other hand, a continual assertion of claim preserves no right of action (;»). Therefore, a man must actually bring his action within the time limited ; for mere assertion of his title will not preserve his right of action after adverse possession for the statutory period. As to what acts con- stitute dispossession, see Littledale v. Liverpool College («). (//) 3 & 4 Will. 4, c. 27, s. 3. (0 37 & 38 Vict, c. 57, s. 2. (ft) See Smith v. Lloyd, 23 L. J. Ex. 194 ; Cannon v. Rimincjton, 12 C. B. 1. (V) See Low Moor Co. v. Stanley Coal Co., 34 L. T. 18G, 187; Ashton v. Stock, 6 Ch. I). 726. (///) 3 & 4 Will. 4, e. 27, ss. 10, 11. O) [1900] 1 Ch. 19 [C. A.]. CANADIAN NOTES. 278a Canadian Notes to Chapter XIII. of Part II. Actions for Possession of Land and for Trespass. Actual occupation of land is not essential to give a right to maintain trespass by one who has the legal title. It is sufficient that he enter upon the land so as to put himself in legal posses- sion of it. Donovan v. Herbert, 4 O.R. 635 ; Adamson v. Adam- son, 7 O.A.R. 592 ; Baker v. Mills, 11 O.R. 253 ; Binyea v. Rose, 19 O.R. 433 ; McConaghy v. Denmark, 4 Can. S.C.R. 609 ; West- ern Bank of Canada v. Greey, 12 O.R. 68. The mere enclosure of the land of another, by the adjoining proprietor, by a fence put up with the consent of and by arrange- ment with the owner, for the purpose of protecting the lands of hoth against cattle, does not dispossess the owner, nor prevent him from maintaining trespass against anyone intruding therein, or using his land for purposes other than that for which it was enclosed. Brookman v. Conway, 35 N.S.R. 462, affirmed Conway v. Brookman, 35 Can. S.C.R, 185. But mere possession is prima facie evidence of title until the claimant makes out a better one. Davison v. Burnham, Cassels' S.C. Digest, 515; Gates v. Davison, 5 Russ. & Geld. 431; Cassels' S.C. Digest, 516. For trespasses by domestic animals, such as horses, cattle and pigs, the owner of the close may maintain trespass against the owner of the animals, unless the latter can excuse the act for defect ofLfenftPs- Blacklock v. Milliken, 3 U.C.C.P. 34; Mason v. Morgan, 24 U.C.R. 328. The provision in s. 4 of the Boundary Lines Act, R.S.M. c. 12, viz.: "Each of the parties occupying adjoining tracts of land shall make, keep up and repair a just proportion of the division or line fence on the line dividing such tracts and equally on either side thereof, ' ' does not supersede the common law liability of an owner of cattle for all their trespasses except such as are due to defects in fences which the complainant is bound as between him- self and such owner to keep up ; and such OAvner will be liable for the trespasses committed by his cattle unless it is shown that the complainant was bound to keep up and repair the particular part 278a— l.t. 1. 2786 CANADIAN NOTES. of the fence through which the cattle entered. The common law rule is not displaced by a joint liability to keep up fences. Gar- rioch v. McKay, 13 Man. R. 404. The plaintiff and defendant, adjoining land owners, made an arbitrary division of the line fence between their lots, whicn wa,« less than five feet in height, which they were to build and keep in repair. By reason of the defendant allowing his portion to get into disrepair, his cattle and sheep got on to the plaintiff's land, and damaged it. The defendant also allowed his cattle to escape and run at large on the highway, from whence, by breaking down the plaintiff 's fences, they got on to the plaintiff 's land, and fur- ther damaged it. A township by-law provided that no fence should be less than five feet high, etc., and prohibited the running at large of all breachy cattle, i.e., cattle known to throw down or leap over any fence four feet high, and provided for impounding them. It was held that the defendant was liable for the damages sustained by the plaintiff; and that such liability was not dis- placed by the by-law. Barber v. Cleave (1901), 2 O.L.R. 213. An ice company in harvesting ice from navigable waters at a distance from the shore may use any reasonable means of convey- ing it to their ice houses, and for that purpose may cut a channel through private water lots through which to float the ice. Lake Simcoe Ice and Cold Storage Co. v. McDonald, 31 Can. S.C.R. 130, reversing 26 O.A.R. 411. In an action to compel the defendants to remove a wall, it was held that if the wall, which had been added to or built upon the original party wall, could be called an external wall, there was the right to put windows in it ; if the extension or addition had the character of a party wall and w r as to be so designated, the windows were a derogation from that method of construction. By the contract between the parties, the original wall might be after- wards built upon and added to by a further party wall, which might be used by the party who did not build it as a party wall. But, whether he elected to use it or not, the addition to the party wall was. in the contemplation of the parties, to retain its char- acter as a party wall ; and to attach any other character to it by constructing it with openings or windows was in violation of the contract. (Sproule v. Stratford, 1 Ont. 335, followed.) Brennan v. Ross, 1 O.W.N. 1014. CANADIAN NOTES. 278c Since the fusion of common law and equity the damages assessed against a number of joint tort feasors need not always be the same for all, but, if one of them is responsible for only a part of the total wrong done and the liability, though joint as to all at the time of the commencement of the action, arose at dif- ferent dates, there may be a verdict against the one for that part and against the rest for the total amount of damage committed. Copeland-Chatterson Co. v. Business Systems Ltd. (1906). 11 O.L.R. 292; Stewart v. Teskee, 20 Man. R. 167. Where a public authority having the power on certain condi- tions to do acts winch otherwise would be an invasion of private property fails to observe the prescribed conditions upon which alone the power is exercisable, "form" is "substance," and the municipality by their unauthorized demolition of the plaintiff's house will bring themselves under a liability to pay the damages the plaintiff has suffered by reason of their act. Riopelle v. City of Montreal (1911), 44 Can. S.C.R. 579. ( 279 ) CHAPTEE XIV. TRESPASS TO GOODS, DETENTION AND CONVERSION OF GOODS. Art. 136. — Definitions. There are three specific torts in respect of the possession of goods : (i) Trespass, which consists in wrongfully taking goods out of the plaintiff's pos- session, or forcibly interfering with them whilst they are in his possession ; (ii) Detention of goods or detinue, which con- sists in wrongfully detaining from the plaintiff goods to the immediate posses- sion of which he is entitled ; (iii) Conversion, which consists in the defen- dant's wrongfully converting to his own use goods to the possession of which the plaintiff is entitled, by taking them away, detaining them, destroying them, delivering them to a third person, or otherwise depriving the plaintiff of them. Note. — The ancient causes of action for torts to goods were trespass and detinue. The action of " trover and conversion " was invented later, and was founded on the fiction that the defendant had found the plaintiff's goods and converted them to his own use. The broad distinction between trespass on the one hand and conversion and detinue on the other hand, is that trespass 280 Trespass to Goods, etc. Art. 136. Trespass. Detinue for return of goods. Conversion for damages. is the only cause of action where the goods interfered with remain in the possession of the plaintiff ; whereas an action for conversion or detention lies when the plaintiff is wrong- fully deprived of the possession of his goods by the defendant. Trespass may be the result of an intentional conscious act of taking or touching goods, or may be the result of mere negligence. So where A. drives his carriage so negligently that it collides with B.'s carriage, this is a trespass (a), just as, if he collides with B.'s person, it would be trespass to the person. But it seems that there must be either intention or negligence, and a merely accidental touching does not constitute trespass (b). The principal distinction between detention and con- version is in the remedy sought. When the defendant has got possession of the plaintiff's goods (whether wrongfully in the first instance, or by keeping them wrongfully after having lawfully obtained possession) the plaintiff can sue either for wrongful deten- tion or for conversion, but generally an action for detention is brought where the defendant is at the time of action brought in wrongful possession of specific goods, such as a horse or a picture, which the plaintiff wishes to have returned to him. Conversion is the appropriate remedy where the plaintiff seeks merely to recover as damages the value of goods of which the defendant has deprived him. Thus, it is the proper remedy where the defendant no longer has posses- sion of the goods, or where they cannot be identified, such as so many bushels of corn, or so much coal. Actions for conversion or detention of goods are often brought to try title to goods, and, if the plaintiff proves his title, it is no defence that the defendant thought he himself had a good title. Thus, a person who buys A.'s goods from B. (thinking they are B.'s), and then, quite innocently, sells them to C, is guilty of a conversion, as also is C. if he refuses to give them up, or consumes them. («) Lotan v. Cross, 2 Camp. 4G4. (fc) See ante, Art. 3. Definitions. 281 A trespass may be justified as being clone in self defence Art. 136. or in exercise of a right, or in other ways illustrated by the Juatification> examples below. (1) If one draws wine out of a cask and fills up the Illustrations. deficiency with water, he converts the whole cask. He converts the wine he draws out by taking it, and the remainder by turning it into something different, and so destroying it (c). (2) So, again, if a sheriff sells more goods than are Excessive reasonably sufficient to satisfy a writ of fieri facias, he will execution, be liable for a conversion of those in excess (d). (3) Beating the plaintiff's dogs is a trespass (c). Injuring K ' o j. <-> animals. (4) The innocence of the trespasser's intentions is im- intention material. Thus, where the sister-in-law of A., immediately immaterial, after his death, removed some of his jewellery fi'om a drawer in the room in which he had died to a cupboard in another room, in order to insure its safety, and the jewellery was subsequently stolen, it was held that the sister-in-law had been guilty of a trespass, and that it was no defence that she had removed the goods bona fide for their preserva- tion, and she was consequently held liable for nominal damages. It was suggested, however, that if the removal was in fact reasonably necessary for their preservation and was carried out in a reasonable manner, that might have been a good defence (/). Bat, on the other hand, the finder of a lost chattel does not commit a tort by merely warehousing or otherwise safeguarding it for a reasonable time until the true owner be discovered, so long as he is not unnecessarily officious (g). (5) Again, where the owner of household furniture assigned it by bill of sale to the plaintiff, and subsequently employed the defendants (who were auctioneers) to sell it for her by auction, and they sold and delivered 2)osse$sioii (c) Richardson v. Atkinson, 1 Stra. 576. (d) Aldred v. Constable, 6 Q. B. 370, at p. 381. (e) Daiul v. Sexton, 3 Term 'Hep. 37. (/) Kirk v. Gregory, 1 Ex. D. 55. (iy) See per BLACKBURN, J., in Hollins v. Fowler, L. R. 7 H. L. 757, at p. 766. 282 Tkespass to Goods, etc. Conversion by innocent purchaser. Art. 136. to the purchaser from them, they were held liable, although they knew nothing of the bill of sale (/;). It is important, however, to note that the tort there was the delivering of the furniture to the purchaser, and not the mere selling of it (i). (6) So the purchaser of a chattel takes it, as a general rule, subject to what may turn out to be defects in the title (/). Thus, in the leading case of Hollins v. Fowler (k), it was laid down that any person who, however innocently, obtains possession of the goods of a person who has been fraudulently deprived of them, and disposes of them, whether for his own benefit or that of any other person, is guilty of a conversion. (7) Where, however, the true owner has parted with a chattel to A. upon an actual contract, though there may be circumstances which enable that owner to set the contract aside for fraud, yet a bona fide purchaser from A. will obtain an indefeasible title (I). (8) To this rule, however, there is an exception, that market overt. a ga i e f g 00( j s } n market overt gives a good title to the purchaser, although the seller has no title. So a purchaser in market overt cannot be sued in an action for conversion if he parts with the goods or refuses to give them up on demand. But this rule only protects the purchaser, and the seller in open market is guilty of conversion by selling and delivering goods to which he has no title (to). The sale must be an open sale in a lawfully constituted market, and made according to the usages of the market. By special custom all shops in the city of London are market overt Sale in (70 Consolidated Co. v. Curtis $ Son, [1892] 1 Q. B. 495. (v) See Lancashire Wagon Co. v. Fitzhugh, 6 H. & N. 502 ; and per Brett, J., in Fowler v. Boll ins, L. K. 7 Q. B. 616 [Ex. Ch.], at p. 627. O") Sale of Goods Act. 1893, s. 21, unless it be a negotiable security (as to which see Glyn, Mills S{ Co. v. East and West India Dock Co., 7 App. Cas. 591, and Sale of Goods Act, 1893, s. 25 (2)) ; or unless he buy it in market overt (Sale of Goods Act, 1893, s. 22), and not even then if it was stolen and the thief had been prosecuted to conviction {ibid., s. 24). (7.) L. R. 7 H. L. 757. (/) Sale of Goods Act, 1893, s. 23. (i») Peer v. Humphrey, 2 A. & E. 495 ; Ganley v. Ledwidge, 14 L. K. Ir. 31 [C. A.]. Definitions. 283 between sunrise and sunset for the sale of goods of the Art. 136. kind which by the trade of the owner are there put for sale by him. But the sale must be by the shopkeeper not to him, and it must take place in the open part of the shop, not in a room at the back [n). Of this common law exception there is, however, a Revesting on modification by statute, first enacted by 21 Hen. 8, c. 11, P f°S tion and now contained in s. 24 of the Sale of Goods Act, 1893, viz., that where goods are stolen and the thief is prosecuted to conviction, the property revests in the original owner, notwithstanding a sale in market overt. But note that until the conviction of the thief the property is in the person who has acquired it by sale in market overt, and no act of his before the conviction of the thief is a conversion. So, where the plaintiff's sheep were stolen and sold in open market to the defendant, and the defendant then resold and delivered them to another, and subsequently the thief was prosecuted and convicted, though the property then revested in the plaintiff, he had no remedy against the defendant. For when the defendant sold the sheep they were his, not having then revested in the plaintiff (o). (9) It is a good justification that the trespass was the Justification, result of the plaintiff's own negligent or wrongful act. Thus, if he place his horse and cart so as to obstruct my right of way, I may remove it, and use, if necessary, force for that purpose (p). (10) A trespass committed in self-defence, or defence of Self-defence property, is justifiable. Thus, a dog chasing sheep or deer or defence of in a park, or rabbits in a warren, may be shot by the owner of the property in order to save them, but not otherwise (q). But a man cannot justify shooting a dog, on the ground that it was chasing animals ferae natures (r), unless it was chasing game in a preserve, in which case it seems that it may be shot in order to preserve the game, but not after the O) Hargreave v. Spink, [1S92] 1 Q. B. 25. (o) Norwood v. Smith, 2 Term Rep. 750. O) Slater v. Swam, 2 Stra. 872. (//) Wells v. Head, i C. & P. 568. (r) Vere v. Lord Cawdor, 11 East, 568. '284 Trespass to Goods, etc. Art. 136. In exercise of right. Legal authority. game are out of danger (s). So, too, though I may use reasonable force to remove trespassing animals from my land, I am liable in trespass if I use an unreasonable amount of force, as, for instance, by chasing trespassing sheep with a mastiff dog (t). (11) A trespass committed in exercise of a man's own rights is justifiable. Thus, seizing goods of another, under a lawful distress for rent or damage feasant, is lawful. (12) Due process of law is a good justification, as, for example, an execution under a writ of fieri facias (u). Art. 137. — Possession necessary to maintain an Action for Trespass. (1) To maintain an action for trespass to goods, the plaintiff must at the time of the trespass have been in possession of the goods. (2) Any possession however temporary is sufficient against a wrongdoer. (3) Although he cannot maintain an action for trespass, the person entitled to the reversion of goods may maintain an action for any permanent injury done to them (x). Possession. To enable him to bring an action for trespass, the plaintiff need not have actual physical possession ; it is enough if the goods are in the physical possession of a servant or other person who holds them for him. This kind of posses- sion is sometimes called "constructive possession." So, too, where goods are in a warehouse or in a ship, and the O) Read v. Edward*. 34 L. J. C. P. 31. (r) King v. Rose, 1 Freem. 3-17. (it) See ante, Art. i). (x) Tanored v. Allgood, 28 L. J. Ex. 362 ; Lancashire Wagon Go. v. Fitzkufjh, 6 II. & N. 502 ; Meat's v. London and South Western Rail. Co., 11 C. B. (N.s.) 850. Possession Necessary to Maintain an Action. 285 owner has the documents of title by means of which he can Art. 137. get actual possession, he may be said to have constructive possession. Another kind of possession is "possession hy relation." An administrator or executor has possession by relation from the moment of the death of the intestate or testator, for his title relates back to the death. And this possession by relation is enough to support an action against a wrongdoer, although at the time of the wrongful act the administrator or executor had neither title nor actual possession, nor the right to immediate possession (y). (1) A master of a ship, as bailee of the cargo, has actual Illustrations, possession, and can sue for trespass (z), as also can a person who has possession of another's cattle under a contract of agistment (a). (2) Upon the same principle it has been held that the Postmaster-General, as bailee in possession of letters delivered to him for carriage, can recover their value in an action for negligence against a wrongdoer, even though he would not himself be liable to the owners for their loss (b). (3) An owner of a chattel who has gratuitously lent it to another may maintain trespass, as it is considered to be in his possession, although the borrower has the physical possession. A loan does not, in contemplation of law, take the possession out of the owner (c). (y) Tliarpe v. Stallwood, 5 Man. & Gr. 760 ; and see Kirk v. Gregory, 1 Ex. D. 55. (r) Moore v. Robinson, 2 B. & Ad. 817. (a) Booth v. Wilson, 1 15. ,*c A. 59. (6) The Winlcfield, [1902] P. 42 [C. A.]. (49), affirmed.) Kent v. Ellis, 31 Can. S.C.R. 110. 292a— l.t. 1. 2926 CANADIAN NOTES. Mere permission by the defendant to store goods in defend- ant's barn, with knowledge of a dispute as to the title of the goods, but without intent to exercise dominion over the same, does not constitute conversion. Donald v. Fulton, 39 N.B.R. 9. In an action of detinue as distinguished from an action for con- version, a proof of demand and refusal is essential, if the deten- tion be denied. Gray & Smith v. Guernsey, 5 Terr. L.R. 439; Lintner v. Lintner, 6 O.L.R. 643 (D.C.). An agister of cattle who has indemnified the owner for lost or missing cattle has a special property therein entitling him to maintain an action for their unlawful detention. Simpkinson v. Hartwell (1899) 6 Terr. L.R. 473. Though one who takes upon himself to deal with the assets of a deceased person is, in one sense, a wrongdoer, and is rightly treated as an executor de son tort, his acts are not entirely void. And where the brother of a deceased intestate, without authority, sold to persons who bought in good faith the property of the deceased, and applied the proceeds in payment of the funeral expenses and debts of the deceased, it was held that the adminis- tratrix of the estate of the deceased, afterwards appointed, could not succeed in a claim against the purchasers for conversion. Pickering v. Thompson (1911), 24 O.L.R. 378. A man may become the absolute owner of a chattel by pur- chase without seeing the chattel, and without the performance of any visible act of receiving possession ; and it is equally clear that such purchaser, without ever having had actual visible possession of the chattel, may bring trespass against anyone who wrongfully converts it or injures it. It is enough if he has the exclusive pro- perty in the chattel and a right to the immediate possession of it. Haydon v. Crawford, 3 U.C.R. (O.S.), 587. A bailee may maintain an action against a wrongdoer. San- ford v. Bowles, 3 N.S.R. 304; McDougall v. McNeil, 24 N.S.R. 322. Under the "Judicature Act" system of procedure, an equitable title to chattels will support an action of replevin. Car- ter v. Long, 26 Can. S.C.R. 430; Francis v. Turner, 10 Man. R. 340, and 25 Can. S.C.R. 110; Sleeth v. Hurlburt, 27 N.S. Reps. 375; 25 S.C.R. 720; McDonald v. McPherson, 12 S.C.R. 416; Mc- CANADIAN NOTES. 29 2 C Donald v. Lane, 7 S.C.R, 462; Howard v. Herrington, 20 O.A.R. 175 ; Scarth v. The Ont, Power and Flat Company, 24 O.R. 443. Restitution of Stolen Property. When any prisoner has been convicted, either summarily or otherwise, of any theft or other offence, including the stealing or unlawfully obtaining any property, and it appears to the court, by the evidence, that the prisoner sold such property or part of it to any person who had no knowledge that it was stolen or unlawfully obtained, and that money has been taken from the prisoner on his apprehension, the court may, on application of such purchaser and on restitution of the property to its owner, order that out of the money so taken from the prisoner, if it is his, a sum not exceeding the amount of the proceeds of the sale be delivered to such purchaser. Cr. Code (1906), sec. 1049. This section is similar to sec. 9 of the Imperial Act, 30-31 Vict., ch. 35. If any person who is guilty of any indictable offence in steal- ing, or knowingly receiving any property (thefts by trustees, etc., by misappropriation excepted), is indicted for such offence, by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, or is tried before a judge or justice for such offence and convicted thereof, the property shall be restored to the owner or his representative. Cr. Code (1906), see. 1050. The court or tribunal may also, if it sees fit, award restitution of the property taken from the prosecutor, or any witness for the prosecution, by such offence, although the person indicted is not convicted thereof, if the jury declares, as it may do, or if, in case the offender is tried without a jury, it is proved to the satisfaction of the court or tribunal by whom he is tried, that such property belongs to such prosecutor or witness, and that he was unlawfully deprived of it by such offence. Cr. Code (1906), sec. 1050 (3). But if it appears before any award or order is made, that any valuable security has been bona fide paid or discharged by any person liable to the payment thereof, or being a negotiable instru- ment, has been bona fide taken or received by transfer or deliv- 29 2d CANADIAN NOTES. ery, by any person, for a just and valuable consideration, with- out any notice or without any reasonable cause to suspect that the same had, by any indictable offence, been stolen, or if it appears that the property stolen has been transferred to an inno- cent purchaser for value who has acquired a lawful title thereto, the court or tribunal shall not award or order the restitution of such security or property. Cr. Code (1906), sec. 1050 (4). Code section 1050 corresponds with sec. 100 of the English Lar- ceny Act, 24-25 Vict., ch. 96. The expression property includes not only such property as was originally in the possession or under the control of any per- son, but also any property into or for which the same has been converted or exchanged and anything acquired by such conver- sion or exchange whether immediately or otherwise ; and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods. Cr. Code ( 1906 ) , section 2(32). And it has been held that the proceeds of the property are included. Howe v. Schroeder (1905), 1 West. L.R. 174 (Yukon Terr.). The Manitoba Sale of Goods Act provides that where goods have been stolen and the offender is prosecuted to conviction, the property in thei goods "reverts" to the person who was the owner. This statute will not prevent the owner from suing to recover his property by civil action before the conviction. Harding v. John- ston (1909), 8 Man. R. 625. As is pointed out in the latter case the word "revert" used in that statute is not an appropriate term as the property in the goods had not passed from the right- ful owner. QUESTIONS ON UNDEEHILL'S TOUTS. By C. O. BLAGDEN, M.A., OK GRAY'S IXN, BARRISTER-AT-LAAV. NOTE. These questions have been drawn up with a view to assisting students in mastering the prin- ciples of the Law of Torts, and in testing their knowledge of that subject by reference to the pages of the present work. They are not, therefore, necessarily such questions as it would be fair to set in an examination, though no doubt many of them would be suitable for that purpose. The numbers at the end of each question give the pages where the required information can be found. ' ' QUESTIONS. 1. Define "tort," and give reasons for your definition. [7 — 11.] 2. Discuss the definition of a tort as " a wrong independent of contract." [7, 37—41. 3. Explain and illustrate the distinction between " tort," " crime," "breach of contract," "breach of trust," and moral turpitude. Does the fact that a wrongful act (or omission) happens to fall under more than one of these heads affect the common law remedy ? [9, 28, 29. 31—35, 37—41, 217.] 4. What elements are combined in the legal conception of " tort " ? Give illustrations of each. [8—20.] 5. Discuss and illustrate the maxim that injuria sine damno is actionable, but damnum sine injuria is not. What is the precise meaning of the words damnum and injuria in this connection ? [8-14.] 6. When is actual damage a necessary part of the cause of action in tort, and when is it not ? [9, 10.] 7. A man is unlawfully detained for a short time, but so as to suffer no loss whatever thereby either in money, health, comfort, or otherwise. On another occasion he is, by fraudulent misrepre- sentations as to existent facts, deceived into a belief, which, if he acted on it, would result in pecuniary loss to him ; but he finds out the fraud in time and does not in fact suffer any loss whatever. Can he maintain an action against the person (a) who detained him, (b) who deceived him ? [9, 12.] 8. Distinguish, with illustrations, between — (a) An absolute private right ; (b) A qualified private right ; and (c) A public right. What is the importance of these distinctions in relation to the law of torts? [9—12.] 9. Under what circumstances can an individual maintain an action for damages for the infringement of a public right ? Give illustrations. [10, 31 — 35.] 296 Questions. 10. Give instances of unlawful acts which, though causing damage to particular individuals, nevertheless give rise to no action for damages at common law. [10 — 28.] 11. Illustrate and explain the distinction between a public and a private nuisance. Under what circumstances can an action for damages be brought in respect of the former ? [10, 217, 225.] 12. A. walks on B.'s land without having any legal right to do so but without doing any damage to it. Can B. maintain an action against A. ? Would it make any difference if A. had merely stepped on B.'s land in order to avoid being run over by C.'s motor car? [10,268.] 13. A. owns a shop which greatly depends for its custom upon its attractive appearance ; a gas company erects, on its own land, a gasometer, hiding the shop from the public and thereby seriously damaging A.'s trade. Can A. maintain an action for damages against the company ? Give reasons for your answer. [9, 225, 220.] 14. A landowner by working his mines causes subsidence of the surface, resulting in the collection of rainwater which percolates into his neighbour's mine and thereby causes trouble and expense to the neighbour. Can the latter maintain an action for damages ? [191—194.] 15. A., a legally qualified voter, of Conservative views, duly tenders his vote at a parliamentary election to the returning officer, who wrongfully refuses to register it. The Conservative candidate is returned by a large majority. Has A. any cause of action against the returning officer, and, if so, on what principle ? [9, 10.] 16. A. unlawfully obstructs a public highway, thereby delaying B., amongst other members of the public in passing along it. Can B. maintain an action for damages against A. ? [218 — 221.] 17. A. leaves an unf enced hole on his land immediately adjoining a public highway. B., passing along in the dark, falls into the hole and breaks his leg. Can B. maintain an action for damages against A.? [218—221.] 18. A. keeps a coffee-house in a narrow street. ITis neighbour B. carries on a business as auctioneer, and is constant!; loading and unloading goods into and from vans in the street to such an extent as to create a public nuisance and to obstruct A.'s business and inconvenience A.'s customers. Can A. maintain an action for damages against B., and, if so, on what principle ? [220.] Questions. 297 19. A.'s servant is so seriously injured in a railway accident due to the negligence of a signalman employed by the railway com- pany, that A. loses his services for six months. Can A. maintain an action for damages against the company ? If, instead of being injured, the servant is killed outright, can A. maintain an action ? [73.] 20- To what extent is the voluntary nature of the wrongful act or omission an essential element in a tort ? [12 — 14.] 21. Is it ever a good defence to an action for tort, to show that the wrongful act was done in pursuance of instructions received from a third party and was not known by the defendant to be wrongful ? [12—14, 54.] 22. Which, if any, of the following would constitute a good defence to an action for damages in tort — (a) that the defendant did not intend to do harm ; (b) that he did not know his act was illegal ; (c) that the damage done would not have happened but for an accident, which could neither be prevented nor foreseen ; (d) that the act which did the damage was done by leave of the person damaged. [12, 14 — 19, 27.] 23. A butcher's man leaves his horse and cart unattended in the road while he serves meat at the back door of a neighbouring house in accordance with his usual custom. The horse, which has generally remained quite quiet under such circumstances, is frightened by a motor car, runs away and injures a lady. Has the lady a cause of action against the butcher's man ? [16—18.] 24. A. has an unguarded pit on his premises. B. coming on to the premises on lawful business, falls into the pit and is seriously injured. Has B. a cause of action against A., and why ? [171.] 25. A. plants a yew tree in his back garden, and in course of time it grows so as to project into B.'s meadow. One of B.'s horses kept in the meadow eats the projecting shoots and dies m consequence. Under what circumstances and on what principle, if at all, has B. a cause of action against A. ? [191—195.] 26. A.'s coachman is driving quietly along a street when the horse, without warning or any explainable cause, bolts, and in spite of the coachman's utmost efforts, swerves on to the footpath and knocks down B., a passer-by, injuring him severely. Assuming f 29S Questions. that the coachman was a man of skill 'and experience, has B. any cause of action against A. ? Give reasons for your answer. [185.] 27. A., a guest at a shooting party, accidentally, without intending to do so and without being guilty of negligence or want of care in the use of his gun, shoots B., another guest, in the leg. Has B. any cause of action against A. ? [12 — 14.] 28. Illustrate the principle that a man must be presumed to intend the probable consequences of his voluntary acts or omis- sions. [12.] 29. A. wrongfully throws a lighted squib at B., who, in self- defence wards it off so that, without either of them intending it. the squib explodes in C.'s eye and blinds him. Can C. maintain an action for damages against A. and B., or either of them ? [12 -19.] 30. Is the nature of the motive with which the act was done ever an essential ingredient in tort ? Does an evil motive ever make wrongful an act which would otherwise be justifiable ? Does a good motive ever make justifiable an act which would otherwise be wrongful? [14—16, 118—128, 137, 138, 158, 225, 226.] 31. In what senses is the word " malice " used in connection with (a) malicious prosecution ; (b) libel and slander ; and (c) other torts generally ? [14, 124, 137.] 32. Is it a tort to induce a person (a) to break a contract, (b) to refrain from making a contract ? [153 — 157.] 33. A. walks across B.'s land under the honest but mistaken belief that there is a public right of way across it. Is his belief a good defence to an action for trespass ? [12.] 34. A. purchases from B. goods which he believes to be B.'s, but which are in fact C.'s property. What is A.'s liability towards C. ? [279—283, 286—288. 35. What is meant by an Act of State ? [20.] 36. What is the difference between a judge of a superior court and a judge of an inferior court as regards immunity from actions for things done by them in their judicial capacity ? [21 — 23.] 37- To what extent is the civil remedy in damages interfered with when the wrongful act or omission amounts to a felony ? [28—30.] Questions. 299 38 A. has innocently bought goods from B., who has stolen them from C. Can C. bring an action against A. without prose- cuting B. for the theft ? [29, -279-284.] 39 To what extent can a duty or right created, or declared, by statute, be enforced at common law ; and in what cases is the common law action for damages excluded ? [31—35.] 40 Where a duty is created by statute for the benefit of the public, is a person, who, by reason of another's neglect of the statutory duty, suffers a loss, entitled to maintain an action for damages in respect of such loss ? Give an instance. [32.] 41 Explain and illustrate the distinction between actions in -tort" and in -contract," respectively. Is there any practical importance nowadays in this distinction ? [37—41.] 42 If in a railway accident, occurring through negligence on the part of the railway company's servants, a passenger is injured, does his remedy lie in contract or in tort ? [37.] 43 A man pledges a coat at a pawnbroker's, and owing to the latter's negligence it becomes ruined by moths. Discuss the question whether the owner's remedy is in contract or m tort. [37, 176.] 44 What is meant by privity of contract V Has it any appli- cation to tort ? A man employs a surgeon to attend to his wife. Owing to the surgeon's negligence, the patient is injured. Has she any remedy at law, and, if so, on what principle i [38-40.J 45 A., a domestic servant, going by train from London to Birmingham, loses his luggage owing to the negligence of the railway company's servants. His fare had been paid ^ _ B., Ins master. What remedy has A. against the company ? LoJ.J 46 A «oes to a gunmaker and explains to him that he wants a good; sound gun for the use of himself and his son B The gun- maker sells him a gun which he warrants to be perfectly sound A few days later B. goes out shooting and the gun bursts and seriously damages his face. Has he any remedy, and, it so, on what principle, against the gunmaker ? [39, 40.] 47 If a person gratuitously undertakes to perform a service for another person, can he be made liable for (a) net performing it or (b) performing it so negligently that damage results to the other person ? Give your reasons. [40.] 300 Questions. 48. A. intrusts a purse of money to the care of B. who gratuitously undertakes the custody of it. Through B.'s negligence the purse and its contents are lost. Has A. any remedy against B., and, if so, on what principle ? [40, 41.] 49. A., walking along the road, is overtaken by a motor car driven by B., a " chauffeur," whom he knows slightly, and who offers him a ''lift." A. rashly accepts the invitation, and in consequence breaks his arm in an accident (caused solely by B.'s negligence) which terminates the excursion. Has A. any remedy against B. or B.'s employer, and, if so, on what principle ? [41, 55—63.] 50. Under what circumstances, if at all, is an action for damages maintainable in England in respect of a tort committed abroad ? [43, 44.] 51. Who may be plaintiff in an action for tort ? State any exceptions to the general rule. [45.] 52. Can a husband sue his wife, or a wife her husband, in tort ? [45.] 53. Can a corporation sue in tort precisely as if it were an individual person? [45, 104, 108.] 54. Who may be made a defendant in an action for tort, and what classes of persons are exempt from such liability ? [46.] 55. An infant hires a horse for the afternoon expressly for riding on the roads. He tries it at a fence and breaks its knees. Can he be made liable (a) for the damage done to the horse's knees ; (b) for the hire, which he has omitted to pay '? [47.] 56. Discuss the liability of infants, lunatics, corporations, and trades unions in tort. [40 — 49, 6 1 .] 57. To what extent is a husband liable for torts committed by his wife ? Is it ever necessary to join him as a defendant ? [51.] 58. Explain and illustrate the maxim " qui facit per alium facit per se " in its application to torts. [54.] 59. Explain the maxim " Omnis ratihabitio retrotrahitur it mandato j>iinr/ cequiparatur." To what extent is it applicable in tort ? [55.] 60. Explain the maxim " delegatus non /miry/ delegare" and give illustrations of its application in tort. [61.] Questions. 301 61. If a cabdriver (whose duty it is to drive the cab himself) allows the " fare " to drive, and the latter drives so badly as to collide with and damage a private carriage, is the owner of the cab liable to the owner of the carriage for the damage done ; and if so, on what principle '? [62.] 62. A driver of a cart negligently leaves the cart in charge of a small boy, whose duty it was to go with the cart to deliver parcels, but who had been forbidden to drive. The boy drives the cart and collides with a private carriage. Is the tradesman, who employs the driver and the boy, liable for the damage done to the carriage ; and, if so, on what principle ? [02.] 63. State precisely the liability of a person for the wrongful acts and omissions of a contractor employed by him to do a particular piece of work. [63.] 64. A railway company was empowered by Act of Parliament to construct a railway bridge over a public highway, and employed a contractor to do the work. A servant of the contractor negli- gently caused serious injury to a person passing along the highway by allowing a stone to fall on him. Discuss the liability of the company for the damage done to the injured individual. [65.] 65. A company, not authorised to interfere with certain streets, directed their contractor to open trenches therein. The contractor's servant, in doing so, left a heap of stones, over which a person fell and was injured. Discuss the liability of the company for the damage done to this person. [52 — 54.] 66. A company, being authorised by Act of Parliament to con- struct a bridge over a navigable river, employed a contractor to do the work. A person, who suffered damage by reason of defects in the construction and working of the bridge, sues the company. On what principle, if at all, is his action maintainable ? [6^-] 67. A. and B. are owners of two adjoining houses. A. being entitled to have his house supported by B.'s soil. B. employs a contractor to pull down his house, excavate the foundations, and rebuild the house. The contractor undertakes the risk of sup- porting A.'s house during this process, but fails to take the necessary precautions. Is B. liable to A. for the consequent damage to A.'s house ; and, if so, on what principle ? [66.] 68. A. maintains a lamp hanging over a highway for his owu purposes. He employs a contractor to repair it ; but the latter does his work so badly that soon afterwards the lamp falls down 302 Questions. and hurts B., a passer-by. Is A. liable to B. in damages: and, if so, why ? [67.] 69. A contractor, employed to clear and burn brushwood on land belonging to A., negligently and in disregard of express instructions as to the time of lighting the fire, lit it and permitted it to spread on to the land of B. Is A. liable in damages to B. for the injury thus done to B.'s land ; and, if so, on what principle ? [67.] 70. A., being the owner of a carriage, horse, and harness, and losing his coachman at short notice, gets another for the day from a livery-stable keeper, and is driven out by him. Discuss the liability of A. for damage done to a stranger by reason of the negligence or want of skill of this hired driver. [56, 57.] 71. A. having a carriage, but no horse or harness, hires these for the day from a livery-stable keeper, who also supplies him with a driver on inclusive terms, so that A. does not pay the driver's wages direct to the latter. Discuss the liability of A. for damage done by the driver to B.'s carriage in a collision. [56. 57.] 72. A., having a coachman to spare, lends his services for the day to B., who is short of one. Discuss the liability of A. and B. for damages done to C. by the coachman while driving B.'s carriage and horses. [56, 57.] 73. A., being the owner of a motor car, leaves it in charge of a " chauffeur " with instructions to call for him at a certain place that afternoon. In A.'s absence during the morning the "chauffeur" takes his sweetheart for a drive in the car (an event not contem- plated by A.), and during the drive negligently collides with and damages B.'s carriage. Discuss A.'s liability to B. for the damage ■done. [56, 58.] 74. An omnibus conductor, for the fun of the thing, changes places with the driver and drives the omnibus so unskilfully that he collides with and damages a private carriage. Discuss the liability of the omnibus company. [56, 59.] 75. A bank manager, in answer to inquiries by A. as to the financial position of B. (a customer of the bank), replied that B. is a person of sound financial position. This statement was known by the bank manager to be untrue when he made it, and was made, not for his own benefit but for the benefit of the bank, with intent to deceive A. Advise A. as to whether, having suffered loss by acting on the faith of this statement, he has a cause of action against the bank. [56, 59, 165.] Questions. 303 76. An omnibus driver, contrary to the express instruction of his employers, drives in such a way as 10 obstruct a rival omnibus, with a view of increasing the takings of his own. Discuss the liability of his employers. [59.] 77. An omnibus driver, out of spite against a rival omnibus, struck the horses of the latter with his whip. Discuss the liability of the driver's employers. [59.] 78. What is meant by the doctrine of " common employment " ? On what principle is it based and to what extent has it been cut down by modern legislation ? [203 — 211.] 79. A butcher's man was ordered to deliver meat from a van. The van, having been overloaded by the negligence of another of the butcher's servants, broke down, and the butcher's man was hurt thereby. Can the butcher's man maintain an action for damages against his employer ? [205.] 80. Owing to the negligence of the captain of a merchant vessel, one of the crew is seriously hurt. Discuss the liability of the owners. [206.] 81. Owing to the negligence of the captain of ship A., it collides with ship B., and one of the crew of the latter ship is seriously injured thereby. Both ships belong to the same owner. Discuss his liability for the damage done to the injured man. [207.] 82. A collier is seriously injured by the fall of a stone from the side of the shaft, which has been left in a dangerous state by his employers. Discuss their liability in damages. What must the plaintiff prove in order to succeed in his action ? [204.] 83. A master orders a servant to take a bag of corn up a ladder which is unsafe ; the ladder breaks and the servant falls down and is injured. Discuss the liability of the master, on the alternative assumptions that (a) he knew the ladder was unsafe, but the servant did not ; (b) he did not know, but the servant did ; (c) both knew ; and (d) neither knew nor had the means of knowing. [204, 209.] 84. What is meant by the maxim " volenti non jit injuria " ? Discuss its application to the case of injuries sustained by a servant employed in a dangerous occupation. [187 — 189, 210.] 85. A passer-by assists a carman in managing a fractious horse. In course of doing so, he himself gets injured owing to the carman's negligence. Discuss the liability of the carman's employer for the damage done to the passer-by, on the assumption that the latter was asked by the carman to give his assistance. [208.] 304 Questions. 86. Explain and illustrate the liability of a partner for the torts of his fellow partner. [53.] 87- One member of a firm libels a stranger. Can the latter sue the firm in damages, and, if so, on what principle ? [53.] 88. From what period do the Statutes of Limitation commence to run in the case of torts ? [94.] 89. In 1895 A. began to work coal under the land on which B.'s house stands. In consequence of this working, a subsidence occurred in 1900, and B.'s house was damaged. In 1904 B. com- menced an action for damages against A. What facts, besides the above, would be of importance in deciding the case for or against B.'s claim ? [95.] 90. A.'s furniture was legally seized under an execution by the sheriff and bought by B., a friend, who, out of kindness, left it in A.'s possession where it remained for ten years, at the end of which A. died. B. then claimed it, but A.'s widow pleaded the Statute of Limitations. Discuss their respective claims to the furniture. [95.] 91. State and illustrate the effect of the fraudulent concealment of a tort on the right of the person injured to maintain an action for damages. [94.] 92. In what respects do the Statutes of Limitation differently affect the rights of a person to recover (a) land, (b) goods, of which he has been wrongfully deprived ? [96.] 93. Explain and illustrate the application of the Statutes of Limitation to a continuing tort. [96, 97.] 94. What is meant by " disability, - ' in relation to the Statutes of Limitation, and what is the effect of it ? [97, 276.] 95. To what extent are public officers and authorities specialty privileged in relation to actions in tort ? Does the privilege extend to their servants and agents. [98, 99.] 96. What is the measure of damages in actions for tort (a) in respect of personal injury, and (b) in respect of injury to property ? [77—80.] 97. On what principles and under what circumstances, if at all, can the verdict of a jury, in regard to the amount of damages given in respect of a personal injury, be disturbed ? [77.] 98. What considerations may be taken into account by the jury in estimating damages in a case of seduction ? [83, 84, 150, 151.] Questions. 305 99. What is the proper measure of damages for injury done to a horse through the negligence of a person who had hired it from the owner ? [78 — 80.] 100. A., a colliery owner, wrongfully worked coal lying under the land of his neighbour B. State precisely the proper measure of damages that should be awarded to B. [79.] 101. Explain and illustrate in its application to torts the maxim i( omnia prcesumuntur contra spoliatorem." [80.] 102. Explain and illustrate what is meant by (a) " consequential damages," and (b) " prospective damages." [81 — 83.] 103. In an action for personal injury, what kind of consequences of the injury can be taken into account in the assessment of damages? Give illustrations. [81, 82, 85.] 104. What circumstances may be considered by a jury to be in (a) aggravation, and (b) mitigation, of damages ? Give illustra- tions in cases of (1) defamation, (2) assault and battery, and (3) trespass. [83, 84.] 105. What is the legal position of persons who have jointly committed a tort ? [49, 50.] 106. What are the effects of— (a) A judgment being given against one of several tort- feasors ; (b) A release being given to one of them ; (c) A covenant not to sue being made with one of them ; (d) Damages being levied upon one of them on a judgment given against them all jointly ? [49, 50.] 107. Discuss the proposition that " there is no contribution between tort-feasors." [49.] 108. Explain and illustrate the application of the remedy by injunction to various kinds of torts. [87 — 91.] 109. Distinguish between interlocutory and perpetual injunc- tions as remedies in cases of torts, and ilhistrate the principles on which they will respectively be granted. [87 — 90.] 110. To what extent is either (a) public convenience, or (b) statu- tory authority, a justification of the continuance of a tort ? [24 — 27, 90, 91.] 111. What is the effect on an action of tort, of the death of (a) the plaintiff, or (b) the defendant ? To what extent does it depend on the nature of the tori itself? [69, 7i>.] 30T5 Questions. 112. What is meant by " actio personalis moritur cum persona" as applied to actions in tort? State and illustrate the exceptions t<> this rule. [70.] 113. Explain and illustrate the provisions of Lord Campbell's Act, [71—75.] 114. What is the effect on a right of action in tort of the bank - ruptcy of (a) the person who has suffered the wrong, or (b) the person who has caused it ? [70, 71.] 115. Define and analyse "libel" and "slander." In what principal respects do they differ from one another ? [103, 104, 108.] 116. What is meant by " defamatory " statements ? Give illustrations of what would be considered defamatory, and what would not, [104.] 117. A financier, who is also a candidate for Parliamentary election, having been styled a " shady customer " in a leading article of a newspaper of the opposite political persuasion, brings an action for libel against the proprietor, editor, printer, and various newsagents who have sold copies of the paper. Indicate the defences which they can respectively set up. [114 — 120.] 118. Under what circumstances, if at all, can a statement be held defamatory, which taken in its literal sense conveys no offensive meaning whatever ? [106.] 119. Is it a libel to write (falsely and maliciously) of a trades- man that the goods he sells are of the worst possible quality ? [11)7, 130.] 120. What is slander of title ? [130.] 121. What is meant by " special damage " in relation to actions for slander, and what classes of slanders are actionable without proof of such damage ? [108 — 112.] 122. Define and illustrate " publication," in connection with a libel or slander. [114.] 123. A solicitor acting for a client dictates a letter to his type- writing clerk. The letter contains certain statements relating to the person to whom it is addressed, which are defamatory and untrue (though believed to be true by the solicitor at the time of dictating the letter). Is the solicitor liable in an action for liliil at the suit of the person to whom the letter is addressed? [115, 127.] Questions. 307 124. What is the liability of a street newsvendor for libels contained in the newspapers he sells ? [117.] 125. A. falsely and maliciously tells his wife that B., another lady, is an adulteress. Can B. maintain an action against A. for this slander '? [115.] 126. A. falsely and maliciously tells B. that her husband C. has recently committed a criminal off ence . Can C. maintain an action for slander against A. ? [115.] 127- What is meant by "justification " as a defence to an action for libel ? On what principle does it depend ? [117.] 128. What is meant by " fair comment" in relation to the law of libel and slander ? Illustrate the limitations to which it is subject. [118—120.] 129. Explain and illustrate the expressions " actual malice" and •' privileged occasion " in relation to an action for libel or slander. [123—128.] 130. Distinguish between " absolute " and " qualified " privilege in relation to libel and slander, and give instances of each. [120, 123.] 131. What are the functions of a judge and jury respectively in regard to the questions of " privileged occasion " and " privileged communication " in an action for libel ? [123.] 132. In what respects has the ordinary law of libel been modified in favour of newspaper proprietors and editors ? [122, 129.] 133. C. is an applicant for an appointment in B.'s business. In reply to an inquiry by B. as to C's. character, A. writes a letter which, amongst other things, contains an untrue defamatory state- ment about C, made, however, by A. in the belief that it is true, ami that he ought to mention it. Having written the letter, A. negligently puts it into a wrong envelope, so that it ultimately reaches D., who informs C. of its contents. Can C. maintain an action against A. ? [126, 127.] 134. To what extent is a person who repeats (a) a libel or (b) a slander, liable equally with the originator of it? [115, 117.] 135. A. slandered B. in C's hearing. C, without authority, repeated the slander to I)., in consequence of which D. refused bo trust B. Does an action for slander lie against A., and, if so, Why? [115, 117.] 136. What is the statutory Limitation applicable to actions for libel and slander V [93.] 308 Questions. 137. Define and analyse " malicious prosecution." [133 — 140.] 138. What is meant by " want of reasonable and probable cause " for instituting a prosecution ? In an action for malicious prosecu- tion (a) on whom does the onus lie of proving, and (b) what are the functions of a judge and jury with regard to, the facts material to this part of the case ? [135 — 137.] 139. Define " maintenance." In what respects does it differ from " malicious prosecution " ? [143.] 140. Illustrate and explain what is meant by a " common interest " in relation to actions for the tort of maintenance. [143, 144.] 141. What is the legal principle on which actions for seduction are based? [145—149.] 142. Frame and discuss a definition of common law fraud or deceit, as a tort, and distinguish it from such misrepresentation as would, in equity, be a ground for rescinding a contract. [1G1 — 164.] 143. Explain the decision in Dcrry v. Peck. [162 — 166.] 144. What is the statutory liability of directors of joint stock companies in regard to untrue statements contained in a prospectus inviting subscriptions for shares ? [165.] 145. Under what circumstances can a man be made liable in tort for the untrue statements of his agent ? [165.] 146. A., a secretary of a company, by false statements induces B. to take shares in the company. Is the company liable for the fraud of the secretary V [165.] 147. Does silence ever amount to fraud ? [161, 162.] 148. A., an opera-house manager, engages a singer to perform in an opera. B., manager of a rival opera-house, hears of this and offers the singer a sum of money to break her contract with A. and to sing in B.'s opera. She does so, with the result that A. sustains a loss. Can A. maintain an action for damages against B,, and, if so, on what principle ? [153.] 149. Define " negligence." Under what circumstances is it wrongful, so as to give rise to an action for damages in tort ? Give illustrations. [167.] 150. A. lends B. his gun to shoot game with. If the gun explodes and injures B., would A. be liable in damages? [177 — 180.] Questions. 309 151. It is sometimes said that every dog is legally entitled to one bite. Discuss and explain this statement. [196.] 152. A., a neighbour permitted to cross B.'s land in order to go by a short cut to his own house, goes on to B.'s land in the dark and falls into an unfenced pit. Discuss the circumstances, if any, which would entitle him to maintain an action for damages against B. [171—173.] 153. Explain and illustrate what is meant by "contributory negligence." Is it always a good defence? Give illustrations. [181—184.] 154. An omnibus comes into collision with a hansom cab, both drivers being to blame for negligence in driving. The hansom is damaged and a person in it is injured in the collision. Has (a) the owner of the hansom, or (b) the "fare," any remedy in damages against the omnibus company ? [181 — 184.] 155. What is the effect of the decision in The Bernina ? [183.] 156. A., a landowner, negligently allows a fence on his land adjoining a public highway to get into a rotten condition. B., a little boy, attempts to climb the fence (which he has no right to do) ; the fence falls down and injures him. Can he recover damages from A. ? ["219.] 157. Illustrate the principle that in an action founded on negli-. gence the negligence of the defendant must be the proximate cause of the damage. [184.] 158. Will (a) negligence, (b) contributory negligence, ever be presumed, or must they be proved in every case ? and, if so, on whom does the onus lie and what are the functions of the judge and jury respectively in relation thereto? [185.] 159. Define " public nuisance." Under what circumstances does a public nuisance give rise to an action for damages ? [217 — 221.] 160. Define " private nuisance," and give illustrations of each. [225—248.] 161. What is the liability in tort of a highway authority for injury to an individual by reason of the highway being allowed to fall into disrepair? [33 — 35.] 162. In an action for damages in respect of a nuisance, is it a good defence to show that the plaintiff knew of it and nevertheless deliberately went to live in its vicinity ? [230.] 310 Questions. 163. How, if at all, can the right to commit a nuisance be acquired ? [24—27, 232.] 164. What is the liability of the landlord and tenant respectively by reason of the premises being in such a ruinous condition as to constitute a nuisance? [221, 231.] 165. Give illustrations of nuisances affecting incorporeal here- ditaments. [237—248.] 166. To what extent is a man entitled to lateral support from his neighbour's land ? [241.] 167. Explain what is meant by disturbance of a right of light. How can an easement to light be acquired, and what constitutes a disturbance of the easement ? [242 — 245.] 168. Explain and illustrate the law relating to rights to water. [245—248.] 169. Explain and illustrate what is meant by the " abatement " of a nuisance. Under what circumstances must this remedy be preceded by notice to the person committing the nuisance ? [221, 235, 236.] 170. Branches of a tree growing in A.'s garden overhang the intervening wall and spread over into B.'s garden. Is B. entitled to cut them down ? [236.] 171. What are the rights and remedies of a reversioner in respect of nuisances to the property ? [234.] 172. Define and illustrate — (a) Assault ; (b) Battery ; (c) False imprisonment. Can a threat ever amount to an assault ? [249 — 253.] 173. What is mayhem ? [251.] 174. What are the defences to an action founded on assault, battery or false imprisonment ? Give illustrations. [254 — 264.] 175. Under what circumstances does an action lie against a magistrate who has exceeded his jurisdiction and wrongly imposed a sentence of imprisonment ? [21, 22.] 176. Under what circumstances can (a) a justice of the peace, (1)) a constable, and (c) a private individual, lawfully arrest a person ? Give illustrations. [258 — 263.] 177. What is a trespass quare elausum /regit V ( 1 ive illustrations. [267.]' Questions. 311 178. What are the defences to an action for trespass to another man's land? Explain what is meant by the plea of liberum tenementum. [268, 269.] 179. What is meant by a trespasser ah initio ? Explain the decision in the Six Carpenters' Case. Does the principle apply to goods as well as to land ? [269—286.] 180. What interest in land must a plaintiff have in order to maintain an action for trespass ? Can an action for trespass be maintained by one of two joint owners against the other '? [270, 212.] 181. What is distress damage feasant ? [273.] 182. Define and illustrate "dispossession." [274.] 183. To what extent can either of the parties to an action for the recovery of land set up jus tertii ? [275.] 184. What is the period of limitation for actions for the recovery of land, and when does it begin to run ? [276, 277.] 185. Define and illustrate trespass to goods. What is wrongful conversion? [279.] 186. Under what circumstances does a bona fide purchaser of goods from a person who obtained them fraudulently from the true owner get a good title to them ? [282, 283.] 187. Illustrate possible defences to an action for trespass to another's goods. [283, 284.] 188. What is meant by (a) " constructive possession " and (b) " possession by relation " '? [284, 285.] 189. Explain the decision in Armory v. Delamirie. [80, 288.] 190. A. lends an umbrella to B., who leaves it in the hall of his club, whence it is removed by C, who now claims that it is his. Which of the two, A. or B., has the right to maintain an action against C. ? [285.] 191. Under what circumstances can one joint owner of a chattel maintain an action for trespass in respect of it against the other joint owner ? [276.] 192. If the plaintiff in an action for conversion gets judgment against the defendant, is the defendant bound to return the goods V In whom is the property after judgment ? [286, 287. ] 4*& , INDEX. ABATEMENT of action. See Death. nuisance, 235. cutting overhanging trees, 236. not proper remedy to prevent prospective nuisance, 235, pulling down buildings, 236. 236. inhabited house, 236. ABROAD, liability for torts committed, 43 el seq. ABSOLUTE RIGHT, infringement of, without damage, constitutes a tort, 7, 9. ACCIDENT, actionable, if preventable, 13, if inevitable, not actionable, 12 et seq. And see Negligence ; Nuisance. when occurrence of, prima facie evidence of negligence, 185, 186. ACT OF GOD excuses what would be otherwise actionable, 191 et seq. ACT OF STATE, no action can be brought for damage resulting from, 20. whether between two independent states or between a state and an individual foreigner, 20. not easily denned, 20. what is, 20, 21. ACT OF THIRD PARTY, where damage partly caused by, 194. ADOPTION. See Ratification. ADVERTISEMENTS, criticism of, privileged, 119. ADVICE. confidential, a privileged communication, 125. l.t. Y [ I ] Index. AGENTS cannot shelter themselves behind their principals, 54. general liability of principal for torts of, 54. where agent expressly employed to commit tort, 54. no liability in general for collateral negligence of agent, 63. unless he is a servant, 56 et seq. who is a servant, 56 et seq. wilful acts of servants, 59. arrests by, 59. assaults by, 60. And see Master and Servant. AGGRAVATION. See Damages. AIR, when action lies for obstruction of, 244. ALIEN ENEMY cannot sue, 45. AMBASSADORS not liable for torts, 46. but may waive privilege, 46. ANIMALS. See Ferocious Animals. damage by, 196 et seq. bulls,' 198. dog " accustomed to bite mankind," 197. biting and worrying sheep, 197. domestic animals, trespass by, 199. highway, straying from, 198. on, 198. if dangerous, kept with knowledge, no negligence need be proved, 197. in suing for damages caused by dangerous, scienter must be proved, 197. 198. liability of persons keeping elephants, bears and monkeys, 196. wild and vicious, 196. owner of vicious dog liable for servant's wrongful act, 199, 200. persons keeping dog or other domestic, no liability of, 196. servant's knowledge that dog is dangerous, 197. trespasser bitten by horse, occupier of land not liable, injuries done to, 283. 199. killing in self-defence, justifiable, 283. trespasses of, 267. ARREST. See Imprisonment. ARTIFICIAL WATERCOURSE. See Watercourse. ASSAULT AND BATTERY, amount of damages, l!<>-~>. aggravation a mitigation, 83, 84. [2 ] Index. ASSAULT AXD BATTERY— continued. definition of assault, 2*50. ability to do harm, necessary, 250. attempt necessary, 251. committed in sport, not actionable, 251. menacing, 250. definition of battery, 251. battery voluntarily suffered, not actionable, 252. caused by inevitable accident, excusable, 252. committed in mere retaliation, not justifiable] 255. defence of property, 255. injuries inflicted through defective tramway, 252. in order to arrest night offender, felon, malicious trespasser or vagrant, 263. in order to expel disturber of congregation, justifiable, 263. in order to stop breach of the peace, 254, 262. by naval or military officers, 256. justification for, 254 et seg. may be occasioned by anything wrongly and wilfully or negligently set in motion by defendant, 252 mayhem, 251. of pupil or child for sake of correction, 256. self-defence, justifiable, 255. on person having ticket for grand stand and enclosure at races, 255. refusing to leave after being requested to, 255. proceedings before justices release civil proceedings, 264. responsibility of master for, by servant, 60. B. BAILEE. See Trespass. BAILEES OF GOODS, common carriers, meaning of, 177. duty of, 176. degree of care required, varies with nature of the bailment to take reasonable care of goods bailed to them, 176 17c' liability of, 176. BAILOR may bring trespass against third party or purchaser, where bailee has wrongfully delivered or sold goods, 287 unless sale in market overt, 282. and even then if goods stolen and thief convicted, 283. BANKRUPTCY, effect of, on the right to sue or the liability to be sued for tort, 70, 71. BATTERY. See Assault and Battkrv. [ 3 ] Index. BODILY INJURIES. See Assault. caused by false imprisonment. See Imprisonment. negligence. See Negligence. nuisances. See Nuisance. BREACH OF DUTY. escape of water accumulated by natural causes, not a, 194. falling on land, is not a, 194. liability for, to prevent damage from dangerous things and animals, 191 et seq. planting yew trees and thistles, when a, 195. not a, 195. supply pipes bursting, not a, if not for defendant's own use, 195. third party bringing thing on land, defendant not liable for, 194. water stored in a tank is not a, 195. when caused by act of God, 194. BRICK-BURNING may be an actionable nuisance, 228. c. CABDRIVER, who liable for negligence of, 57. CAMPBELL'S (LORD) ACT, 71 et seq. action can only be maintained in cases where deceased himself could have sued had lie lived, 73. action not maintainable when deceased received compensation before death, 75. effect of deceased having insured his life, 75. gives right of action to relatives of persons killed through another's default, 71 et seq. if servant injured but not killed, master may bring action for loss of services, 73. jury must apportion damages, 72. master cannot bring action for damages which cause the immediate death of his servant, 73. plaintiff must have suffered some pecuniary loss attributable to the relationship, 74. what damage must be proved, 74. when action maintainable, 73. for whose benefit maintainable, 73. when assessing damages insurance not to be taken into account, who may sue, 73. 75. in case executor does not, 72. CANDIDATE for office, character of, privileged communication, 126. CATTLE OR SHEER See Trespass. when injury is done to, by dog, scienter need not be shown, 197. word "cattle" includes horses, 197. [1] Index. CAVEAT EMPTOR, 161 et seq. CHARACTER, evidence of plaintiff's bad or irritating character or conduct in mitigation of damages in defamation, 84. fraudulent, when actionable, 163. of candidate for office, given to a voter or elector, a privileged communication, 126. daughter's loose character in mitigation of damages in seduction, 84. servant, when a privileged communication, 125. CHATTELS, trespass to, and conversion of, 279 et seq. See Trespass ; and see Wrongful Conversion. CHILDREN of deceased parent, action by. See Campbell's (Lord) Act. CHURCH BELLS, injunction to restrain ringing of, 89. CLERGYMAN, imputing unchastity to a beneficed, is actionable per se, 111. COERCION by illegal means, 153 et seq. COMMON EMPLOYMENT, meaning of, 204 et seq. See Master and Servant. there must be a common master, 207. COMPENSATION. See Workmen's Compensation. CONCEALMENT, when fraudulent. See Fraudulent Concealment. CONDUCT, evidence of plaintiffs objectionable, in mitigation or aggravation of damages, 83 et seq. CONFIDENCE. See Misfeasance. CONSEQUENTIAL DAMAGES. See Damages. CONSPIRACY, 155. not actionable where object is to induce persons not to employ defendant, 156. aliter where object is to induce persons to break contract, 154, 155, 157. CONSTABLE cannot, in general, arrest without a warrant, 263. definition of, 261. [5] Index. CONSTABLE— continued. may arrest without warrant — for acts of vagrancy, 263. brawling in church, 263. breach of peace, even after affray over, in order to take offender before a justice, 262. malicious injuries, 263. on reasonable suspicion of felony, 260. power of, to arrest in obedience to warrant, 259. special protection of, in executing warrants of justices without jurisdiction, 259. CONTINUING TORTS, commencement of period of limitation in, 96. fresh action may be brought for, until they are stopped, 83 et seq. CONTRACT, gratuitous bailees, 40, 41. in performance of duties undertaken gratuitously, 40, 41. negligence of professional men , 39. servant can sue railway company who have booked him although master paid the fare, 39. third party injured, as to deleterious quack medicines, 39. aliter, where fraud, 39. torts connected with, 37 et seq. waiver of tort and action on implied, 279. who may be sued for torts connected with, 38 et seq. CONTRACTOR, employer not in general liable for nuisance committed by, or negligence of, 56, 63 et seq. exceptions, 63 — 67. CONTRIBUTION, how far a right to, between tort-feasors, 49. CONTRIBUTORY NEGLIGENCE. See Negligence. CONVERSION. See Wrongful Conversion. CORPORATION is generally liable for torts, 48. liable for libels and slanders published by its servants, 61. torts, 48. even for those depending on fraud, 48. may sue for a tort unless it merely affects its reputation, 45. COUNSEL, opinion of, no excuse for malicious prosecution, 136. statements of, privileged communications, 122. CRIME. See Defamation. CRITICISM. See Defamation. [«] Index. D. DAMAGE continuance of, under Public Authorities Protection Act, 1893, special, must be some temporal loss, 109. 98. when necessary, 8 et seq. without wrongful act, not actionable, 8 et seq. DAMAGE BY ANIMALS. See Animals. DAMAGES, measure of, in actions of tort, 77 et seq. (1) For injuries to person and reputation, 86 et seq. aggravation and mitigation of, 83 et seq. for defamation, 84. seduction, 83, 84. consequential damages, 81 et seq. injury to trade by defamation, 82. loss of business, 81, 82. medical expenses, 81. mental shock, 81. excessive, 77. for assault, 78. false imprisonment, 78. seduction, 150. insurance not to be taken into account, 85. mistake or ill-feeling of jury, 77. prospective damages may be given, 82, 83. too small, 77. under Employers' Liability Act, 210. (2) For injuries to 'property, 78 et seq. aggravation and mitigation, 83 et seq. insolent trespass, 84. compensatory in character, 88. consequential damages, 81, 82. collisions at sea, 82. having been obliged to pay damages to third party, 93. infectious disease, 81, 82. must not be too remote, 81. continuing torts, 83. cost of repairing chattel, 80. for wrongful conversion, 79. joint wrongdoers are jointly and severally liable for, 49. loss of use" of chattel by reason of defendant's negligence, 79, 80. lightship, having been damaged by collision, 80. presumption of amount of damage against a wrongdoer, 80. prospective damages should be included, 82, 83. aliter, where tort is continuing, 83. or where distinct torts, one to person and the other to property, 83. trespass to land, 79. DAMNUM, definition of, 8, 9. I * ] Index. DAMNUM ABSQUE INJURIA, 9. DANGER, trespass under the influence of a pressing, 268. DANGEROUS animals. See Ferocious Animals. substances brought on to land must be kept at peril of bringer, 191 et seq. works, principal liable for contractor's defaults, 64. DAUGHTER, action for seduction of, 146. See Seduction. DEATH, effect of, on the right to sue or liability to be sued for tort, 69, 70. DECEASED PERSON. See Campbell's (Lord) Act. DECEIT, 161 et seq. See Fraud. DEFAMATION, 103 et seq. actual damage, when necessary, in slander, 108 et seq. damage caused by plaintiff himself repeating the slander, imputation — 110. mere suspicion insufficient, 111. must be of punishable crime, 110. of crime actual damage of itself , 110. impossible crime insufficient, 110. mere breach of trust, 110. unchastity, 110. unfitness for business, 111. office, 111 et seq. society, 111. analysis of slander, 104. damages. See Damages. definition, 103, 104. disparagement of tradesman's goods gives no cause of action, fair comment, 118 et seq. 111. criticism of such matter of public interest, 119. tradesmen's advertisements, 119. decision of court as to whether — evidence that any part of words complained, go beyond limit of, 118. matter commented on is of public interest, 118. defence of, 119. duty of jury to prove evidence not of, 118. in, no question of malice arises, 120. is outside the region of libel, 120. must be distinguished from privilege, 120. not actionable if defendant proves bona tide, 118. on public conduct of a public" man, 120. functions of court and jury as to publication, 114. [3] Index. DEFAMATION— continued. malice, 120 et seq. oral or written, 103. privileged communications — criticism, 119. of public men, 119 et seq. extracts from Parliamentary papers, 127. function of court and jury, 123. incidental publication to persons not having interest, 127. judicial proceedings, 121, 122. jury to decide whether communication fairly warranted. Parliamentary proceedings, 121. 12)5. reports of judicial proceedings, 127. legal proceedings, 122. <2«asi-judicial proceedings, 127. sending by telegram or postcard or in wrongly addressed envelope, 126. speeches at county and district councils, 128. statement made to a person having a corresponding interest, aliter Avhere made broadcast, 126. 126. where character of a candidate is, 126. servant given to intending employ* r, confidential advice, 125. 125. social and moral duty to speak, 125, 126. warning a guest of character of person in his employ, publication, 114. 125. by dictating to clerk, 115. telegram or postcard addressed to person libelled, 114, justification of, 104. 115. libel or slander must refer to the plaintiff, 113. to or by husband or wife, 115. repetition of defamation, 115. in verbal slander where the damage is wholly in con- sequence of the repetition, 116. injunction to restrain, 89, 90. printing of verbal slander, 116. slander of title and slander of goods, 129. may be in writing or in print, 130. puffing one's own goods, 130, 131. special damage, 131. what is, 129, 130. truth of defamatory statement a good defence, 117. waxen effigy, 108. when a corporation may sue, 108. actionable, 103, 104. where no disparagement no amount of damage will give a cause of action, 107, 108. words capable of bearing a defamatory meaning, 105. DEFAMATORY ARTICLE, publication of, 13, 113. liability of publishers, 13, 113. DEFECT. See Fraud. [9] Index. DEFENCE. See Assault. DETINUE, meaning of, 279. DISABILITY to sue or to be sued for tort, 45 et seq. See Limitation. DISPOSSESSION, claimant's title may be legal or equitable, 275. definition of, 274. jus tertii available by defendant, but not by plaintiff, 275. landlord claimant need not prove his title, 275. licensor and licensee, 275. limitation, 276. acknowledgment of title, 276. commencement of period of, 276. disability, 276. discontinuance of possession, 277. ecclesiastical corporations, 276. mere entry and continual assertion of claim no bar to running of statute, 277. master and servant, 275. mere possession evidence of title for defendant, 274. plaintiff must rely on strength of his own title, 274. plaintiff's title need not be indefeasible, 274. successful plaintiff, 274. tenant may show expiration of landlord's title, 275. DOGS, killing in defence of game, when justifiable, 283. sheep or cattle, 283. self defence, 283. liability of owner for injuries by. See Ferocious Animals. noisy, 227. E. EASEMENT, grantee of, may enter upon servient tenement in order to repair, 268. what is an, 237. And see Nuisance. EJECTMENT. See Dispossession. EMPLOYERS' LIABILITY ACT, 209— 211. class of servant to which the Act applies, 211. ENGINES near highway. See Nuisance. [ io] Index. EXECUTIVE OFFICERS, general immunity of, 23. F. FALSE IMPRISONMENT, 241, 253, 260, 265. See Imprisonment. FALSE REPRESENTATION. See Fraud. FELLOW SERVANTS. See Master and Servant. FELONY, how suspension may be effected, 28 et seq. remedy by action for, suspended until criminal trial ended, 28. FENCES, liability for injuries caused by dangerous, 219. non-liability for trespass of cattle if adjoining owner bound to keep in repair, 268. FEROCIOUS ANIMALS, liability for injuries caused by, 196 et seq. scienter the gist of the action for, 197 et seq. presumption of scienter, 197. proof of scienter, 197, 198. scienter when sheep or cattle worried by dog need not be proved, 197. See also Animals. FIRE accidentally arising, 200. liability of railway companies, 201. persons intentionally lighting, must see that it does no harm, negligently allowing, to arise, liable for damage to neighbour's land, 200. preventing from doing mischief, 200 et seq. under Railway Fires Act, 1905, 202. where farmer made fire on his land in high wind, spreading to neighbour's land, 201. hayrick made near boundary of land, 201. FIREWORKS near highway. See Nuisance. FLOODS, liability for, 193 et seq. . . where damage from is partly attributable to vis major, 193. FOREIGN COUNTRY, , . torts committed in, when remediable m England, 43 et seq. [ 11 1 Index. FOREIGN SOVEREIGNS not liable for torts, 46. but may waive the privilege, 46. FRAUD, 161 etseq. definition of, 161 et seq. elements of legal, 161. fraud followed by damage gives rise to action for deceit, 161, 163. fraudulent character must be in writing to be actionable, 163. liability for fraud of agent, 165. honest misstatement by agent does not render principal liable, 165. of directors and promoters of companies, 165. prospectus issued in honest belief of its truth, 166. statutory duty as to, 166. mere silence not sufficient to give rise to action for deceit, 161. negligent misrepresentation not the same as fraudulent mis- representation, 166. but may be ground for rescinding a contract, 164. or a good defence to action for specific performance, when actionable, 162 et seq. 164. actual damage essential, 162 et seq; false representation of value of business to a purchaser, 163, 164. soundnessof a dangerous instru- ment, 164, 165. not necessary that fraudulent statement should have been made to plaintiff, if intended to be acted on by him, 163. • silence amounts to, 161. where deceit and malice present, it is immaterial that there was no intention by defendant to reap any benefit, 164. lying practical joke, 164. principal intentionally keeps agent ignorant of a fact, causing misrepresentation, principal liable for, 165. FRAUDULENT CONCEALMENT, mere abstinence from mentioning a known defect is not action- able as a tort, 161, 164. G. GAME, killing dog in order to preserve, when justifiable, 283. GOODS. See Negligence ; Trespass ; Wrongful Conversion. GRATUITOUS DUTIES, when misfeasance in performance of, gives rise to an action, 40. GOVERNMENT DEPARTMENTS, heads of, not liable for torts of their subordinates, 62. masters of Government servants, 62, 63. [ 12 ] Index. GUN, accidents caused by, without negligence, 14. injury to third party by explosion of a warranted, 164, 165. H. HIGHWAY, authorities liable for damage resulting from misfeasance, 33. not liable for damages resulting from nonfeasance, dedication of, to public not a grant of the land, 271. 33. manhole put in, 34. obstruction of, 218. trespass may be maintained by grantor of, for unreasonable use of it, ex. gr., obstructing his right of sporting, 267, 271. HORSE, accident caused by a runaway, when excusable and when not, 13, 14. injuries to, by dog, 197. » HOUSE, liability for ruinous state of. See Nuisance. HUSBAND liable for torts of wife, 51. liability ceases if wife dies or marriage dissolved, 51, 52. judicially separated, 51, 52. not entitled to imprison his wife, 256. or to sue her for tort, 45. ICE, when a public nuisance, 16. IMMORALITY. See Defamation. IMPRISONMENT, by judges and magistrates, absolute immunity of judges of superior courts for, 21. private persons and constables, 260. arrest of — breakers of the peace, 262. exceptional cases in which a constable may arrest without warrant, 260. cases of suspected felony where no felony has in fact been committed, 260, 261. may arrest wherever a private person can, 260. interrupter of divine service, 263. malicious injurers, 263. night offenders, 263. no power given to husband to imprison wife, 256. [ 13] Index. IMPRISONMENT— continued. by private persons and constables — continued. arrest of — continued. officers, 256. parents, 256. particular powers of arrest given to individuals, 264. suspected felon, when justifiable, 260, 261. what suspicion sufficient, 261. vagrants, 263. acts of vagrancy, 263. damages for, 265. habeas corpus, 253, 254. imprisonment by justices of the peace for breach of the peace,, judicial authority, justification by, 257. 258. distinction between false imprisonment and malicious- prosecution, 257. signing a charge sheet is not sufficient evidence, 258. moral restraint constitutes, 253. total restraint necessary, 253. what constitutes, 253. when not justified, 256. INCORPOREAL HEREDITAMENT, injury to. See Light ; Support ; "Watercourse ; Way. INEVITABLE ACCIDENT. See Accident! INFANT, generally liable for his torts, 46 et seq. aliter if founded on contract, 47. unborn, may claim damages under Lord Campbell's Act if father killed by negligence, 46. INJUNCTION, cases where damages given instead, 89. church bells, 89. general rule as to granting of an, 87 et seq. granted even where it will inconvenience public, 90. injuries remediable by, 87 et seq. interlocutory or perpetual, 87 et seq. rarely granted to restrain a libel, 89. mandator}-, 87. noise, for, 88. noxious fumes, for, 88. obstruction of light and air, 89. pollution of lake, 89. remedy by, 87 et seq. when granted to restrain libel, 89. INJURIA, meaning of, 8. INSANITY, imputation of. See Defamation. [ 14] Index. INSOLVENCY, imputation of. See Defamation. INTENTION not always material in torts, 12 et seq. INTIMIDATION, when actionable, 155 et seq. INVOLUNTARY TORTS, when actionable, 12, 13. joint owners; trespasses of, towards each other, 272. JOINT TORT-FEASORS, liability of, 49. only one cause of action, 50. what rights of contribution between, 49. when partner commits a tort in regard to any third person, 50. JUDGE, powers of, to imprison. See Imprisonment. statements of, absolutely privileged communications, 121. JUDICIAL OFFICERS, general immunity of, 21. JUDICIAL PROCEEDINGS, how far privileged communications, 121, 122. JURISDICTION, torts committed outside, 43. JUS TEETH, defendant in ejectment may set up, but not claimant, 275. JUSTICE OF THE PEACE. See Imprisonment. JUSTIFICATION. See Assault ; Defamation ; Imprisonment - Trespass. LANDLORD, occupation of servant of, equivalent to personal occupation, 275 title of, cannot be disputed by tenant, 275. when liable for nuisance on demised premises, 222. [ 15 ] Index. LIBEL. See Defamation ; Injunction. LICENSEE, possession of, is the possession of the licensor, 275. LIEN, sale of goods held under, a wrongful conversion, 288. LIGHT AND AIR, implied grants of light, 243. a man cannot obstruct on property granted by him to another, 243. in general no right to air can be gained, 243, 244. aliter for access of air through defined openings or passages, 243, 244. no right to, ex jure natures, 242. right to, can only be by prescription, grant or reservation, 242. rights to light gained by prescription, 243. interruptions sufficient to rebut prescription, 243, 244. no interruption allowed after nineteen years, 244. but injunction not granted until full twenty years, 244. what amount of damage necessary to support action, 243 — 245. where the right arises by express grant depends on con- struction of the grant, 244. where the right arises by implied grant or prescription the sole question is whether the deprivation amounts to a nuisance, 244, 245. LIMITATION commencement of period of, 96. commencement of period when tort continuing, 96. concealed fraud, 94. conversion, 95. disability, 97. arising subsequently to commencement of period, 97. in the case of nuisance, 97. taking away support of land, 95. when tort consists of actual damage, commencement of period of, 94. great distinction between real property limitation Acts and those relating to chattels, 96. in particular cases. See under the several headings of those cases, of actions of tort, 94. reasons for, 94. under Employers' Liability Act, 210. Public Authorities Protection Act, 1894, 98. LOSS OF SERVICE. See Seduction. LUNATIC liable for his torts, 46. [ 16] Index. M. MAGISTRATE. See Imprisonment. MAINTENANCE, definition of, 143. when action maintainable for, 143. not where common interest between maintainer and main- tained, 143 et seq. nor where maintainer actuated by charitable motives, 144. MALICE not usually material in torts, 14 et seq. MALICIOUS PROSECUTION, 133. bankruptcy, maliciously taking proceedings in, 140. definition of, 133 et seq. factors necessary for maintaining action for, 133, 140. "prosecution" includes bankruptcy and liquidation proceed- ings, 140. when actionable, 140. (1) Prosecution by defendant, 134. prosecution ordered by a magistrate on defendant's infor- mation as to facts not sufficient, 134. unless defendant after ascertaining the innocence of plaintiff maliciously continues the prosecution, 134. (2) Want of reasonable and probable cause, 135. amount of care required, 13G, 137. duties of judge and jury as to, 135. onus of proof on plaintiff, 135. opinion of counsel in favour of prosecution no excuse, 136. what constitutes, 136. (3) Malice, 137. adoption of proceedings already commenced, 134. defective memory, 138. generally implied, 137. honest but stupid mistake, 138. knowledge of defendant that he was in the wrong, evidence of malice, 137. malice may be implied in a corporation, 138. subsequent malice of the defendant, 134. to stop plaintiff's mouth, 137. (4) Setting aside of proceedings, a condition precedent to action for, 138. explanation of the reasons for this, 138, 139. (5) Actual damage must be proved, 139. need not be pecuniary, 139. MANUFACTURE, noxious or offensive, an actionable nuisance. See Injunction • Nuisance. l.t. z [ 17 ] Index. MARRIED WOMAN cannot sue her husband for a tort, except for protection and security of her own separate property, 45. her husband also still liable, 51 et seq. liable for her torts, 51 et seq. may sue for a tort without joining her husband, 45., MASTER AND SERVANT, as to enticing and seducing servants. See Seduction. general liability of master for torts of, 56 et seq. accidents occasioned by carelessness of servant, 56, 58 et seq. constitution of a binding ratification, 55. contractor or intermediate employer liable for torts of workmen, 65, 66. distinction between unlawful method of doing what he was engaged to do, and unlawful act completely outside the scope of his engagement, 58 et seq. job-master liable, and not hirer of horses, 57. liability of master for assaults of servant committed in scope of his employment, 60. master not liable for injuries caused by servant while driving master's carriage on business of his own, 58. master not liable for servant's torts when committed outside, or beyond scope of his employment, 56, 58 et seq. master not liable for torts committed by persons employed by servant to do his work, 61, 62. master when liable for illegal act of servant, 56. liable for wilful act of servant if within the general scope of his authority, 56, 58 et seq. meaning of term " servant," 56. ratification of servant's tort, 54, 55. servant giving person into custody is not usually acting within the scope of his employment, 59, 60. unauthorised delegation by a servant of his duties excuses master from delegate's torts, 61, 62. who are servants, 57. inducing servant to break his contract of service, 146, 153. master may in general sue for a tort which deprives him of services of servant, 73. aliter if servant be killed, 73. when person liable at common law for injuries caused by servant to fellow servant, 204 et seq. And see Employers' Liability Act. master knowingly employing an unskilful servant, 204. not liable where there is common employment or a voluntary acceptance of risk, 204. meaning of common employment, 204. personal negligence of master, 204, 207. volunteer helpers are in the position of servants with regard to suing the master for negligence of his true servants, 208. aliter where acting with master's consent or acqui- escence, 208, 209. [ 18] Index. MEASURE OF DAMAGES. See Damages. MEDICAL EXPENSES. See Campbell's (Lord) Act. MEDICAL MEN, negligence of, 39. slandering. See Defamation. MINE, flooding of, by water brought by defendant on to bis land actionable without proof of negligence, 193, 194. MISFEASANCE, 34. highway authorities liable for damage resulting from, 33. liability for, 41. MISREPRESENTATION. See Fraud. MISTAKE no justification, 12, 13. MITIGATION. See Damages. MORAL GUILT generally immaterial in cases of tort, 14 — 16. aliter in case of fraud, 15, 16. N. NECESSITY, may excuse wbat would otherwise be a tort, 19; 268. NEGLIGENCE, actions by representatives of a person killed by, 71 — 75. See Campbell's (Lord) Act. amount of care required depends on circumstances, 167, 168. bailees of goods, duty of, 176. caused by want of skill, 168. contributory, 181. contributory negligence of carrier to whom plaintiff lias entrusted himself, no excuse, 183. in infants, 183. joint negligence of plaintiff and defendant, 182. where contributory, affords no excuse, 182. definition of, 167 et seq. duties of judge and jury in actions for, 187. duty of occupiers of land and houses, 171. as to licensees and guests, 173. trespassers, 173, 175. not to set spring gun on land, 175. injuries caused through defective grand stand, 174. journeyman gasfitter falling through trap-door, 174. landlord and tenant, duty as between, 172, z2 [ 19 ] Index. NEGLIGENCE— continued. duty of occupiers of land and houses — continued. not to put any unexpected danger without warning Keen see, 171. obstruction in private road, injury caused through, 175. person coming by invitation, 171, 172, 174. to use reasonable care to prevent damage, 171. duty to take care arises out of many relations, 167. extra care required where defendant has control of dangerous things, 177 et seq. dangerous and savage animals, 196 et seq. when scienter necessary, 197. stacking of hay, 201. entrusting loaded gun to inexperienced servant girl, 179. selling deleterious hairwasb, 179. or even lending dangerous chemicals or other things without warning, 179. third person finding loaded gun consciously firing it, 179. grouping of relations necessitating exercise of care, 167, 168. highway, duty of persons using to take care, 169. negligence of person driving or riding on, 169. illustrations of effective cause, 184, 185. not actionable unless it be proved that defendant's negligence was the proximate cause of the injury, 184. of carriers of passengers, 170. infant travelling without a ticket, injured by negligence, company liable, 171. person injured whilst travelling on footboard of train in defiance of a byelaw, 171. onus of proof of, 185 et seq. accident capable of two explanations, 186. aliter where the accident would not be likely to happen without negligence, 185, 186. generally on plaintiff, 185. heavy article dropping out of window, 186. railway train thrown off the line, 186. runaway horse, 185. skidding motor omnibus, 186. NEWSPAPERS. See Defamation. NOISE. See Injunction ; Nuisance. NOXIOUS TRADE. See Nuisance. NUISANCE, actions in respect of, 220. allowing dangerous things (such as water or electricity) to escape, 192. definition of, 217. description of nuisances, 217, 218. either public or private, 217, 218. examples of, 218 et seq. [ 20] Index. NUISANCE— continued. franchises, 238. right to vote for member of parliament, 238. rights of ferry and market included in, 238. trade marks, copyrights and patent rights included in, 238. line between public and private, rather fine, 287. malicious motive immaterial, 225. meaning of term, 217. prescription to commit, 232. by Prescription Act seldom necessary to presume lost grant, 233. twenty years enjoyment of right, 233. right given to discharge foul water on land, 232, 233. private, what is, 217. (1) Private injury from public nuisance, 218 et seq. abatement of public nuisances, 221. boys breaking railings of area, owner not liable, 224. dangerous adjacent buildings, relative liabilities of land- lord and tenant for nuisance caused by, 223. examples of public nuisances, 218 et seq. church bells, 88. excavations on highways, 218. fumes, 88. ruinous or dangerous fences or premises on high- ways, 218. liability of highway authority, 219. landlord and tenant respectively, 221 et seq. excavations not adjacent to roads not actionable, 219. owner or occupier not liable for nuisance created by a third person without his knowledge, 223. particular damage, 220. business interfered with is, 220. being rendered dark or less commodious, interference with private right is, 220, 221. 220. obstruction cutting off access to highway, 221. of a highway, 221. public nuisance only actionable in respect of, 220. when actionable, 218. authorised by statute, 219. (2) Causing injury to corporeal hereditaments — definition of, 225. disgusting fumes, 226. distinction between injury to property and annoyance in its user, 229. entertainments causing crowds and noise, 227. immaterial whether plaintiff goes to the nuisance or it to him, 230. interference with enjoyment of property, 227. noise from pestle and mortar nuisance to consulting room, 231. [21 ] Index. NUISANCE— continued. (2) Causing injury to corporeal hereditaments — continued. noisy dogs, 227. entertainments, 227. printing machine, 231. trade, 226. overhanging eaves, 227. trees, 227. pigstys, 227. reasonableness of place, when no excuse, 228. small-pox hospital, 227. the nuisance must be material, 225. (3) Affecting incorporeal hereditaments — disturbance of natural right to support, 238. easements and servitudes, 237 et seq. no right to support by subterranean water, 240. aliter of other substances such as wet sand or pitch, profits a prendre, 237. 240. railway and canal companies have no right of support, remedy by abatement, 235. 240. not applicable to prospective nuisances, 235. pulling down inhabited house, 236. injunction. See Injunction. of reversioner, 234. right arises ex jure natures, 239. of sxipport for land burdened with buildings, 241. can be gained only by prescription or grant, 241. may be similarly acquired for support from adjacent houses, 241. to light and air, 242 et seq. See Light and Air. watercourse, 245 et seq. See Watercourse. wavs, 248. See Way. subterranean water, pumping brine from, 240. title to easements, 237. where natural right to support is infringed, the con- sequent damage to a modern house may be recovered, 241. 0. OBSTRUCTION of light and air, 244. See Light and Air. road, 248. OUSTER. See Dispossession. [ 22] Index. PARTNERS, liability of, for each other's torts, 52 et seq. for torts other than fraudulent misappropriations, ib. fraudulent guarantees, 53. is joint and several, 53. PARTY- WALL, trespass to, 272. PERJURY, imputation of, not actionable, unless made with reference to a judicial inquiry, 110, 111. no action lies for consequences of, 122. PERSONAL PROPERTY, trespass to. See Trespass. PIGSTY. See Nuisance. PIT, accidents from unguarded, 13. POISONOUS TREES, 195. POLLUTION OF WATER, 246, 247. POSSESSION, writ of. See Nuisance ; Trespass. PRESCRIPTION. See Light and Air ; Nuisance ; Support ; Watercourse ; Way. PRINCIPAL, liability of, for acts of agent, 55 et seq. See Agent. PRINTER. See Defamation. PRIVATE WAY. See Way. PRIVILEGED COMMUNICATIONS. See Defamation. PRIVITY in torts arising out of contract, 38 et seq. PROBABLE CAUSE. See Malicious Prosecution. PROBABLE CONSEQUENCE, every man presumed to inteiul the, of his acts, 12. PROFESSIONAL MEN, negligence of, 39. PUBLIC CONVENIENCE does not justify a tort to an individual, 90. PUBLIC NUISANCE. See Nuisance. [23] Index. PUBLIC RIGHT, infringement of, coupled with peculiar damage to an individual, 7, 10. PUBLICATION. See Defamation ; Defamatory Article. Q. QUALIFIED RIGHT, infringement of coupled with damage, 7, 10. QUESTIONS, 293. R. RAILWAY COMPANY. See Contract; Master and Servant Misfeasance ; Negligence ; Nuisance. RATIFICATION. See Master and Servant. RECAPTION, remedy by, 290. REPLEVIN, action of, 291. REVERSIONER may enter into and inspect premises, 268. no remedy given to, for mere transient trespasses or nuisances, 234. remedy of, for injury to land, 234. obstructions, 234. for injury to personal property, 284. some injury to the reversion must be proved, 234, 235. RIVER. See Watercourse. RUINOUS PREMISES. See Nuisance. RUNAWAY HORSE, how far owner liable for damage caused by, 13, 14. s. SCIENTER. See Ferocious Animals SEDUCTION, action for, whence arising, 145. [24] Index. SEDUCTION— continued. contract of service, when implied, where the girl is plaintiffs daughter, 146 et seq. small services suffice, 147, 148. when daughter lives with her father, and is a minor, service is presumed, 146 et seq. aliter where the daughter acts as another's house- keeper, 148. not even where she supports her father, 148. where service to another is put an end to, the right of tin- parent revives, 149. damages in, 150. And see Damages. aggravation of, 150. breach of promise of marriage not technically matter of aggravation, 150 n. mitigation of, 151. previous immorality or looseness, 151. daughter, of, father may bring action for loss of services of, 146, 147. if parent helps to bring about his own dishonour he cannot recover, 149. of orphan girl, action by brother, 149. servant from master's employ is actionable, 146. relation of master and servant essential, 146. relation of master and servant must subsist at time of seduction and of confinement, 146 et seq. temporary visit no termination of service, 147. who may bring action for, 147. SELF-DEFENCE, tort committed in, 19, 254, 255, 268, 283. SERVANT may sue for loss of luggage or personal injury although master paid the fare, 39. See Master and Servant. SEWER, nuisance caused by defective, 218. SHAFT, unguarded, 13. SHEEP, injuries to, by dog actionable without proof of scienter, 197, 198. SHOOTING by accident not actionable, 14. not guilty of imprudent act, 14. SLANDER. See Defamation. SOLICITOR, slandering a, 112. [25] Index. SOVEREIGN not liable for torts, 46. nor foreign, 46. SPRING-GUNS. See Nuisance. STATUTE, acts authorised by, actionable when negligence proved, 25. not actionable, 24, 25. STATUTORY DUTIES, breaches of, 31 et seq. created for benefit of individuals, 31 et seq. the public, 32, 33. highway authorities not liable for neglect to perforin, 33. negligence in carrying out, 25. of highway and sanitary authorities, 34, 35. STRIKERS, torts by, 153 et seq. SUPPORT. Sec Nuisance (2). T. TENANT cannot dispute landlord's title, 275. but may show that title has expired, 275. See Landlord. TEST QUESTIONS, 293. TITLE. See Dispossession ; Trespass. TORT, act or omission must be unauthorised, 19. authorised acts or omissions, what are, 11. colonial governor is not a sovereign, and may be sued for, 48. classification of rights, 11. of property, 12. definition of, 7, 11. distinction between actions for, and for breach of contract, 37. nature of a, discussed, 7 et seq. relation of, and contract, 37 et seq. waiver of, 279. who may sue for a, 45. be sued for, 46. TRADE MOLESTATION, breach of contract, inducing, 153. without sufficient justification, 153. by threats, violence and conspiracy, 155. warning employers of consequences is not a threat, 156. where people by conspiracy further their own trade interest, 157. [26] Index. TRADE MOLESTATION— continued. procuring breach of contract by fraud, 155. securing custom unlawfully, 157. passing of goods as those of another, ir>8. Use of one's own name, lf>8, 159. under Trade Disputes Act, 1906, 154. TRADE UNIONS, torts by members of, 153 et seq. Trade Disputes Act, 1906, gives, complete immunity from actions of tort, 48, 49. TRAP, illegal to permit any danger to exist in the nature of a, 171. even against trespassers, 173. TREES, poisonous, overhanging a neighbour's land, 195. TRESPASS, To the person, 249. actionable without proof of damage, 249. See Assault ; P>attery ; False Imprisonment. To lands (guare clausum f regit), 267 et seq. And see also Dispossession. any user going beyond that authorised, 267. ex. gr. unreasonable use of public right of way, 267, 268, by straying cattle, 267. 270. damages for. See Damages. definition, 267 et seq. driving nails into wall is, 267. injuries to party walls, 272. justification of, 268. carrying awa} T of soil by one of two joint owners, 272. in distraining for rent, 268. driving cattle off plaintiff's land, 268. executing legal process, 268. by grantee of easement for the purpose of making repairs, justifiable, 268. reversioner inspecting premises, 268. in escaping a pressing danger, 268. under due legal authority, 268. re-taking goods, 268. limitation of actions for, 272. of joint owners, 272. onus of proof of title lies on prima facie trespasser, 270. plea of liber um tenementum, 269. jx>ssession by relation, 271. dates hack to title, 270. necessary to maintenance of action for, 270. reasonable working of coal mine by joint owner, 272. remedies other than by action, 273. distress and damage feasant, 273. to highways, 267, 271. [ 27 ] Index. TRESPASS— continued. To lands (quare clausum fregit) — continued. justification of — continued. trespassers, ab initio, 269. when surface and subsoil in different owners, 271. when two people are in adverse possession, possession in persons entitled, 270. no actual damage required to support action for, 267. remedy for, by distress damage feasant, 273. To goods, etc., 279. action of replevin, 291. conversion to enforce pledge, 284. defendant cannot in general set up jus tertii, 288. destruction of goods by bailee, 282. distinction between fraudulent contract and no contract, excessive sale by sheriff, 281. 282. good intention no excuse, 280, 281. killing game or animals ferce naturcp, 283. kindly officiousness may amount to, 281. no remedy if animals get injured whilst trespassing, unless defendant used unreasonable force, 283. no tresjiass if plaintiff in fault, 283. possession necessary to maintenance of action, 284. follows title, 284. bailee delivering goods to an unauthorised person revests possession in bailor, 287. damages for sale of goods by persons having a lien, 288. possession of finder, 288. prima facie proof of title, 288. sale by a person having a lien is a trespass, 288. trustee may maintain trespass for injuries to goods when possession actually in cestui que trust, 288. what possession suffices, 288. purchasing goods without title, 282. in market overt, 282. recaption, 290. shooting a trespassing dog, when allowable, 283. stolen goods, 291. to animals, 281, 283. trespass ab initio, 286. in defence of property, 283. exercise of right, 284. legal authority, 284. self-defence, 283. trespasses of joint owners, 290. waiver of tort, 289. TROVER. See Wrongful Conversion. TRUSTEE ... . , may maintain trespass or conversion for injuries to goods when actual possession in cestui que trust, 288. L 28 1 Index. U. UNDERGROUND WATER, man has right to pump, from subsoil under his own land, 15. not actionable when spitefully done to injure neighbour being lawful act, 15. UNFENCED SHAFT OR QUARRY, 13, V. VIS MAJOR excuses what would otherwise be actionable, 191, 193. exceptions, 193. VOLENTI NON FIT INJURIA, 27, 189. doctrine of, 189. inapplicable to breach of statutory duty, 190. situation of alternative danger, 188. incurring risks, 27, 28. not conclusive evidence of, 190. VOLITION, how far necessary to tort, 12, 13. VOLUNTEERS not iu general entitled to recover for negligence of a party or his servants, 208, 209. w. WALL, party, 272. trespass to, by sticking nails into it, 267. WARRANT. See Constable. WATER, causing accumulation of, whereby another's property is injured, is actionable, unless injury caused by vis major, 193, 194. aliter, if caused by fault of a third party, 194. WATERCOURSE, damage essential to an action for disturbance of, 246. disturbance of right to use of, 246. drawing off underground water, where actionable, 246, 247. fouling a well, 247. penning back water in, 247. prescriptive rights in derogation of other riparian proprietors, 248. right to use of surface watercourse vested in riparian proprietors, aliter with regard to subterranean water, 246. 245. rights may be gained in an artificial, 246. [29] Index. WAY, customary right of, 248. obstruction of a public, may be a tort, 10. private, 248. only gained by prescription or grant, 248. prescriptive rights of way, 248. private right of way distinguished from public right of, 248. right of, 248. strictly limited by terms of grant or by mode of user, 248. WIFE, damages in such action, 72. liability of husband for torts of, 51. may sue for loss caused by the killing of her husband, 72, 73. without joining her husband, 45. WINDOWS. See Light and- Air. WORDS. See Defamation. WORKMEN'S COMPENSATION, alternative remedies, 216. if right to or amount of compensation disputed, 215. sei'ious and wilful misconduct proved, employer not liable, liability of employer to pay compensation, 212 et seq. 214, 215. accidents — " arising out of," 213, 214. " in the course of," 214. injury by, 213. what is, 213. scale of compensation, 215. in the case of death, 215. total or partial incapacity, 215. what workman must show to entitle him to compensation, under Act of 1906, 211. 212,213. to whom it applies, 215. words " injury" and "accident," meaning of, 213. WRONGDOER, all things are presumed against a, 80. any possession sufficient to sustain trespass against a, 270, 284. WRONGFUL CONVERSION, conversion and detention, 286. judgment for return of specific goods, 287. in an action for, 286. is for damages only, 287. plaintiff need not show good title to goods as against every one, 286, 287. only show that he is entitled to them as- against defendant, 286. proof of, 287. to maintain an action for, 286. conversions of joint owners, 290. [ 30 ] Index. WRONGFUL CONVERSION— continued. definition of — "conversion," 279. " detention of goods or detinue," 279. " trespass," 279. possession follows title, 284. any possession suffices against a wrongdoer, 288. possession of finder, 288. prima facie evidence of title, 288. sale by one having a lien is a conversion, 288. unauthorised delivery by bailee revests possession bailor, possession necessary to maintenance of action for, 284. 287. recaption, 290. replevin, 291. restitution of stolen goods, 291. reversioner cannot sue for, 284. reversioner's remedy, 284. subsequent conversions of lawfullv-obtained chattel, 286. waiver of tort, 289. what is, 279. conversion of damages, 280. destruction of goods by bailee, 281. detinue for return of goods, 280. excessive execution, 281. good intention no excuse for officious interference, 281. purchase of goods from a person not entitled, even by a bona fide purchaser, 282. from person who has obtained goods by fraud may or may not be a conversion, 282. is convicted of obtaining tin- goods by false pretences, 283. of goods in market overt, 282. selling another's goods by mistake, however bona fide, 282. when defendant may set up jus tertii, 288. LONDON : Printed by Butter-worth & Co., 2, Crane Court, E.C. INDEX TO CANADIAN NOTES. ACCIDENT see Masted and Servant; Negligence. AGENTS liability for acts of agents and quasi agents, t!8a. ANIMALS trespass by domestic animals, 278'/, 278b. ARCHITECT when employing Architect does not relieve party from liability, 190c/. ASSAULT AND BATTERY when action for damages for, must be commenced within four years, 100a. damages for, 266a. jurisdiction of magistrates in cases of, 266e. person assaulted may arrest offender, 266c. when civil action for, barred by criminal proceedings, 30c, 266/, et seq. when civil action for not barred by criminal proceedings, 30d, 266/, et seq. ATTACHING ORDER cannot issue where action wholly in Tort, 30a. AUTOMOBILES liability of owner for wrongful act of servant, 68c. onus of proof on owner or driver, 190o\ BAILMENT duty of involuntary bailee in respect to unknown owner, 42b. onus of proof where goods entrusted to bailee are lost, 190a. where bailee fails to explain damaged condition of articles, neg- ligence presumed, 190/. whether relations, that of bailor and bailee or master and servant, 216c. a bailee may entertain an action against a wrongdoer, 292b. BANKRUPTCY no bankruptcy law in Canada, 7C>n. [345] 346 Index to Canadian Notes. CAMPBELL'S (LORD) ACT see Fatal, Accidents Act. CARRIERS not liable for gross negligence, in the carrying of a gratuitous passenger, 42b. CAUSE OF ACTION what it means, 30a. COMPANIES see Corporations and Companies. CONSTABLE cannot make Board of Police Commissioners liable for negligence of, 50c. when constable may arrest without a warrant, 266o\ CONTRACTOR cannot delegate duty in undertaking works inherently danger- ous, 50/. CONTRIBUTORY NEGLIGENCE the doctrine of, does not apply to an infant of tender years, 68c. may be a defence in action founded on a breach of statutory duty, 76c. effect of contributory negligence, 190a. where both plaintiff and defendant negligent, 190/. CONVERSION of goods, mode of estimating damages, 866. lost goods in hands of bailee, 292a. whether detention of a chattel is or is not a conversion. 292". CORPORATIONS AND COMPANIES action for s'ander will not ordinarily lie against a, .50a. may be liable if spoken by servant in direct obedience to orders, 506. may be liable for malicious prosecution if actuated by what in an individual would be malice, 506. promoters of a company liable to repay money, paid for stock sub- scription induced by false representations, 68a. right to judgment over, where found jointly liable for injuries, 686. promoters of companies are liable for fraud of agent procuring stock subscription, 166c. Index to Canadian Notes. 347 COUNSEL advice of, no excuse in malicious prosecution action, 142b. CRIMINAL CONVERSATION when action barred, 1006. CRIMINAL LAW Sec. 13 Code, no suspension of civil remedy, 30rt\ Sec. 119, Code, selling pistol or air gun to minor, 36b. Sec. 290. Codes, assault, 266a. Sec. 55, Code, where justified in using force, 266a. Sec. 53, Code, self defence, 266a. Sec. 35, Code, protection given a constable when he arrests with- out a warrant, 266d. Sees. 709, 732, Code, jurisdiction of J. P's. and magistrates in cases of assault, 266c. DAMAGES what damages are consequential and what too remote, 86(1. when verdict for excessive, will be set aside, 86a. mode of estimating where party injured voluntarily submits to unprofessional medical treatment, 86a. measure of damage, manner of computing, 86b. in action for trespass, how computed, 86c — 86b. measure of damage, 86a 7 . natural and probable result of act, 86(7. damages from nervous shock, 86c in actions for libel, slander, 132b — 132«. damages for assaidt, 266a. proving special damage, in slander, 132c. DEATH effect of death on right of action, 76a. DECEIT See Fraud. DEFAMATION generally, 132'/. where criminal offence charged sufficient if words impute gist of offence, 132b. innuendo, proving, 132b. words libellous per se, 132b. are the words used capable of a defamatory meaning? 132c. will not ordinarily lie against a corporation, 50a. may be liable if spoken by servants of corporation in direct obedi- ence to orders, 50b. 348 Index to Canadian Notes. DEFAMATION— Continued. libel published by wife, husband liable for, 68a. there must be publication of slanderous word before action can be maintained, 132a. right to maintain depends on what other persons understood the words to mean, not what plaintiff understood by them, 132a. when husband liable for libel published by wife, 1326. DETINUE action for, must be brought within six years, 100a. DRUGGIST negligence of, 42a. EASEMENT unity of ownership extinguishes all pre-existing easements, 248/. how abandonment of an easement may be shown, 248/. ELECTION when defendants are not joint tort-feasors, plaintiff must elect against which defendant he will proceed, 50r. ELECTRIC LIGHT liability of Municipal Corporation in operation of, 50c. company may be restrained by injunction from committing nuis- ance, caused by vibration, 92a. ELECTRICITY negligence as to, 202a. ENTICING AND HARBORING civil liability for, 152a. EVIDENCE in assault cases, circumstances of provocation may be given in, 266a. onus of proof, 190(7. EXECUTORS AND ADMINISTRATORS may bring action for all torts in connection with the deceased's estate, except in libel and slander, 76a. may be sued for tort committee by deceased. Action must be brought within one year, 76a. administrator of foreigner may maintain action, 76dL fair comment uliat amounts to, 132fl. Index to Canadian Notes. 349 FALSE IMPRISONMENT constable, no right to handcuff an unconvicted prisoner, unless lie attempts to escape, '26Gb. what must be proved in order to succeed in action for false arrest, 266c. where justice issued warrant without jurisdiction, proof of mal- ice or want of probable cause is unnecessary, 206c/. FATAL ACCIDENTS ACT can only recover where plaintiff shows reasonable expectation of pecuniary benefit from life of person killed, 76b. administrator of foreigner may maintain action pursuant to pro- visions of this act, 76'/. quantum of damages recoverable under the act, 86/. in fixing damages jury must take into consideration the life insur- ance payable on the life of deceased, 86g. FENCE liability of Railway Co. for death of boy who got on track through defective fence, 76c. FIRE negligence in the control of, 202/. using, for industrial purposes, 202c. threshing engine causing, 202