UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY — ooOoo— Allri^n V. fivie. 24 Alexander v. Newcastle 70 Alexander v. ^outhey Allsop V. Allsop Anonyrrjcus (11 Hen. IV. ) Anonyon,us ( 5ed. IV.) Anonymous {9?A. IV. ) Anonymous (5 Hen. VII. ) Anony[iio4s (Keilway ) Anthony v. Hany ' ases. 54 148 171 29 22 37 25 Brown v. Kendall 15 Brown v. Perkins 34 Bruch V. Carter 13 Bullock v./ Babcock 15 Burling v^ Reed 29 f Burrcugh:^ v. Houston ic H.Gc. 125 Bushel v;. 'ailer 43 Butterfleld v. Forrester B7 Buxendin v. Sharp 131 Byne V;! Moore 155 BatGhsldre v., Heagsn Bailiffs of Rotnnriiny Varch V. Trinity Rouse Baldwin v. 3cle Barns v, Campbell Barns v. Ward Barrows v. Bell Basly V. Clarkson Bassett v, Vaynard Beach v. Hancock Bedford v. Bagsha-.v Bell V. Hansley Bellfontaine ?■ I. R. Co. Snyder Bennett v. Deacon Bernina The Binford v. Johnston Bird V. Johns Bishop V, St. Paul Co. Blackham v. Pugh Blades v. Higgs Elaisdell v. Stone Blcodbalm Co. v. Cooper Blyth V. BirminghaiT: rl . Co Eobb V. Bosworth Boswortji V. Swasy Bcwen v. Hall Box V. Jubb Brill V. Flagler Bromage v. Possor Brown v. Collins Brown v. Giles Brown v. Hummel 1 124 59 54 108 154 15 42 o 143 20 101 1 -s^ 99 71 10 00 25 129 104 PO 26 81 170 123 34 149 123 127 111 Cabot V. Chrystie Cairpbell v. Boyd Campbell v. Race Campbell v. Sherman Carpenter v. Bailey Carpenter v. Manhattan Co. Carrington v. L.& N.R.Co. Carter v. Towne Carterville v. Cook Chase v. Ingalls Chesley v. King Child V. Affleck Cincinnati ^c.R.Cc.v.-niitb Clark V. Kelliher Clark V. Vclyneux Cleveland R.M.Co.v.Corrigan Cloon V. 3erry Clutterbuck v. Chaffers Cole V. Fisher Cole V. Turner Collins V. Renison Com' 1th V. Clark V. Crotty V. Kennard Consolidated Co. v. Cunis Cottrill V. Krum Coward v. Baddeley Cox V. Bur bridge Coxhead v, Richards Curt in y. Somerset 13S 115 33 38 151 111 71 74 37 173 157 111 >"4 151 94 164 144 13 39 39 51 143 133 157 105 2. 4 1. r.vi.-c V. oardiner li7 Gannon v. 'Vilson 79 Davies v. Mann 88 Gautret v. Fdgerton 115 Davids V. SoloiTion Davis*. V, Campbell 148 25 Gennor v. Sparkes George v. Skivington 8 103 Davis y. Central 5c. Soc. Dean v.^McCarty Decksr v'. Ganirron 117 Gibbons v. Pepper 5 124 132 Gilbert v. ?tone Gilnian v. Noyes 35 32 145 Classey v. HestcnviJle''-'.Co. 101 Delacroix v. Thevenot Denny v. ■I.Y.C.R.R.Co. 51 Glever v. Hynds 35 Derry v. Peek 137 Grainger v. Hill 138 Dewey v. 'Vhite 31 Green v. Dunn 54 Dickinson v. JA'atscn 14 Green v. Goddard 22 Dole V. Frskine 21 H. Donovan v. H.i.St.J.R.Co. 97 Haddrick v. Heslcp 135 Doherty v. Stepp 12 Hairilton v. Lomax 18 Doyle V. Vance 132 Harrison v. Berkley 39 Duncoflibe v. Daniel 158 I^arrison v. Bush 153 ir_ Hart. V. Aldridge 138 tdeineton v. ^itzn-aurice 135 Harvey v. Waine 29 iihrgott v; Vayor of N.Y. 57 Hatch V. Lane 159 '^'llis V. Loftus Co. 12 Haycraft v. Creasy 139 '^insland v. Cowley 53 Heaven v. Pender 103 ten V. Luyster 57 Hegarty v. ^hine 17 Heeg V. Licht 125 F. Higginson v. York IS Fallon V. O'Brien 133 Hill V. 'Unsor 36 Parrar v. 'lollins 42 Hiort V. BoLt 53 Pent V. Toledo ^-c. R. Co. 83 Loag v. Lake Shore R. Co. 34 B'illburn v. Peoples P.fA. C130 Hogle V. N.Y.C.R.Oo. 74 Fitzgerald v. Cavin 18 Hcllins V. Fowler 50 FletTiininfi v. Orr 131 Holn;es v. Mat.her n Fletcher v. Fletcher 31 For ton v. Benders hot t 38 Fletcher v. hy lands 119 Hounsell v. S.Tyth 114 Forsdick v. Collins 43 Hoyt V. Jeffers 63 Foshay v. f'ersuson 134 Hunnewell v. Duxbury 143 '»'css v. Hildreth 149 Foster v. Charles 140 1. Fotherineham v. AdanisCo. 10 Illidge V. Goodwin 72 Fouldes V. Valloughby 43 Indeniauer v. Dan.es lis Frome v. "'ennis ^5 Innes v. v'^ylie y Frost v. '^astern R.R. 112 Ireland v. FUiott 35 G. "alena 5c. R. Co. v, Jacobs 92 J. Jackson v. Hoppertcn 150 Gallagher v. Humphrey 115 James v. Campbell 14 Salliard v. Laxton 40 James v. Bayward 33 Galvin v. Bacon 44 Jencure v. Celmegs 151 Joann&'S v. benn^tl Johnson v. Farr Jones V. Boyce Jones V. 'illianis Keck V. Halsteaci Ksffe V. ■ . t.P.K.Jo. ''ellofig V. ,.:nicagoSN.W.R • Hill •■■, idney v. Stoddard '• irby V. Roster- Kirk V. 3rep;ory Klcus V. Henn^sey Krum V. .Anthony 15^ 61 ^1 iia 97 44 lSS 26 171 McConald v. Snelling VcGrath v. Merwin S^cPherson v. Daniels Meredith v. Reed/ Vilwaukee R.Co.^.Ksllcgg Milissich v. Ldoyds Miller v. Bakj^r ■/illsr V, Civil Vitchell V. /Jenkins Mogul Co. V. McGregor Morris v. /^lugent Mortin v.jShoppee Mouse's Cfese Mulgrave v. O^den Murphy v. Oeane 80 149 p« 34 154 13 148 185 171 21 41 90 Lane v. Atl. ^'orks Langridgs.v. Levy Lashus V. Matthews fatter V. Braddell Lawless v. Anglo-F:gyp.:;;o Leonard v. Ailkins Livernicre v. Batchelder Loker v. Canon Long V. ''toodnian Lords Bailiff v. Trinity House Lorinc v. f^ulcahy Louisville N.R.'o.v.Hurt Low v. Uwell Lu.T.ley V. 3ys Lynch v. Knight Lyons v. Cesotelle M Mahurin v. Harding V arent.il is v. Oliver Varks v. !?aker f/arlow v. V.'ssks i/ars V. Delaware Zo. Marshall v. Aelwoca L'arvin v. 3hg.R.Cc. Mason v. Keeling Mathews v. L.S.J.'.Go. '/8X Morris, T'he May v. Burdett Waynard v. B.&M.R.R. McOcnibie v. rjavies 7? m 17 .156 23 24 75 59 45 109 28 16P 71 -1 1S7 Nashua Co. v. The 91 12 7- 12S 65 131 180 110 Meal v. ailleU c c IvewcojRb v. 3.P..:ii;o.. Nelson v. '.heL.iiore r* o .Newell V. Randall 157 Nev;,T.an v. Phillipsbur-i-.R.'^.Oo 100 NewiLan v. ^achary 170 Newton v. Harland 27 Nichols V. Marsland 1>.2 Nichols V. Newsom 52 Norris v. Litchfield 79 Noyes v. Colby 126 jgden v. Claycomb Criminal ''^rit Csborne v. Veitch P. Padmore v. Lawrence Palmer v. N.P.R.Oc. Parkar. v. Cod in pasley v. Freeman Pastens v. Adams Patrick v. Colerick Pay son v. .I'acci-nber Peek V. Curnsy People V. iVarrsn Per ham v. Coney Phillips V, '^ilpers Pickering v. Rudd Pike V, 1 1-*^ _ 20 156 110 49 134 7:- 30 9 142 37 47 110 12 Q •^luninier v. Oiil Peoppers v. Missouri Pcoier V. Reed Pol hill V. -alter Proctor y . Alan.s Proctor V. ■'■ebster Puiln;sn V, Hill Furcali 7. iowlsr Puljian. V « Payne ^ueen v. c w. 'auniers rnimbv V. '-'ociburv i-'aventa v. 'mackintosh Read v, Coker neardon v. ThOiTipscn ^sess V. Barbee Ssgina V. Justan Segina v. Saundsrs -ex V. Smith "^gynolds \/ . Mussey Nichardson v. Atkinson "-•OSS V. Johnson '-osssll V. r'otton ■^ussen V. Lucas 'Myalls V. Leader ^yan v. N.Y.O.P.R.Co. Sylands v. f^letchei' Salisbury v. Herchenrcder 'rchst'fer v. ■'■ashingtonR.Co. Schubert v. J.P.Olark Co. :cott V. ohepherd ^herfill V- Van Dusen Snith V. L.5- S. . . ^ Smith V. Land Corp. SiTiitn V. "tone Smith V. fripp Smilh V. Young Snyder v . Andrews 115 Stanley v. Powell 15 65 State V. Beck 3S ?.9 State V. Downer QO 141 Stearns v. Sampson k B? Steele v. burkhardt 7S 157 Steinflseta v. Kelly C,C 160 Stephens v. ■'v:.rs .- 154 Stevens v. . „. ^is FF cp Stevens v. Sanipson 154 Stiles V. ^eesey -?: 53 Stone V. jck *c. C^o. P.'i 9? Surroco v. 3eary -1 -uttcn V. 'iauwatosfc ■^ '^ "»eeny v. Oia :;oiony -.t-.Co. 11? 1S5 T. ■^'arleton v. l/c3a>?ley 171 114 Tasker v. -tenley IS? oc Taylor v. "hitehead V \Z Thoiras v. Cusrterniaine 17-? ■^hciras v. ''l.nchester ?1 Thorlsy v. Kerry V--. ISl Tillett V. '^ard 1?7 4i Thoirpscn v. Tashwocd 1 crs ''? TonsvTanna v Hunger V- 1 -c '■^'cogcod V. "'pyring 15^ - "1 2n 'i'aylcr v. Horrall r1 1 : -.^ Tuberville v. '^'avage k"; I'utf V. 'arrran ao 110 I'ullay v. t^eed ?-''= 104 30 1^^5 ■'-' \ 1S6 1 '- 145 Somervilie v. Hawkins 15C South ^ fvorth ^^.R. Co. v. Don. Ill Southcote V. Stanley 117 Spocnar v. I^anchester ^^H Union Fac.R."B:v. Collins 1?8 U.S. V. sichap^soti .3 Jsill V. Hales 153 V. Vaaderbilt v. vathia? I66 Veu^han v. Venlove gfi Ficare v. ?:ileox 70 Victorian CcictE. v. Coultas /a Village cf Cartspville v.CocJc f^ ?:achupst V. Dan:.ite ?s ?.'asner v. Bissell ise Wallace v. Merr-imaok: f^a.QiO. HP. talker v. Cronin 172 V.'aptaan v. G*indell iq Wason V. ralker 152 Weaver v. '.Vara la. V.'elch V. ?;esson 78 V/entyfoPth v. McDuffie 4b '.Veils V. Kowell 126 .Vetmore v. Mellingep IA7 iVhite V. Lang fii White V. T-Tvitohell io 150 '.Vinterbottom v. ^^pi^ht lo? 'Vood V. Lane " o VJoolley V. Scovell fii ?;ya30pe v. Mahaska Co. 16? Y. Youi V. Hapbottle 40 J0^ rc VOLUME I OhacLer T. Trespass i Becticn i. Assault i 'Section II. Battery c i Section III. ImprisoniVient 8 I Section IV. Trespass upon Real Property 1? ' Section V. Trespass upon Personal Property ]' Section VI. Recusable Trespasses l^'l ! (a) Accident and i/istake 1 (b) Leave and License 17 | (c) Defence of Self and Closely Allied Persons 20 ' ( a ) Defence of Property •"■~ (e) Kecovery of Property <-- (f) Preservation of Life, Health, or PrcDirtv c" "ihers 31 •(h) Abatement of Nuisance ?- f i) Viscellaneous Excuses ?: {;]) Arrest without A'arrant 87 (k) Justification by Officer under Judicial Process 37 Chapter II. Disseisin and Conversion 40 Section II. Conversion 40 (a) Nonfeasance 40 (c) Destruction, or Change in Nature or Quality of a Chattel. 42 (c) Asportation 4? (d) Defendant a Purchaser, Fleds^ee, or Bailee of a •ronaf ul Transferor ■ . fe) Misfeasance by Bailee 47 (f ) Defendant actinfi as Agent or Intermediary '. (g) Miscellaneous Acts of Dominion ..44-51 (h) Demand and Refusal c' f i) 'Excusable Conversion c: Chapter III. Hef arnation ■:ecticn i. Publication ' ' Section II . Libel 1>S Section III. Jlander 1^6 (d) DefaiTiatory ''^ords not aciionable per se, but causing Special taioage 1 -"^ Section IV. Justification 149 (a) Truth of Publication 1^" (b) Repetition of Another's StateiLsnt 1 ■ Section V. Absolute Privilege i Section ^'1. Fair Comment or Criticis;ii Section VII. conditional Priviie^'e 152 (a) Frivile^^ed Reports 152 (b) Conmiunications in the Coninion Interest of the '/aker and Receiver, or in the Interest of the *'aker alone ■ 155 ^c) ^otrmiunications made in ihe InteresL oi the Recipient 157 (i) ['xcess of Privilege 158 Section ^'I II . V a 1 ice 1 /!P OHAPTfiR IV. Malicious Prosecution 1S3 Section I. !i'alicicus Prosecution of Oriirinals 133 Proceeling 133 Co) Vant of Probable Cause 134 Ic) Malice 135 (d) Daroaoe 166 Section V. Malicious Institution of a 3ivil Action without Arrest or Attachment Ic7 Section ^'T. Vglicious Abuse of Procar^s 1 Q<~' OHAPIYrt V. Malicious Injury to the Plaintiff by Influencing the Conduct of a Third Person 166 Section I. By Inducing or Aiding a Third Person to Conimit a BreacJi of a Legal Duty to the Plaintiff 138 (a) '!'he Duty of a Servant to his Master 138 (b) The Duty of a 'Aif e to her Husband 138 (c) The Duty of a Contractor 139 (d) The Duty of an Individual not to Commit a Tort 170 Section II. By Influencing a Third Person '.Vhc Owes No Legal Duty to the Plaintiff 171 (c) By Force or Threats 171 CHAPTSR VII. Malicious Use of One's Property in Order Lc Injure the Flff 173 CONTfMTS TO VOLUME' II. Chapter I. Legal Cause -S Chapter II. l^'hether Plaintiff's Action is Barred by His Own ''>rcn£ 78 Chapter III. Negligence in Relations not Arisin.g Directly cut of Contract. Standard of Care Degrees of Care 83 Chapter IV. Concur ibutory Negligence 87 Chapter V. Imputed Ksgligence xP Chapter VI. Whether Negligence of ?.<3ker or Vendor of Chattel may make him liable to Persons other than these contracting with him IC- Chapter "' K Duty of Care on the Part of Occupier of Land or Buildings 108 Section 1. Duty of Care towards Persons using Adjacent Pub 1 ic '^ ay 108 Section II. Duty of Care towards Trespasser 108 Section III. Duty of Care towards Licensee 114 Section IV. Duty of Care towards Invited Person 11^ ' Chapter VIII. 'i'xtra-Ha2,ardous Occupations. Acting at Peril. Duty of Insuring Safety 119 Chapter IX. Liability for Dire or '^ xpiosives 124 Chapter X. Liability of Owner, or Keeper, of Animals 123 Section 1. Trespass by Animals on Land 126 \ Section 11. Dama^^a bv /inimals, other than Trespass on land 130 ■ "Chapter XI. Deceit 33d Section 1. Ceneraliy. - Nature of Representation 134 Section II. Representation not True in Fact 135 Section III. Defendant's Relief as to Truth of Representation. . .1?7 Section IV. Defendant's Intent that Plaintiff should act on the Representation 140 ^ Section vi. A'hether Plaintiff is barred by failing to use the Means at his command to detect the Falsehood ]''r The •^'l•ill^n Law consists oi ihe OonsLituticn and the Statutes. The C^OBinion Law consists of the decisions aiade by the judges, that is, is %o be found in the reports of the decided cases. It, is neather necessary nor possible- to have a case on every point of law which a^ay arise, but one shouio know the principles upon which the cases have beeh decided which have already arisen, and should apply those principles to all cases as they coo'e up. Formerly students of law were put to studying its principles fros! text books. in cur system we work out the principles frorri de- cided cases,' and then read what the text writ.ers have drawn out of the same cases. A Tort is a wrons noi arising by aisre breach ci contract ana lor which there is a remedy by a civil action at the suit of the party in- jured. A crime generally involves a lort but a Tort does not necessa- rily include a criire. A Fort is not a irere breach of contract, but there niay be a Tort in connection with a breach of contract. BOCKS ON rORTS, Thirty years ago Ghitty on Pleading was the best book on torts. Today there are several good works:- AMERICAN fiZ Cooley on Torts. Non-Contract Law Bishop. Bigelow's iie.Tients of the Law on Torts. ENGLISH TORKS. Pollock on lorts. Clerk and Lindsell on Torts. Pollock is the best text book for our purposes. Clerk and Lind- sell will be often referred to. Chapter 1. Trespass. Section 1. Assault. 1. De^ 3. and Wife v. . \ H the Assizes, 0348 or 3349. 'h, came to ?'s tavern at nient after wine and pounded on the door with a hatchet,' the door being closed. S's wife put her head out at a window and told him to stop, and he struck at her with the hatphet but did not hit her. HFjLD, an assault nevertheless,, for there was reasonable apprehension of physical harrn, though none actually in- flicted. 'he inquest is about the san^e as the ir.odsrn jury. The harm done was the frightening of the female plff. The last sentence of the cpinicn was by the reporter. Tuberville v. Cavage P. 2, Kind's Bench, ISSa. Deft., to justify a battery on Plff. showed that Flff. putting his hand on his sword, said "If it were not assize- tiri;e, I would not. take sucb 'U.nguage from you"; HBLDj,;, no justification; for, where no PRSSENt intention to inflict harrr. appears, there is no assault. The act was a threatening one, but the lansua^e accofiipanyinfe it showed that there was no intention to assault. •■'ords are not the only thine that would show the absence of such intent. It, might be otherwise, indicated by an act,. But, the absence of intent does not excuse negligence y.QKTiN V. SHOFFSft P. 2,. Nisi Friuf, 1823. Deft, rode after Flff . rapidly, causing hini to take refuge in his garden. Daft, used threatening language, "Come out and 1 will lick you before your own servants." H'i":Ln, an assault as it cut Flff. in terror and caused him to flee. Although there was no physical injury the apprehension or fear of it, caused the Plff . was enough to constitute an assault. Oase is in line with the preceding two to show that actual physical contact is not necessary. .-■^"•'^PHF.ifi V. 'AX' . . Nisi Frius. 1830. Flff, was chairxan ci a rreeting. Ceft. was ccistercus and on uiotion it, was voted to expel hin; from the room. He said he would pull the chairican froir. his seat before he v/ould be expelled from the room, and i mined iat.sly advanced with his fist clenched toward the chair- man, but was stopped by the churchwarden, who sat next but one to the chairman, at, a time when he was not near enough for any blow he might have meditated to have reached the chairman, but, the witnesses said that it, seemed to them that he was advancing with an intention to strike the chairman. "^ L" , if he was so advancing that, within a second or two of time, he would have reached the Flff., it is an assault. This case shows that there must be not only words evidencing an intention to assault, but also, present ability to carry the intention into effect, and something done in pursuance of the intention. To sum up the cases thus far, physical contract is not necessary to constitute an assault. 1. De S, and 'i*;ife v. W. De S. and Mortin v. Shoppee. There must be an intention to assault. Tuberville v. Savage. There must be present ability to carry the intention into effect, and something done towards carrying it into effect. Stephens v. .Viyers. ^?:AC V. "CK"R, P. :. Jonion Pleas, • . Deft,, and his men surrounded Flff. and, with sleeves and aprons tucked up, threatened to break his neck if he didn't leave the room. He left. , that there was an assault,,, as there was a threat^ of violence exhibiting an intention to assault, and a present ability to carry the threat into execution. I'his case introduces auoti.^i.- eienicint, viz., the reasonableness of the apprehension of violence. There must be reasonable apprehension of violence. Threats are not, sufficient;. .Acts must accompany then: looking to immediate violence. Aords may explain an otherwise doubtful action. In this case the doubt was whether it was g reascn- ablc fear. ^ "rule nisi" is a conditional order of the court, an order v/hich will become final unless good cause be shown why it. should not. Notice is then served on opposite party. In abstracts, it is generally best, to state briefly how the ques- tion came bei"ofe the court. Two or three technical words. Also the nature oi' action,' and of Deft.'s plea. Then give just enoueh fact/fe to (I'ake the point of law clear. I'hen the point decided and the reason of the decision. \ Head v. 3oker is also reported 17 Jurist 990 and ??■ L.J.,i|i.3. ?01. \The reasonableness of Plff's apprehension is a question of fact for the .iury. '.^ere words do not constitute an assault, but they are admit- ted t(5 eiv3 character to acts. OSBORN V. VEIfCH,. P. 7. Nisi Frius, 1858. Defts. were walking with loaded guns at, half-cock in their hands in a field of plainiiff's. On refusing to withdraw,, and being approaches by Plff .• they pointed their 2uns toward the latter, and threatened to shoot, H?:LD, to be an assault,: as pointing a loaded gun at a person is in law an assault. j'he kina of intent necessary to constitute an assault, is the reason- able intent gathered by the plff. from the external surrounding circum- stances and not "the hidden intent" of the party assaulting. Here Plff. would naturally suppose the guns were loaded. mU^ STjVrf:S v. Richardson, P. 8, U.S. Circuit "curtv 1SH7, ■ Deft, came into a house where Mrs. Shelton was sitting, and raising -a club over her head, threatened to strike her if she said a wora. HiiiLD,. to be an assault.,' as Deft.'s language showed his intent to strike upon violation of a condition which he had no right to impose. This was an indictment for a crin'inal assault, but the rule of law would have been the sanie had the action been a civil one. B?ft::)H V. Hancock, P. 8, New Hampshire.aSSS, Oeft.. pointed a gun at Plff. in an excited and threatening manner. Plff. did not know whether or not the gun was -loaded, and in fact the gun was not loaded. H5LD,: that it was an assault, on account of the very reasonable fear produced. There is no present ability to hartr. bodily. ''hy was Deft, liable? He had ability to create fear. "It. is an assault if the Plff. had reasonable cause to believe gun loaded and Plff. wss actually put in fear of receiving bodily injuries therefrox, and the circumstances of the case were such as ordinarily to produce such fear in mind of reasonable man." .Phis was held to be law in 110 Mass. 409 and 2 Humph. (Tenn. ) ^57. ::onipare this case with Osborne v. Veitch. They show what kind of ai. intention is necessary. Suppose the following cases :- (a) The sun wss not iocxuc,; ana Plii. knew il ana the iJeft. thinking however that it was loaded, snapped it at the plaintiff. An action for assault would probably lie. (b) /\ is weak,i and B is strong;-. B anticipates a blow from A,, when in an altercation with hi.ir:. Here an action for assault would lie. The fear or apprehension necessary to [pake an act an assault does 4. not necessarily' have Lo be a craven fear. It i?^ sufficient if it is Tiereiy aporehsnsion of physical contact. (-) A is blind; B intends to kill him, and snaps a gun at him. Gun dc)es not go off. '■ does not know of this fact, but when told of it later\ brings an action for assault. '.ould the action lie here'^ i. On the 'ground of present ability, or means, the action would lie. jn tna Krouau ol apprehension the action would not lie, but Frc- tessor r.uith thinks an action lies. 3T~iiHN3 and '^UF''] v. 3AMPS0N.. P. ii, l/aine, 1871. reft. 33 landlord gave notice to ^^^s. Stearns, his tenant, to leave his house, 3he refused. 'Vhereupon Ceft. and his aien retnoved furniture, took out windows, prevented food from being brought, let in a dog,' etc., so that ^*rs. Stearns finElly left by coirspulsion with an officer and was sick several week. . L'), there was no assault. Indignities which em- barrass and distress may not, constitute assault. i''ords do not constitute an assault and embarrassing acts do not nec- essarily constitute an assault. Tn criniinal cases, the ground for conviction for assault is usually u:r„ o^me as would sustain a civil action. Aords indicating intention to assault are not actionable, because Oeft. can be put under bonds to keep the peace, and because it would cause the bringing of frivolous actions. \'TGT0HIAN RAIL'^AYS COMMI33I0N!i"RS,' Defts. and JamSS "OULTSS and MARY 00ULTA3, Plaintiffs, F, 13. Privy Council, 1888. Defendants (husband and wife) were driving one evening. wcming to a railway crossing they found the gates closed. The gate-keeper opened the nearest, and then walked over to the other. Oeft. followed. A train was coming along at great speed; Deft, barely escaped being hurt. Mrs., 3oult3s fainted, and the shock caused 8 considerable illness. After su- ing and winning their case in the lower court, this case cajiie up on ap- peal. Hf-LD, that the dangers were too reniote. The tnaiish law of neg- ligence is that the danoages must be the natural and reasonabl'e result of Deft's act; such a consequence as in the ordinary course of things would flow froif the act. The nervous shock in this case was not such a conse- quence. See full report of this case in 1? Vict. L,R. 895, in which is sia- ,ted an important fact omitted in the report of Privy Council in 13 Ap. Gas. ?22, vi2. ,■ that, "the female plaintiff received a severe shock, which brought on a !niscarri:ge." Query: Does not a nervous sncck invfolve physical injury? In such an action as this,- it is necessary to prove: (a) ihat the defendant was negligent; and (b) that the negligence caused the damage; and (c) that the dainage so caused by defendant to plaintiff is of a kind of which the law will tske noiice, and for which it will afford redress in a civil action. As to (c) see S Harvard Law Review, 203;. 204. If mere mental pain is caused, it is ground of action if intentional. Query: Is it so if caused by negligence? It is not true to say that the law does not allow a recovery for mer^ mental fear, as is shown in cases of assault. in assaults however, the fear is intertticnally caused. Frivy Council said that the damages must be the reasonable result of defendant's act. ^s contra to Coultas case, see: 76 Texas,' 210, 48 t/iinn.. lc>'t, cz N. Y. Supp.. 74^. As almost accord, see 85 i'ex. 412. As to telegraph cases (mental anguish caused by delay of message see: 37 -Vis. 1,55 Fed. Rep. 503, 9 Lewis Amer. R.R.^ C. Rep. 770 - 773. See also, Innes on Torts: harm to person sec. 17. The court held that a nervous shock was a mental injury and that for a mental injury a plff. cannot recover. This latter is contra to tele- graph cases which hold that for a mental injury Plff. may recover. In this case there was no intent to harm. So the Question arises may negligence create liability for assault? ^'ost certainly it may. In the great majority of cases to that effect there is however intent to in- jure. In addition to references cited by note, and in opposition to aecis- ion is ?5 N.Y. Supplement 7^4. Innes on T'orts, Section 17 discusses this principle Lhoroughly. He says, "Injury to person consists of harm to body or mind, provided that the prejudicial effect, so termed, is a physical condition, capable of be ing tested, and is manifested." The telegraph cases are reported 55 I^'ed. Rep. 803 and 57 H. 'A'. Repor- ter 978. Section 2, Battery, Cole v. Turner. P. 17, Nisi Prius, 1704 Holt, C.J. declared that the least touching of another in anger is battery; thit a gentle touch without violence or design of harm is no bat- tery, and that violence used in a rude or inordinate manner is a battery. The idea of hostility is involved in the decision of Cole v. Turner. A slight touch, without violence or malice, is permitted by usages of so- ciety. Gibbons v. Pepper P. 17, King's Bench, 1695. Trespass, assault, and battery.' Deft, pleaded his horse ran away, and, through no fault of his, injured the plaintiff. Plff. demurred. HELD, that as, if a man riding a horse injures a bystander, he is liable only if accident resulted from his own fault. Deft, should have given this justification in evidence, upon the general issue pleaded. He did not, so judgment must be given for plaintiff. Deft's plea amounts to the general issue. He virtually said that the act was not his act. Accordingly he could not plead in justifica- tion of an offense which he had not com.mitted. The case was lost on technical grounds, Plff. having pleaded in justification instead of the general issue. ?his case is also reported in Ames cases on pleading F. 58. Holmes and Wife v. Mather, P. 19, Exchequer, 1S75. ni Deft., with a groom as driver, were out with a pair of horses. The animals became frightened and uninjnageable. Mter running a long distance they finally came to a corner, where they must turn or run into house opposite. Groom pulled hard on right rein but could net quite bring them around; a smash-up resulted and female Plff. was knocked dov.ii and badly injured. A verdict for the Plff. having been granted, and a rule nisi having been obtained, it was HELD, that the accident was not caused by act of Plff., but happened in spite of him. An accident which driver of runaway horses is doing his best to prevent is net actionable. Rule discharged. True test of battery is not whether a hostile intent en the part of the Deft, but whether an absence of consent on the part of the Plff. can be inferred. "lerk and Lindsell en Torts, P. 131. In Holmes v. Vather there is no choice of things to run into made by Deft. Inne-o v. >ylie P. ?4, Nfisi Prius, 184-1. Assault. Plif. undertook to enter a room where a society was din- ing, and was prevented from entering by i policeman, who act"fed at orders of Deft. H'^iL'^, that if policeman was entirely passive in obstructing Flff's entrance, there was no assault. If he took active measures, there was. Here passive obstruction is not an assault. — Pollock. Had Plff. alleged exclusion, he would have been entitled to an ac- tion, but not for assault. Plff. must prove what he alleges, otherwise thrown out for "variance." Coward v. Baddeley, P. ?4, l-^xchequer, 1859. Assault and giving Plff. into custody of police. Deft, was direct- ing a stream from a hose on a fire. Plff. thought he wasn't doing his work well, so began to give advice. finally laid hands on Deft, to at- tract his attention. A'hereupon Deft, gave him over to a policeman and he was imcrlsons-J -nd taken before .T3ci'^tr'=Jtes. ^■"■eft. pleads Plff's as- inere is no douot but what Fiff. laid hands on Deft., but jury said that it was- not done hcstilely. The Zt. said that touching a m.an to at- tract his attention was not an assault and battery, such as will sup- port a criminal prosecution or justify an arrest. Dcurt did not settle at all the question of civil damages, but only the criminal liability. In this case the act of Plff. was without any implied license from the firem.an to touch him. There was ^'-ove force t>sn ivgs necessary, so Plff. was liable. Hostile intent is not necessary for a civil battery. Dlerk ana Lindsell on Torts P. 131 say the true test is noL whether a hostile intent on part of ';eft., but whether an absence of consent en 7. Lhe Dart of ihe Plff. can be inferred. If Louched on shoulder by friend to attract attention it is no tres- pass,' if within ordinary customs or usages of society. Original^ Writ. p. 27. Throwing' any liquid upon a person wouia oe an assault and baLLery. See the note on Ames on p. 27. Battery does not necessarily mean an injury inflicted by an instru- ment held in the hand. It may be thrown, shot, etc. It has been held that the foilowing are trespasses to the person :- i. Injury to the clothes on the back. 2. Reuioving an ulster from the Plff. 3. Striking a cane in the Piff's hand. 4. Cutting a rope connected to the Piff's slave and Plff. Dubuc De Marentiiie v. James Oliver, p. 27, New Jersey. 1808. Plff. was out driving. Deft, struck his horse violently with a large stick. On trial for assault before a Justice of the Peace, Plff. was given damages. Assigned for error that, action for assault cannot be supported before a Justice of the Peace. In the upper court it was HUiJ, that act of Deft, certainly was an assault on the person of the Plff. and so the Justice haa no jurisdiction. If trespass on property had been charged, Fiff. would have had to show injury to horse. Judgn'ent reversed. :upposed Case: B, standing behind A.' and within shooting distance, fires a loaded gun at A, intending to kill him. but does not hit hiir;. A, who is stone deaf, is not ir:ade aware of the attempt of B, until the next day,' when he is informed of it by a letter fron; a bystander. Can A maintain an action (civil) agains-t, B? See Pollock on Torts, 2nd hd. 193, Note (•:,• See Bigelow 'I'le. of J'orts, ^th ^i. 122, note c. DSFINITIONS. Bigelow. (p.!! 24) "A battery consists in the unpermitted application of force by one aian to the person of another." SA!/I';. (p. 121) "A owes to B the duty to forebear to hit or touch him in anger, rudeness or negligence, or in the cojimission of an unlawful act'.' FRO?'. Jeremiah Smith says, "Battery is the unpermitted application c force by one man to the person of another, directly or indirectly, either hostiieiy or rudely though without damage, or negligently with damage." Force is physical contact.. Unpermitted, is not permitted either by the plaintiff or by the law. i-ee for other definitions. Cocley on Torts,, p. 1-". Bigslow. ^J^T^rt^ of Torts,' ^^'d. p. 12^.- ASSAULrS. Vol. 2, Bisncp's I'ievv OriTiinal Law. Sec. >i., is best, definition. "An assault is any physical force, partly or fully put in rroticn, creating a reasonable '^r'-i-ehension of immediate physical injury tc a hurrar being." 8. P . luith, (founded on foregoing), "An assault is any physical' force, part/iy or fully sel in niotion (unlawfully) by a human being, crea- ting on theipart of another human being, a reasonable apprehension of iiii- ;nsdiaL,e unpei'mitted physical contact (with himself)." For oth^ definitions of assault, see Cooley on Ton.-; p. !:■:, •.•.aich seems to excli^de "negligence." PROF. Sniilh suggests, that on a bar sxaniination, he would add to his definition,' that the candidate was perfectly aware that by an assault was ordinarily understood to be included the idea of hostile intent,; and by a battery was ordinarily understood to be included as a necessary element anger or rudeness, but that the candidate was trying to give something more than a mere technical definition, and had in mind what is an actual violation of t,he right of personal safety, and therefore extended the terms of assault and battery to these actions. In Innes on Torts it, is said, "A man is not said Lo intrude upon the person of another, when his conduct is not hostile or insulting, and the' damage done is of such a character that It vniJ not be resented by a pert- son of ordinary sense and temper." JON'iiS V. /;YL1E: Mere passive obstruction is not an assault. OOW.ARD V. BADOELFjY: Test is absence of consent. See Clerk and Lindsell, p. 131, as to actions for wrongful contact. "The true test, is not whether a hostile intent on the part of the defendant, but whether en absence of consent on the part of the plaintiff." C!J- L. SFj'S Stephen's Digest of Criminal [iaw. Art. Jr'll . "Such acts as are reasonably necessary for the common intercourse of life are not, assaults or batteries, if they: are done for the purpose of intercourse only, anc with no greater force than the occasion requires." SF:f: also Pollock on Torts. 2nd f:d. p. 194. QU'^RY: Define the right to personal safety, for the violation cf which the law affords a remedy by a civil action, dropping the terms cf "assault" and "battery". ''.lements of iinswer are: 1. Freedom from hostile or rude contact., even if without damage. 2. Freedom froni negligent contact resulting in actual physical harm; otherwise expressed as,- negligent contact with damage. 3. Freedom from reasonable fear of immediate (unpermitted) phisical contact, when such fear is occasioned by the acts of anotjier, and not by words only. t-i.D. If we include the "deaf man's case", „o must, ada, - rriecoji/ from appreciable immediate peril, intentionally caused by the hostile act of another, even Lhoueh such net is unknown at the time to the person- in peril. Section '■-., Imprisonment, p. HO, = Note by Thorpe, C. J., 1348. There is said to be an imprisonment in any case where one is arieste: by force and against his will, although it be en the high street, or elss- vi^here,- and not in a house, etc. 3KNNEfi V. SPARKS, p. 30, King's Bench, 170'L Bailiff with a warrant for B's arrest, approached him and told him 9. that he had a wacrant. A hereupon B kept him from touching him, and Re- treated into his house. And it was attempted to show that B was in con- tempt ci" court. H!i]LD,' bare words will not make an arrest. To make the arrest there must be a physical touching, or what is tantamount,,' a power of taking immediate possession of the body, and the party's submission thereto. RU33ILN V. LU3AS.. p. -l, nisi prius, 1S>^. Action against sheriff for an escape. Question whether person was arrested or not. Officer went to him and said, "Vr. Hamer, I want you." Hamer told him to wait outside and he would join hiir,. Officer went out and Hamer escaped. Mere words not submitted to, do not constitute an imprisonment. This action was brought for an escape, and not for failing to use due dil- igence to ii;ake an arrest. Flff. should have brought an action on the case for not using due diligence, or for improperly failing to arrest. Plff. could have brought the latter action, even after bringing the one he did in this case. liaise imprisonment is the unlawful imposition cf I restraint upon a person against his will whereby he is entirely or in / large part deprived of his natural liberty of action. if Hamer had gone with the officer, the arrest would have been good. Acquiescence alone is not sufficient, but that together with an act sig- nifying acquiescence is sufficient. AOOD v, LAN^' and ANOTHE-R, p. HI, Nisi Prius. 1834. Plfi. was in a store. Cieatcn came in and demanded xoney Plff. owed him. On being refused he went out and returned with Lane, his at- torney's clerk. Pointed to Plff. and said, "This is the man." Plff. said, "I suppose 1 am to go with you," and being assured in the affirma- tive he went out with them. As a matter of fact deft,, had no power to arrest Plff. HSLC, that if you order a man tp go with you, and he goes, against his will,' thinking you have power to force him to do so, it is ar, arrest. The question is whether he goes voluntarily or involuntarily. It was decided that an arrest can be made without touching a man. If a man being ordered to do so goes with another, ■ supposing that other to have the power to force him to do so, it would be an arrest,, though an unlawful one, if the person making the arrest had not, the lawful author- ity to make such arrest. FIKF, v. HANSON, p. 33, New Hampshire. 18S8. Trespass for assault and false imprisonment. Deft.s, were 'Selectmen of a town. They assessed a list of taxes and appointed a Collector. Latter was in room with Plff. and after she had refused to pay her, tax un- til she was arrested, he told her that he arrested her. Then she paid. HftLD,. that in ordinary practice words are sufficient to constitute an im- prisonment., if they impose a restraint upon the person,: as in this case. 'A'ords uttered with ability to enforce, and submitted to, constitute an arrest. The case of Herring v. Boyle was omitted, cut it seems to lay down that the presence of the party supposed to be imprisoned, and his cogniz- ance of such restraint, is necessary ... - V- ihe party „-ust u "^t be unwili,n^ lo po 10. thoueh he tv-v fo voluniarily. Lt Col , 'ssouL'i, "or two weeks FJfft'. was constyntly guarded by detectives employed by DefL. At no tinre was he free to come and go as he pleased. Con- stantly examined and cross-examined touching the robbery, clearly showing that he was regarded as a criminal, and that force would be used if he tried to 'escape. In fact he was deprived of all real freedom of action. HELD, to h)e unlawful imprisonment. BIRD V. JONES, p. 36, Queen's Bench, 1S45. Part of highway was enclosed for spectators of a boat race, who paid for their seats. Plff . came along and wished to pass through. He was checked, but after a short struggle, got in. Two policemen were then stationed to keep him from going any farther. He remained where he was, although informied that he might go out in any other way. HELD,^ by a ma- jority of the court, that to call this imprisonment would be to confound partial obstruction and disturbance with total obstruction and detention. To constitute imprisonment a man's liberty must be annihilated,' not limi- ted merely. Lord Denman dissented, considering imprisonment to be any restraint of a jrari's person by force. 'Majority of the court held, that there was not a substantial total deprivation of liberty. SRE Innes v. I'.'ylie, ante. In supposed case of a person, shut up in a room with all egress shut off, except that by lifting latch of a window, the same will open. SEE "Breaking" in burglary, 2 Bishop's New Criminal Law, Sec. 19, as to wheth- er it would be right to lift latch. As to false imprisonment, see IS New -c. -.aiss hep., ?5>1 , As to false imprisonment definition, see Bishop's Non-Contract Law, Sec. ?06, see Bigelcw, ^:ie. of Torts, A !,''eft. were in a shooting party. Latter fired at a bird, a shot glanced froiri a tree and wounded Plff. Jury found no negligence. HELD,' that in" orSer to constitute a defense in case of trespass, it is not necessary to ishow that the act was inevitable. It is merely necessa- ry to show that De^t. was entirely without negligence. Judgment for Deft.. Accidental injury neither negligent nor wilful is not an actionable trespass. The .jury found that there was no negligence on the part of the Deft. It is an open question m the United States as to whether the use of firearms is extra hazardous. This is a good case for reviewing the old authorities. Bullock V. Babcock. p. 64. New York, 1B?9. Trespass, assault and battery. Parties were small boys. One had a bow and arrow, said to Plff., "I will shoot you." Latter hid behind something. Plff. shot at a basket. Deft, raised his head at that moment and was bsdly wounded. HSLD, that Deft, was liable, injury not resulting, fron- unavoidable accident, even though Deft, was very young. An infant is liable for torts. BROAN v. KENDALL, p. 67. Mass., 1850. Trespass, assault and battery. Two dogs, belonging to Plff. and Deft, were fighting in the presence of their masters. Deft, took a stick and beat the dogs to separate them. Dogs moved toward Plff., Deft. keeping on beating them with his back toward Plff., finally in lifting his stick, hit Plff. in the eye. HPLD, that if Deft, in doing a lawful act, unintentionally wounded Flff., then Plff. must prove want of due care, in order to recover. :/.ost important cf all ijiese case^. :lK A'alker's Am. Lav.' Sec. 208; 3 New Hampshire 365. Ttiis case is now regarded as law everywhere. Tb; judge's charge, final rulings, etc.. should be learned. The act of striking with the stick was intentional, but ihe act of hitting the Plff. in the eye was not intentional, it was an accident. The parting of the dogs was a lawful act and in the case of a lawful act a man is liable onlv for ordinary care, that is.^ due care considering the circumstances any surroundings. BASELY v. 3LARKSCi\. p. 7c, rang's Bench, 1661. Trespass for breaking close and cutting grass and carrying il away. Deft, pleads that he was mowing his own adjacent land and involuntarily and by mistake cut some grass on land of Plff. Flff. demurred. HELD, that Deft, is liable. For act was voluntary and intention and knowledge cannot be considered for they cannoi be knovm. At that time a tender was of no avail as k defence; it is of avail now. The case was decided as though no tender had been made. Only de- 16. fence here was that of a mistake of title in land which could not avail Peft. A non-ne^li^ent mistake as to the title of the property is no de- fence to an action of tort. Applies to tangible property. Law goes farther to protect real than personal property. The physical act of entry was voluntary. Glutting Flff'i ,-iaos wao s mistake. Question is, was there negligence. Intent can be judged only by action. "K'ltention not traversable" aoes not hold today. Questions of intent are tried every day. 'i^Jase comes to this: Mistake as to owner- ship of 'property will not excuse trespass on the property. Holmes, 153, 97-98, gives reason for this. HI3GINS0N V. YORK, p. 72, Wass. 1S02. Trespass for breaking and entering close of Deft, and carrying away wood. "Deft, master of a vessel, was employed by one Kenniston to take s cargo of wood from a certain island. Deft, took the wood, sold it, and paid K. K. had bought the wood from ens Phinney, and Deft, was ignorant of the fact that latter had cut it without any right, on land belonging t. Plff. HfllLQ,^ that. Deft, was clearly a trespasser in going, without risht, on land of Plff. His mistake was no answer to Plff,, no reason why they should lose their chattels. He is clearly answerable as a trespasser, for the value of the wood. Adds to Basely v. Olarkson, "Deft, is liable, even though he receive: no benefit,, and even if there are two wrong doers before him." Deft, did not get the benefit nor was he the wrong doer primarily. These are the two distinctions between this case and Basely v. Olarkson. The principal cannot confer any more right on his agent than he has him- self. The agent might, have an action here against his principal. Supposed cases - four carriages badly damaged. Accident. (1) struck by lightning. (2) collision with another ncv preventable by ordinary care on the part, of either. (3) collision not intended, but could have been prevented by ordinary care on part of other driver. (4) carriage run into by another racing illegally on the high- way, but driving with reasonable care. 'A-^: 1. No human liability; 2. Done by human being and no human liability, being unavoidable; ■ . as unintentional, but not using due care; was liable for act. ) hat it was unintentional is no defence, if it could have been prevented by the use of due care; 4. In this case, was not negligent, but act was illegal in itself. 32 Conn. 85. (1st) All acts which are inevitable or unavoidable because brought, about by the ope at ion of nature alone. (2) Those resulting wholly from human agency, but which were unavoidable under the circumstances, by the exercise of the care required for such. (8) Those resulting wholly or in part from hu- man acts, but which were unavoidable by using the degree of care, require., by law, in the performance- of an act lawful in itself. (4) Those that could be avoided by refraining from attempting to perform an act unlawful in itself,- even if performed with care. An act that, was unintentionsl, and without negligence, and despite due care,' will ordinarily excuse a trespass. Some authorities require 17. extraordinary care in some few cases. STEFHF.N'S Digest, of Criminal Law, Art. 210. "An effect is said to be accidental when the act by which it is caused is lawful per se and is not done with intention of causing it and when its occurrence as a conse- quence of such acts is not so probable that a person of ordinary prudence ought under the circumstances in which it is done, to take reasonable pre- cautions against it." rf p n p p Q I Holmes, The Conimon Law, p. 94, says, "Tne principle of our law is t^at loss from accident nf!ust lie where it falls, and it is not affected vih^n a human being is the innocent agent of misfortune, but relatively to a g\ven human being anything is accident which he could not fairly have been\expected to contemplate as possible (probable) and therefore to svoic In old times, it was enough that the act happened (see Smith on Forts 'r. 357), The law regarded not so much the intent as the damage done. '.The rule was stated thus, he that is damaged ought to be recom- pensed. Holmes Common Law p. 93, says of this rule that it would be more sensible to amend the Constitution so that the whole state should pay the damage than to have one innocent Deft, pay it. If both parties are inno- cent, there is no reason why the hardship should be transferred from one innocent party to another equally Innocent. 3KCTI0N VI. (continued), (b) Leave and License. L.att^r- v. Braddel , A if e, and 'jnclher, c.77, CoMion Fleas, 1S30. Action for assault. Judge withdrew case from jury as regards the Braddels, on the ground of no evidence of non-consent of Plff. Plff . was servant of Ceft. Latter arrived home after an absence and was in- formed that Plff. was in a family way. Plff. denied it. Coctor was summ^oned, and at mistress' orders (without any threats) Plff. submitted though with some protest, to examination by doctor, who decided she was not in a family way. Verdict for Deft., the doctor. Rule obtained calling on Deft, to show cause why verdict should not be set, aside and nev. trial ordered, on ground of wrongful withdrawal of case from the jury by the judge, HELD, that plff. was properly non-suited, No force, or threats of force were used, nor was Plff. put in fear. She cannot plead non-consent, because it was perfectly in her power not to obey, and thougr it may have been against her will, she nevertheless in effect gave her mistress leave to have her examined. Rule discharged. Cf course the general rule is that consent is a defence,- but there are exceptions. In common speech the girl did net consent. She proba- bly yielded in fear cf discharge, also she probably thought the people har a legal right to examine her. But this does not vitiate her actual con- sent. So long as she did not submit because of violence or from reason- able fear cf violence, her consent was valid and excused the assault. Consent procured by force or intimidation would not, be consent at, all. HESARTY V. 3HJNF,, p. 90, ■ Ireland, 1S7S. Action by female Plff. against male Ceft. for assaulting her and in- fecting her with venereal disease. Ii appeared from evidence that illic- 18. ii intercourse had gone on between Plff. and Deft, for two years, during y.'hibh time Flff. contracted the disease from i^feft. Judge charged jury that\fraud of Ceft. in concealing his condition vitiated consent of Plff. Verdist for Plff. In upper court is HELD, /that judge's charge was erro- neous. Dscsit by one of the parties cannot transforn, a long permitted relation into assault on his part. Furttier, in order to maintain action for fraud, duty to disclose must be sho^6. In connection with an iiriinor- al act no such duty can be shown. ''cnft,?; dr. net provide remedies for ccnseauences of in'mcral sets. oaneral.ruls is iivd fraud vitiates consent. vy nci csrer z2- cause it, is consent to an iirmoral acjL. L.R., 3 Q.B. ■110, case of physician deluding a young girl. A duty of disclosure does not arise cut of an agreen;ent to do an il- legal act. Hence a person is not bound to reveal his condition as to disease. 8 Harrington and Payne. H.A.VILTON V. LCWAX, p. 8?, New York, 1558. Action for seduction. Motion by Deft, to be discharged from arrest. Ground on which Flff. claifred to sustain the arrest was for the seduction, alleging that she had been defrauded by false promise of rrarriage on part of Deft. H^^'LO, that a promise to do something in the future is never sufficient to maintain an action of deceit. 'further, as the person se- duced assents, she can never iraintain an action for the seduction. Ac- lion must be brought by a third party who has been deprived of her ser- vices. Judgment for Deft. Plff. could not bring orcacr. oi prc;i.i5i ss :Jeit.. was unaer 21 years; were he over 2], court would consider seduction in aggravation of breach of promise, but will not allow action for seduction. Jhs person entitled to her service, could brinp ?.ctior for loss of her service. (jm^/i -^ITZGFJRALD v. CAVIi\. p. 84, t.'.ass., 1872. Assault. Plff. testified that Deft. seii^eLi bin: vy Lne issticiss and squeezed them severely. Deft, testified that iL was done, without any malice or anger, vchils they were fooling with each other. Judge charged that Deft, would not be liable if there was no malice or intent, and if parties were playing together lawfully by mutual consent, and if the act dons was no other than Deft, might have expected; that whether or not the force used was reasonable is to be determined, not from, results, but. from force used at the tim.e and the nature of the act; that if Deft, intended to do the act and that act was unlawful and unjustifiable and caused bodily harm, then Plff. could recover. Verdict for Plff. Excep- tions. HIiLD, that the rulings were sufficiently favorable to Deft. (143 Mass. 578).' Donsent means outwardly manifested consent, not secret hope to get damiage. V;hen will literal consent not be sufficient? When caused by force or fear of violence'. Fear must be reasonable and of immediate force which it would be foolish to resist. ^raud, illegal- iLy, etc., are considered in these cases. Plff. need nut have consented to the specific thing, as to the injury mV) yi\AA ^yn/iA 19. happenine in a toot ball game; but his consent implied from entet-int?. the game, is a valid defence to ail acts not done maliciously or unfaic-l.v in violation of the rules. .VARJ'tMN V. 3ir wo4> "•^-n. 01 ^eli -defence, short of such means as follow. Question is, when are the gloves procerly padded? Section VI, 'Excusable Trespasses, ^ - u^ ^ Y> \>'1> ^X. ?1. n:ieht probebiy endanger iif-e. FrovckinR words n:ay t^^' a defence in 2 criminal action, but are not in a civi, action. Thex/'n;ay reduce dsn;ages. 2 Sedgwick on lamaees. Sec. 457. But this is ^he best rule, vi2.., they should only reduce pun- itive damages, not compensatory damages. Person is not bcuqa to stana on a passive defence; may make an actu- al use of force. He/cannot take law into his own hands and punish at- tacking party. X'L'^; V. f-'RSKINy', c. 10?, New Hampshire. 1857. Trespass for assault and battery. Deft, pleaded that though he did assault plff., latter used excessive force in defending hiirself. Ques- tion was, could pl'ff's cause of action be lost through subsequent wrongs ccrr.Tiitted by hin^selif. HELD, that it could not. Plff. had right to use a necessary amount of force in self-defence. But for whatever he used in excess of that, he was liable. Bor this he was guilty of assault, but plff's original assault cannot be set off against this. Sach party fray .maintain an action for the injury received, Judgnient for plff. Singular conflict of authority. ^-'lliott v. Brown is exactly oppo- site, ii. was small man, B. large and poweful. &. struck B., B. threw him down twice, pounded hifn unmercifully. B. sued ^;. Oourt held that man using excessive force again?^ ^tt?ck?, thereby loses ri-'nt of action against original wrong doer. Law dees not allow set off in torts. ?.'any courts would however al- low set off of judgment. Bishop, Non-3ontract Law Sec. ?00 thinks in a case of assault upon each other, they both ought Lo be turned out of court Prof. Smith thinks both parties have a cause of action. K'':::K v. H\LSTEAD, p. 105. King's Bench, 1599. Trespass for killing mastiff. "eft. pleaded that it was a savage Gcg, addicted to biting; that, ii carr;e into his yard,- so that he was afrai to go out, of which plff. had notice. Flff. refused,- at, deft's request,, to keep the dog away. Consequently aeft. shot the dog. H^LD, that the plea was good. Judgirient for deft. Had dog been on highway, deft, could not have shot hirr, but dog came into his yard and plff. had notice. A man has the right to go out in his yard. Plff. was reasonably afraid, and justified in shooting the dog. MORRIS V. NDSENf, p. 105, Nisi Prius, 1B36. Trespass for shooting plff's dog. The dog was of a mischievous dis- position and had bitten others. As deft, was passing plff's house, the dog ran out and bit deft's gaiter,- and then ran away, and as he was run- ning deft, shot him. H'^.LD,- that, to justify shooting a dog the animal musL be actually attacking the party at the time. It made no difference that he was ferocious and at large. Verdict for plff. The troub-lfe' in this case variance. The deft, set up one plea and proved another state of affairs. The court held however that deft, must stick to the lan- guage of his plea. On general grounds oerhsps he would have been excusa- Die. fn cc i^.h. dl2-414 the court saia a=:iL. had a rifehi in .Vcrris v. Nugent to do what was reasonably necessary, and it was a question for the jury whether aet't. in the excitement and confusion, had such reasonable acprehension as> to justify his shot. JHLFJIN V. ^foniack 109 Mass. 275. Hi^^LC-, although the dog in that case was dangerous and acouston'.ed to bite those who came near it, yet as it was confined s6 that persons properly on the premises were in no dan- ger frcn: it, and d^ft., had not been attacked by it, he was not Justified in shooting it. bl' beience of Property, Anonymous, King's Bench, 1470. p. 110. Trespass; Defence,' attempt to rob. HFLD, a man may use force upon another to prevent his stealing from him. A man ir.ay use force to protect his property. GRIilfN V. GCCDARD, p. 110, Queen's Bench, 1703-1705. Trespass, assault and battery. Deft, pleaded that a bull broke into his close and as he was driving him cut, plif. came into the close and tried to drive him back, when deft, by force ejected plff. Plff. de- murred, arguing that he should have been asked to leave. H^'iLC,' that in case of forcible trespass, as burglary or breaking down gate,- injured par- ty may oppose force with fore?, but if a man nerely enters one's close, that will not justify an assault without first a request to leave. If a trespasser enters quietly, vou must order him off before force can be used, but otherwise if he enters forcibly, as a burglar,- then vcu may use fore? to eject, and any amount of force that is necessary. OOLLINc V. r..'i;Nr?.ON. p. ill. King's Bench,- 1754. Trespass for overturning a ladder and throwing plff. to t,he ground. Oeft. pleaded that plff. against hs will put up a ladder in deft's gardeii, and in spite of deft's forbidding him, climbed up and started to nail a board to the house; whereupon deft, overturned the ladder, doing plff. as little damage as possible. Demurrer. H!':LD, that such force is not. jus- tifiable in defence of the possession of land. Overturning of the ladcs: could not answer purpose of removing plff. from the garden. Probably there is no right to imperil life and limb to remove a trespasser. TULL^Y V. REED, p. 112, Nisi Prius,- 1S23. /•ction for assault and battery. Heft, pleaded general issue, and special pies of moUiter manus imposuit. W''\y- , that if a person enters another's house forcibly, force fbut no more than is necessary) may be used in turning him out, without a previous request to depart. But if the person enters quietly, force may not be used without a previous re- quest. OOMMONWEALTW v. 0[.ARK, p. 112 Mass. 1840. Assault and battery. Deft, entered one Briggs' close. Refused to go when repeatedly told to do so. Then Briggs used some force, exactly what was not certain. Ocurt instructed jury that Briggs, after request to leave and refusal, had right to use proper force; if jury thought he 2?.. used too much or inappropriate force, then he was jJuilty of first assault, otherwise not. Verdict for plff. Ceft. alleged excep|ions to court';. instructions. H!i'LD,' that the court's instructions v/er® correct. there were two questions for jury to answer: 1st, did Briegsjhave gooQ reason for using force,' 2nd, was the force he used appropriate in kind and sui- table in degree to accon:piish the purpose. Judgment on the verdict. The defence was that Briggs used unjustifiable force, and deft, was justified in returning force. But court said that because force would constitute a battery, it was no reason why it could not be justified. Questions were whether force was justifiable, and whether it was appropri- ate. ''0 repel entrance on land or to defend property, a ntoderate amount of force is allowed. If the entry is peaceable, force can only bs used after request to depart. Owner must try tc push the trespasser off be- fore striking; there is but little definite authority to allow a Hian to use force except in defence of person and property. Clerk & Lindseli or, Torts, p.' 107. ■•^/inHURST V. DAMMK, p. 114, King's Bench, 1604. Trespass for killing a dog. Deft, pleaded that he was warrener ol a certain warren, and used to find the dog killing conies there, where- fore he killed him. Demurrer. HR'LO, that tc save the conies was good cause for killing the dog. The cofr'mon custom in '•mgiand of killing dcgs and cats found in warrens is so well established as to be lawful. You cannot always sue the owner unless he knew of the evil qualities of the aniiral, but if attacked, you may always kill the animal. Plff. had a right lo keep conies. Here the decision is put on the ground of the coimon use of Fngland. Today it would be put on the groun: of reasonable necessity. JA.NSCN V. BSQA'N, p. 115, Nisi Prius, 1307. Trespass for shooting piff's dog. Heft, justified his act. on the ground that the dog was worrying and attempting to kill a fowl of deft's and could not otherwise be prevented from so doing. It appeared that dot had just dropped the fowl from his mouth when the gun was fired. tiELL', that this was not a justification, for in order to excuse the shooting, the dog must have been in the very act of killing the fowl, and not to be prevented by any ether means. Verdict for plff. The case can only be defended on the ground that the court held Lhe deft, to prove his plea very strictly; court was too strict in their re- quirenient. The case is criticized in 53 N.H., 410-411. 53 i-i-H. 411,' Aldrich v. /('right, referring to Janson v. Browr^ says, "The dog might have been lawfully killed when he had the fowl in jfis mouth and the fowl being wholly or partly in his n-cuth, or an inch, a ^ot, a rod,' or 20 rods distant, is all a matter of degree and of tact, for the consideration of the jury, on the question of the danger and the reasona- ble means of protecting the fowl." L^IONARD V. I'^TLKTNS, p. 115, Mew York, 131?. Trespass for shooting oiff's dog.' The dog was in a field of deft. ''A c [•unnine with a fowl in his mouth. Deft, callsd after him, then fired. HELD,- that as the dog was on land of deft, in the act of destroying a fowl, deft, was justified in killing hi.n. The only question in these cases is whether the killing was justified by the necessity of the case. You fray shoot a dog that is attacking yourself or your property, but you cannot sue the owner unless he knew of the dog's vicious quality. You must not shoot the animal if he is retreating. OLARK V. K'^L1H!?R. p. 113. Mass. 1871. Plff. suffered his hens to go at large. Deft, occupied adjoining lot,' and hens got on his land. Deft, requested plff. to shut them up, said he would kill their: if they were not kept off. Plff, refused, where- upon deft, killed then: all. HELD, that this act was not justifiable. Deft, should have contented himself with legal remedy of a suit at law. Destruction of valuable property not necessary to the protection of his rights. Notice of intention makes no difference. Judg.Tient. for plff. The court did not give sufficient attention to the fact that, killing might be justifiable, if there was no other way of keeping them out, and that the necessity for killing hens would be greater than in the case of more valuable animals which could be impounded, or fenced out. LIV&RMOP^' V. BATCHSLDfilR, p. 117, Mass. 1883. Tort for killing plff's dog. Plff's dog was on deft's premises and killed hens. Ttie dog was driven away, soon returned and ran toward hen- house, when deft, having reasonable cause to believe that the dog was go- ing to kill other hens, shot him. HSLD, that there was no justification in that. Deft, must also have had reasonable cause to believe that it was necessary to kill the dog in order to prevent him from killing the hens, in order to justify the shooting. Judgment for plff. There was not reasonable ground for believing that there was no other way of preventing the dog from doing the damage. The decision is correct on these facts, but if the doe made freouent incursions, deft, would be justified in killing him. ALDRICH v. '.RIGHTv P. 115, New Hampshire, 187H. Oeft. in order to recover the penalties prescribed by statute for killing minks. ^eft. pleaded that the animals et the time were pursuing his geese. The minks hqvq swimming after the geese and were from one to three rods away when something frightened them and they crawled out on an island. Just then deft, appeared and shot them. Verdict for plff. sub- ject to deft's exception to ruling that he would not be justified if the geese were not in imminent danger and could have been protected by driv- ing away geese or frightening away minks. HRLD, thst if all things con- sidered,' deft's shot was reasonably necessary to prevent mischief, he was jufetified. He could not be compelled to drive the geese away if he wish- ed to keep them there, and if killing minks was reasonably necessary for his business of geese raising, he was justified. The decision of the court is much longer in the original report than here, and is very valuable for it criticizes many cases of this sort. Charge of the lower judge is well criticized in this decision. Tt r-e- Quire. too .real actual dan.er. .wha.eas t.e ..„., "■-'■'tsa,dappa,3„ aanger 2e. was suffioienl. In cases of shooting, one n:ust regard both the consequences ol" shoot- ing and' of pot shooting,- the expenses of other means of protection as well as the one in question. This case holds that in determining what is ceasonabiy necessary in defence,' considerations of econoaiy must be taken into account. '^ ■ DAVIS V. CAMPBi'lLL, p. 121, Verrr.ont, 1351. \ Trespass for injury to plff's cow by sieans of a dog. Plff's cow,- rVinning at large in the highway, entered deft's enclosure and did damage. Daft, caused cow to be driven away by dog, and dog bit here severely. HBifD,- as facts show that the dog to have been such a one as a man of or- dinary prudence would have used in driving his own cows, and deft, to have used due care in setting him on the cow, he cannot be held liable. It is not necessarily unlawful to set dog on aninial to drive it csway, as this case shows. It is all right v/hen a reasonable farir-er would do the sanie to his own property. DICEY on the Constitution, ^-th ^:i. App. Note ^1 speaking of the right to use force in defence of property says, "The righL is confessedly indef- inite;" and that it !;;usl be a conipromise between two suppositions,, viz... that one niay use unlimited fores in defence of property, and that, one may not use any force in defence of property. Dicey 's remarks on self-defence are the best ever written. It is a coninion belief that a man can use all necessary force in de- fence of property. This is not true, for one may not inflict upon the wrongdoer harm out of proportion to the right to be protected, even if in defence of property or personal liberty. SECTION VI. (continued.) (e) .Recovery of Property. ANNCNY?.^OUS King's Bench, 1506. p. 129. Trespass for assault and battery and beasts taken. Deft, says he possessed a horse and plff. took it cut of his possession. Deft, asked him for it, plff. refused to give it up. Deft, threatened to take it if he would not give it up, then went toward plff. with a staff , which is assault complained of. HDLO,. .justifiable assault. Ahere there is a right to use force to retake personal property. There is a right to use a reasonable amount of force to protect property in your possession as well as your person. There is also a right to use force for intniediate recaption to some extent as to defend your possession, LSeale's Cr. Cases, 85?, C. v. Donahue. A'here attempt to recapture is made after the lapse of time,' there is a conflict of au- thority. Blades v. Higgs settles for England that there is such a right, even to take from the bona fide purchaser from a thief; the ■•-.!. :,:.se p. 133,^ draws the line at bona fides. ''hole law of self-defence is a compromise: Dice.i on the Constitution, /ipp. Note 4, Prof. Smith suggests; Forcible recapture is not allowed ex- cept, either, ^ 1. 'Vhen possessor does not hold under a bona ^de claim of right, (Kirby v. I^oster,) or (?), Ahen there is reasonable Sound , but a not knowing they '/vere taken feloniously or tcrtiously, B cculc enter; A takes his risk. If B's goods are taken tcrtiously and put there without A's consent, B could not enter. Biggins v. Andrews, p. 'Ic?. Ames 240-242, note on right of officer to enter, to serve civil pro- cesses. If A allows B to keep B's goods on A's land, B could enter, but some of the authorities the other way; mortgage case 105 ''Jfass. 403. If B puts his goods on A's land, A may enter B's land, to carry their back. PATRICK V. COLIiRIOK, Exchequer. 1938. Trespass for breaking and entering plff's close and carrying away straw. Plea, that plff. had wrongfully taken the straw from deft's pos- session and put it upon his close, and that deft, made fresh pursuit and Look it away peaceably. Hk;IjD, that entry on another's land to' take back one's goods is justifiable when the goods came there by act of owner of the land. Judgment for deft. 5IGHTJO_[J3LE9H:LTQ_R|iGOV|^_LAND. If the owner of land makes peaceable entry en his land,; he would not be liable for force in repelling force. If he enters fraudently, there is a conflict of authority as to whether he may so use force. Ii is also doubtful as to whether excessive force makes the landlord a trespass- er ab initio. Forcible entry statutes exist in most of our States. ?ee Am. Cecis:- ions 138-140 for an elaborate note on forcible entry. See also 2 Bish- ' op's New Criminal Law 504-512. To violate the statute of forcible entry there must be more than a mere technical trespass - it does not require physical violence to tenant.. 31. There must be physical force used upon the premises, or threatened against the occupant. SKSTION VI (continued). if) Preservation of Life, Llealth, or Property of Others, ^f<,:TCH'':H V. FLtCTCH'^R. p. y63. Queen's Bench, 1559. /declaration for assaulting plff, and giving him into custody lasting a /long time. Plea, that {Jlff. acted Ike a lunatic, that deft, thought he was one, and two physici,ans had certified that he was one, hence deft., be- ing plff s uncle had ca^ised him to be placed in an asylum. Demurrer. HELD, that by common law only a person of unsound mind, dangerous to him- self or others, may be restrained of his liberty by another. But mere fact that person acts like a lunatic is no .justification for locking him up, nor fact that one or two physicians say he is a lunatic. Judgment for plff. If a man is insane and dangerous, any one can imprison him temporarily. ]f one sees his actions and has reasonable cause for believing he is in- sane, he can temporarily restrain him, but he becomes liable if the per- son is confined for a lone time. To confine him, he must prove his in- sanity and follow the statute, if there is one. If there is no statute on the matter, he should have a guardian appointed for him or have him committed by order of the court. In "Ingland, the superintendent of an asylum is justified in receiving a person alleged to be insane, if the certificate that he is insane is signed by two physicians. The certifi- cate excuses the superintendent. The person who brings about the commit- tal is protected by statute, if he does it as above. The certificate can be inquired into on habeas corpus proceedings to get him out, and you may go into the question of his condition when he was put in, and at the time of applicition for release, in such inquiry. Dfi;«Y v.. mUl and OTHERS, p. 155, Nisi Frius, 1327. Trespass for throwing chimneys on roof of plff's house and damaging the same. Defts. were firemen. House next to plff's was on fire. It steed close to a highway and in order that chimney might not fall on the highway tp the great danger of passers-by, deft, had them throw it down, so that it fell on plff's roof. HSLD, that deft's act was justifiable. It was their duty and right to remove the chimneys and orevent their re- maining to endanger lives of passers-by. 3UR0C00 V. G^^^ARY, p. 16S, California, 1S53. Action to recover damages for blowing up plff's house and goods dur- ing a fire. Deft, as fire officer, claimed he had the right to destroy the building in case of real or spparent necessity. H^''LO, that right to destroy property lo prevent spread of fire is based on necessity. Such property becomes a nuisance which it is lawful to abate. "'henever ap- parent necessity can be shown, destruction of property is justifiable. Judgment for deft. The Mayor was justified in blowing up ths property if there w^s ap- parent reasonable necessity to do so in order to save other property. 2 Indiana 35. That is the doctrine of the common law. Apparent reasona- ble necessity must be shown by the deft, in his defence. A man may de- 3??. stroy property to avert harir. when the harm averted is niater-iaily greater than the harm done. Stephens' Digest of the Criminal Law Sec. 32 says the deft, may shw that the evil inflicted by his act ivas not dispropor- tionate to the evil averted. here there is a statute on the subject, the state or city pays as I or an appropriation of the property. In such case a private person must prove absolute necessity, while an official is only bound to use care. He is not liable for an error of jugment. Probably where statutes exist on the subject,, they do exclude the ccrnnion law right of the citizen. If three officers are authorized by statute and only one acts, the city would not be liable; 2 Dillon's Municipal Corporations 4th ^d. Sec. Can I blow up a house when twenty are in danger thoigh I don't own any of them? Yes. 8 Zabriskie (N.'J.) 590. The loss, might be as- sessed on those whose property is saved, as in case of ships, but such as- sessment would be difficult of adjust ment. The constitutional law provides that, private property shall not be taken for public use, without just coffipensation. The courts make a dis- tinction between appropriation f taking) and' destruction. ?, Harvard Law Review 203-2Q5. PRXTOR V. ADAMS and OTHERS, p. 159, Mass., 15173. Trespass for entering plff's close and taking away boat. Close in question was a beach. Defts. went there between high and low water mark and carried away a boat they found lying there, which had been cast up by the sea. HSLD, that if boat was in danger of being lost, defts. had a right to enter and take it for purpose of restoring it to true owner. It is an old rule of ccnucn law that an entry on land to save goods in dan- ger of being lost or destroyed is nottrespass. As a matter of fact, defts.- here delivered boat to owner and claimed reward. They were not justified if boat were thrown high and dry, HOUSE'S CASE.- King's Bench. 160B. Trespass for taking a casket containing n^cney. ihe casket was en a ferry boat, with the owner. A teir:pest arose and passengers would have been drowned if certain goods had not been cast out to lighten the boat. Deft... threw the casket overboard. HI^LC, that he had a right to do sc. To save lives of men, it is lawful to cast property overboard. if fsr- ryn;an overloaded the boat., he is responsible, otherwise it is only Act cf God and nobody is liable. This is a case on niaritiire law. Jettison must begin with the arti- cles least necessary, least valuable and heaviest. Ey the iraritime law the plff. would not lose the entire value of all articles tnrcwn over- board. Those saved would have to contribute tneir proportional part to make up his loss. If a person without property is saved, he does not have to contribute, as he had nothing in peril. Jettison cannot, except in extreti'e necessity begin without the captain's orders. 3 Kent's Com- uentaries Star pages 232 and 233. KIRK V. GRFCORY and 'Hl^^', p. 17^, -xchequ^r. 187?. Plt'f's testator lied in his own nouse of dsiiriuni tremens,' a crovd oi feasters and rioters being around. Deft., a relative, pu.t sotrie jewelry in a box and locl'Sd it up in a cupboard for safe keeping, as she said. Plff . as executor, went to get them and found they were missing. Hence this action,- first court charging conversion, second trespass. Jury found that deft, put the things away bona fide for purpose of preserving theni. Hf'.LD, that deft, must also prove that the interference was reason- ably necessary, in order to justify it. Nominal damages for plff. To justify interference with another's personal property one must \ prove, besides good intentions, apparent reasonable necessity Lo interfere 'tp save the property from dan-age or destruction. PUTNAM v. PAYNR, p. 175, New York, 1S16. Deft, brought action in court below against plff. for killing his dog. Deft, knew of ferocious acts of dog. The dog had in addition been bitten a few days before by a mad dog. There was general alarm in the village on account of mad dogs, and the authorities had passed a law authorizing the killing of any dog found at large. HELD, that regardless of this law of the village, common law justifies plff. in killing the dog. It -was a di^ngsrous animal, which owner kept in a negligent manner, and which might well be killed as a nuisance. Further, as the dog had been bitten by a mad dog, public safety demanded that he be killed. SECTION VI. (continued). (h) Abatement of Nuisances. JAMES v. HAYiVARD, p. 183, King's Bencn. (Hecorted in Oroke, Charles, 134.) Trespass for breaking close and pulling down a gate. Deft, justi- fied on ground that, the gate was across the highway and was a nuisance. Plff. answered that the gate was lc keep out cattle and the public bould not open it without trouble when wishing to pass. HELD, that the erect- ing of a gate across the highway, though anyone may open it, is a nuisance and as such may be removed by any person. Judgm-ent for deft. This case would be an authority for allowing uninterested people to abate a public nuisance. i^or judge decided that every person could re- move. Today only those whose rights are invaded can abate a nuisance. If the party against, whom the action is brought created the nuisance, notice is not necessary. But if a third party created it, notice is nec- essary. In practice, to be safe, notice should always be given. The ob j8ct of notice is that the owner oiay abate the nuisance himself and save h 1 ? Droper ty . 70 L . T . n . s . 275 . JOM^^^ V. WILLIAMS, p. 185, Pxchequer, 1848. Trespass ouare olausum f regit. Plea that deft, lived near the close in question, and that plff, injuriously permittee large quantities of filth to remain on the close,- from which noxious odors came to deft's house; that deft, entered to abate the nuisance. HE^LD, that plea is ;bad, because it, does net stat,e how the nuisance came there. If plff. put it there, or, by neglecting some duty, suffered 11 to remain, the trespass of deft, without notice was excusable. But If the nuisance v/35 placed 34. I there by another person, then notice to plff. was necessary; in order to justify, left, should have proved that it was one of the tirst two cases. n: Ordinarily the person who creates a nuisance is not allowed to com- plain of the trespass of one who abates, without notice. If plff. cre- ates the nuisance, deft, need not give notice,- this is the general rule. On the other hand, plf/. is entitled to nd>tice if he is the alienee only of the original creator cf the nuisance. Immediate danger to life will justify omission of notice. 70 L.T.n. 3. 275; plff. and deft, owned aajoining l^nd. Cn plff's land was a tree which overhung deft's land. Oould deft, cut off branches < without giving notice? Court said no. {70 L.T.n.s.712, decision over- ruled very recently.) BROWN V. PERKINS and .VIFE, p. 187, Mass., 1858. Action breaking and entering plff's shop and destroying property. Deft, justifies on ground that shop was used for sale of spiritcus li- quors and that the keeping of them for sale was a nuisance by statute, which he had a right to abate. Hi'l'D, that spirituous liquors are not of themselves a ccmmon nuisance,- but by statute the act of keeping them for sale is a nuisance,- and must be abated in the manner prescribed by statute '• and not by forcible destructio n by a private citizen. An individual may abate a common nuisance when it obstructs his individual rights. Keeping a place for sale cf liquors does not obstruct his rights suffi- ciently to authorize him to destroy the liquor. He must seek the remedy provided by statute. This is a case cf great importance. Look it up in bock and read with great care the very able argument cf plff's counsel. A statute creating a right often states the way in which it can be used or secured, and then that way is exclusive of all others. A "nui- sance cBn only be abated by those persons who are affected by it. A stio* utory nuisance can only be abated in the way prescribed by statute, but if the statute makes no provision. It is to be abated according to the principles of the common law. If a man has gone on the lend of another and abated a nuisance, he may still bring suit. Abatement is not regarded as a punishment, but as a protection for the injured party. Instead cf civil suit, there may be a public indictment. Cooley 2nd ".d. p. 48 and 52. ERILL v. FmilH, p. 191, New York. 1840. Trespass for killing a dog. Flea, that the dog came day and night on the premises of deft, and snarled and howled to the great disturbance of his family; that plff. knew of this and wilfully allowed it to go on; that the only way for deft, to abate the nuisance was to kill the dog. Demurrer. H5LD, that the matter set forth in plea constituted a private nuisance to deft., which he was justified in using all reasonable means to rciiove. No reasonable means could remiove it short of killing the doe. Hence this was justifiable. Suppose a man went on another's land and barked like a dog, would the o'/.ner of land have a right to shoot him? No. 53 N.H. 406. The 35. ir.an would be a nuisance, but, a nuisi:nce can be abated only to the extent that it does injury, anything beyond that renders the abater a trespasser. Innocent third persons must not be in.iured. Olerk & Lindsell 113; Pol- lock Snd ■'d. 363-364. There are two kinds of nuisinces, private and public. A private nuisance niay be abated by any one that is legally damaged by it; that is, by any one who could bring an action against the maintainer ol the nui- sance; a public nuisance can be abated by any one whose right of conimon use is affected by the nuisance. A right of a;:tion against the maintain- er of the public nuisance is not necessary to give a person affected by it a right to abate it. If one has one occasion to use the comnion right, he T2V abate a public nuisance affecting said use. Vere apprehension of injury is not enough to justify an abating. A man cannot tear down a building in process of construction, but can cut off eaves overhanging where rain will do damage, even before the rain falls. A man has a right to go on another's lana to aoate a nuisance if he has a right of action against the niaintainer of it. One cannot apply fores to the person to abate a nuisance: Oooley 2nd td. p. 49; Glerk 5 Lindsell p. 149; because it 'rt'ould be a breach of the peace. If a person n^.aintaining a nuisance ordered the abater to retire when he caxe on his land, he would have to do so. if attacked hoviever , the abater could probably defend himself. 3errett on Nuisances p. 4 gives a list of acts which are neither public nor private nuisances,- acts tending to degrade public n:orals, as indecent exposure, etc. SPJCTION VI. (continued). (i) ^Miscellaneous 'I'xcuses.) 31LBF.RT v. STON'Fi, p. 194. King's Bench, 1641. TRESPASS TOR BRiiAKlNG HOUSS"; AND 3L0S!!,. Deft., pleaded that twelve armed men by threats forced hirr to go with them and enter the house and close. Demurrer. H^JLC, that olea is bad. One cannot justify a tres- pass UDon another for fear, Con:pare this case with Smith v. Stone, p. 42. Defence good there because deft, was carried on plff's land by irresistible force. Here he had a choice between being hurt himself and hurting another, and he chose to hurt anotner. He had a choice and exercised it, in the other case he had no choice. It is hard to reconcile this case with Piggott on torts 3S: "Neces- sity for preservation of life is a good plea in trespass." Probably the reason for the distinction between such a case snd Gilbert v. Stone is that in the former a person acts purely instinctively and without the ex- ercise of his reason. But even then he ought to be liable according Lo the authorities. :ierk & Lindsell S, Oooley VP.l . TAYLOR V. '^^HITeHKAD,. p. 194, King's Bench, 1781. Trespass for breaking and entering close. Flea that the close ad- joining a lane of plff's over which deft, had right of way by prescription and that lane was overflowed so th-t deft, nece'ssarily entered the close. H.L ,. ■. .a. IS no justiricaticn. Grant of a precise, specific way H^t'norinciud- oranl of way over land anywhere, nor does it iir.piy prorr.- 1" ot^rantor to keep way passable. It is net like the case of highways \here the general good conies into consideration ^ Distinction between Taylor v. Whitehead and; Ca.poell v- -o oi coWse lies in fact that in one case we have a private .ay, in the oth.r a public way. U UeTostruction were so great that it would take a long ti.e to remove it. taking it down, would not be necessary. One could .0 on anotn ar's I'^nd in that case. _ This case is also reported 1 Gray's Oases on Property ^.rA . OAWFBFLL v. Race, p. 19S, Mass. 1.B51. •Trespassing for breaking and entering close. Oeft. pleaded necebhi- tv resulting fron i.passable state of highways. Judge ruled that this -constituted no defence. Verdict for clff/ Exceptions, HKI.D. t. at rn^lish rule holds in this country, that a person rr.ay trespass on ad.ioin- ing land when highway is impassable. Public convenience and necessity are paraiP.ount, to private right. The right can be exercised only m case cf necessity. Exceptions sustained. GL^'VKR v. HYND"^ and OTH'^;BS,- Coir.rr.on Bench,- 1674. •Trespass assault and battery. A curate was performing funeral rites^over a body; plff. fr.aliciously disturbed hin-. Ceft. put pltf. out.. Argued for plff. that deft, had no official right to act as he did. HKLH • that when persons are engaged in the service of God any one that disturbs them is a nuisince. and rtiay be removed by any person- there by the same rule that allows a man to abate a nuisance. Judgment for deft. A. statute providing ri'sans of punishing an act does not fake away com-- mon law means of punishing. IRRL4ND v. ELLICT'T. p. ?01. Iowa, 1S58. Assault and battery. Judge charged that in civil esses abusive words are a defence to an action of assault. Verdict for deft. Appeal. HELD, that provoking language does not constitute a defence in a civil action any more than in a crif.inal action. i^arthest law goes is to allow great, provocation of language to be shown in irdtigation of damages. Judgment reversed. Harsh words etc. would not ii^itigate the damages in cases of actual physical pain. It probably would in cases of damages for humiliation, etc. It is not clear on authority. H'--=: V. e*> . 0. 202, Miss. 1883. Action for ssst^uiL and battery.' Verdict for plff. Appeal, oob:it^i~ ing for error the fact that court below instructed jury that "drunkeness was an element aggravating said assault." H^.iLD, that these words are wrong in criminal actions. In civil actions the point has not been ad- judicated except with regard to libel, and there the authorities differ. . But in this case the charge was undoubtedly correct. ■' drunken man ad- vanced on a woman, brandishing a pistol and threatening to s.hoot. His 37. arunkenness was certainly an aggravation oi" the injury. Judgment ai- t'irnied. decision here probably corr^t. though generally drunkeness is no aggravation. 1l is no defence Ordinarily in an action of tort. It ii(ay be where special intent is reQu^ired. Bishop, Mon-^ontract Lav; Pec. 511; M-arkby's Kle. of Law, Hec. 758;/ Figgott on Torts pp. "16-P17. H'KCf'ICN Vl. (continued). • (.1) Arrest without "'?.rrent, p. '-OB. Ancnynicus, p. ?06. In many cases, private individuals and officers can arrest for a fe- lony past or present, buL never for a past ndsdeirieanor, and in the case of present misdemeanor, only for breach of tjie peace. This is the coinir.on law rule. In every state a statute exists ex- tending the list of persons who ii;ay be arrested by an officer without a warrant. If a private person ^rresLs a .i:.::i -jnd. inakeo - .xiJuiA^, n-- .luou prove that a felony was cOiTiritted, and that he reasonably believed the n:an ivas guilty. Officer only has to prove ^=- ''■-^ orobabls cause to believe the felony to have oeen co-T,n;itted . '^^CTION VI. (continued), (k) Justification by officer under judicial process. :;HASE v. INSALLS, p. 2?1, Mass., 1837. fort against deft, as deputy sheriff for alleged illegal arrest of plff. Plff. contends that the warrant was defective, as the ii:agislrate who made it was attorney of party in whose favor it was n;ade. HELC, that an officer is not liable for defect in his precept, provided such defect be not disclosed by the precept itself, nor known to the officer. Legal processes ir.ust os issued by a magistrate having legal author- ity, must conforn, to a certain fc-, Tust not have en it^ f'-^c? ^iiy evidence thst Ti.^j-istrate had no power. INITION 3F PROC '. /■ Process is any written authority emanating fro:r a body having ap- parent legal power to issue it ;;nd purporting to authorize a ninisterial officer to do some act which if dene v/ithcut legal authority, would be a tort. PKOPLF, V. y^'ARRKN, p. 223, New Vork. 1342. Deft, was charged in lower court with assault ana cattery on a con- stable. The consti.ble was trying to arrest him. warrant was regular and sufficient upon its face. Deft, offered evidence to prove that the officer knew the inspectors who issued the warrant had no jurisdiction. The evidence was excluded. Lixceptions. HJiiLD, that as the warrant was regular on its face, the officer was authorized to iisake the arrest, re- gardless of whether he knew that the inspector had no jurisdiction. If the officer knew the signature was forged, he could not protect himself. This case .Takes regularity on the face of the process the test of whether the officer is protected. S^S 3coley, ?nd 5d. 546-7 Here the paper was signed by the proper person. ON V. I'T, r. , New York. I'resDass de bonis asportatis. Both partiel^ vie/ve constables, and boll) claiiried possession Lhroufih writs of attachment. tflt'f. made the first levy, and for subsequent taldne by deft, this action was brought. The attachriients were regular on theij'r face, but as a matter of fact were issued by authorities not having jurisdiction. HiiiLG, that while such an attachment protects the officer against being sued, it does not give him 3 title sufficient to naaintain actions against third persons. 4 Hun. 723 decides the other way,^ that priority of possession is enough to enable t.he plff . to maintain an action. CAMPBELL 7. SHERMAN, p. 2?5, Wisconsin. 1874. Action against deft, as sheriff for unlaivful seizure of plff's steann boat. H^LD,: that the court which issued the warrant v.'as clearly exceed^ ing its jurisdiction and encroaching upon U.S.; courts. -ere subject "^ rratter of suit is within the jurisdiction of the cour^, yet jurisdiction > in the particular case is wanting, officer is certainly to be protected if he executes a process fair upon its face. But where the process itself shows that the court has exceeded its jurisciction, the officer is not to > be protected. Ignorance of the lav; wiJl not excuse him. This is certainly hard on the officer, it would require h-ini to look out for unconstitutional statutes. ''his process here is not fair on its face, for it is not issued frofi: a court having jurisdiction. This case is supported by weight of authority, though soiiie cases are against it. 54 N.)^.-528. LASHU3 V. MAiihiL^i, p. cci, ^.'-dine, 18Sr. Action of trespass against deft, as depuiy snsriii to recover goods '' attached by hini. Verdict for deft. !v*otion to set aside verdict, be- cause in the suit in which the property in question v/as attached, judgaient had been given in favor of owner. HELD, that the question of whether an officer is a trespasser in n;aking an attachirent does net depend upon the result of the suit in which the sttachirent is niade. He levies en the goods for such judgment as plff. may recover against deft, and failure of plff's suit does not n,ake sheriff a trespasser ab initio. An important case. A writ is s conniand from the state to an offi- cer. Lawyers get them froir. the courts, in blank, signed by the clerk and I sealed. Lawyer fills one out and gives it to the sheriff. A sheriff has to give bonds of course for any oniission of duty. There are tft'o kinds of processes,' mesne and final. A v/rit of at- tachment or arrest is niesne process; a writ of execution is final process. An officer is not resconsible for obeying the lav:,- he is bound to do that.. A sheriff seizes a debtor's goods at his peril unless he is ordered to take a certain specific chattel. There is a case of a sheriff seizing goods of a woir^an who was supposed to have married a certain man. The goods were seized as the goods of the man. This would have been legal if the marriage was legal. The marriage was illegil and the woman sued the sheriff for seizing her goods,' alleging the illegality of the .-.arriage. 89. :•- recovered. 9 "onn. 1^0 at 146-3 STArf. V. OOv^'N'^h and FULLER, p. 230, Vermont. 1S36. In^iotnient for cesistins an officer in the execution of his office. ueii\. offered to show that the officer, under an attachinent against a thira\ party, was atteiTipting to seize deft.'s floods. '-^.videncs excluded. HyLO, that this evidence was properly rejected. /n cfficsr, under in- structii^ns to seize propertv is not bound to decide all cases of doubtful title atvhis own hazard. /.henever the question of property is so far doubtful Vn3t creditor and officer may be supposed to act in good faith in making the \attachirent, the owner of the property cannot justify resis- tance, but must yield the possession and resort to his remedy by action. Resistance to officer is not allowable. The reason is that it is a breach of the peace. One is sure to be able to recover from the sheriff en his bond. The sheriff would be in a bad position, if a man could re- sist him. He has a hard enough tifre as it is on account of his liabilit.v for mistake on either side. OOMMON^SALTH v, KENNARD and CTHSRS, p. 2cl, f^ ass.. 1829. Question whether if an officer have an execution against one person and he attempts by mistake to take the goods of another, can that person use force to defend his property. .^.ourt said that a iiian may use force to defend his person or property against others,' not officers, and that a precept against A, is void against 3, and an officer armed with a void precept is no officer as to that party,- and a person is justified in re- sisting the attachment. Property may be seized by the sheriff under a variety of writs. ihey are of two classes, (1) Those specifying the article to be seized, as in replevin, sequestration in chancery, or admiralty process. Here the sheriff seizing these goods has the full protection of the law. (2) '''.'here the officer is directed tc levy on enough to satisfy the piff's demand. Here the sheriff must find if it is the property of deft., and whether 11 is seizable under the writ, and must find enough tc satisfy plff.,- if deft, has enough. here if the sheriff errs in judgment,- the court can afford him no protection as against the injured parties. OOMMONWE.ALTt] v. CBOTT and OTtifcRS, p. 234.' Mass., 3865. Indictment for a riot for resisting officer. An officer attempted to arrest one of the defts. on a warrant which gave no name or description by which latter could be identified. He resisted forcibly. HELD, that such a warrant is certainly void. The officer had no right to aake the arrest, and was a trespasser. Deft.- had a right to resist, using no more force than was necessary. Any third party may lawfully interfere' to prevent an arrest under a void warrant. If name is given in warrant and officer arrests another, he is strict ly liable. If mere description is given and officer arrests one who an- swers to it but is not the party, it has not been decided whether officer is liable. POOLER V. Rli:?;D, p. 235.;. Meine. 1882. Trespass for an alleged illegal arrest. Deft, justifies arrest as constable with legal mittimus therefor. 40. After elecLicn as constable he had accepted the office of justice of the i,.,3>. , Lhat this (i;ust be taken as a surrender of office of con- stable. He wa.^' still an officer de facto however, and while acting as such, his act.s ,'AOuld be valid as between third parties. But when he is s Darty hiu.self and justifies his acts as such officer, he nsust show a lo- fcial title to the office. Point, discussed thoroughly in 54 M.H. 13 and 38 Conn. t48. An officer de facto is one who is not really an officer but, who has the reputatyion of being one and is in the habit, of acting as one under the color of authority. sheriff is justified in acting on the process of a de facto officer. 3ALLJARD V. LAXTON. p. 236. Queen's Bench, 1852,<'' A wa'rrant had been issued to the constable and all her Majesty's officers of a certain county. One of the latter, whojiad had the war- rant in his possession, but who did not have it at. thefli.iie, arrested oalliard. Latter resisted and was indicted for assauft. in lower court. Question of illegality of arrest, HF^LD, that, the warrant, would have had to be produced if required, or else arrest, would be illegal anyway. That being' so, officer was bound to have it with hitr- to be produced if required and not having, could not .^ake a legal arrest. Can lay hands on the party to be arrested, if you are a known offi- cer, before you show your warrant. '''arrant n:ust be in officer's posses- sion at the time of arrest; he niust have a writ good on the face of it, must follow the directions of the process. He must show hiirself an of- ficer de jure, in a suit against himself. When an officer has a good process, he can attach the goods of the proper person in a pending suit. The result of the suit n^akes no differ- ence. The owner cannot resist attachnient of his goods, but rray the ar- rest of his person. The best, discussion of justification under judicial process is Ccoley on Torts, 2nd fid. about 539, 1^ or 15 pages, especially 546. .in officer cannot justify under a process, if issued withoutthe jur- isdiction, and that is apparent on its face, and it is no defence, if the process is in truth illegal, unless it is due to facts beyond his official knowledge. '/:here t.he officer is himself a party to a suit, he must show a right de jure. -vhere others dispute over hi= vi^r^i as an officer, it is suf- ficient to show hiii'self such de facto. hen the ownership of property is doubtful and creditor acts in good faith, the owner is not justified in using force to prevent attachroent. Chapter 11, Disseisin and Conversion, (a) Nonfeasance, Apparently there are eight essential allegations in the did form of declaration in trover; (1) Plff's property; (•-) Piff's casually losing it; fS) Deft's getting possession by finding; (4) Deft's knowledge that it was plff's property; (5) Ceft's intention to defraud plff. of 41. nis property; (6) llii's aeiiiana for it; (7) .bit's rjiusal; (8) Deft's converting and disposing of it to his own use. Later on several of these became as we shall se unnecessary. At con;ir,oa law there were two forms of action to recover a specific chattel, namely, replevin and detinue. There were three foriris of action to recover damages, viz: trespass, case and trover. Case is the same as trespass on the case. In 1285 trespass was the only form of action. To if ford a remedy, one had to find a writ which exactly described the thing cOinplained of. Often justice failed because no writ could be had. The statute of /-estminster 11 was passed. Chapter ?4 of which provided that if no itrit could be found, the clerks in chancery should make up a writ and the action should be called case. Belles on important !^;nglifeh Statutes. Assumpsit and trover were originally actions on the case. Distinction between trespass and case. The distinction was forireriy very ifi:portant. It is not so impor- tant now. If deft's act was a direct application of force, and diimage followed immediately in point of time the doing of the act, then trespass might, be brought instead of case, and if in addition, deft's act was wil- ful or intentional, then trespass must, be brought instead of case. If deft's act was not. a direct appliC'.:tion of force, or if damage did not follow iiimediately in point of time, then the remedy must be case rather than trespass. Now as to the middle ground: if force was applied not in- tentionally but by negligence, and damage followed immediately, the better opinion was that plff. could bring either trespass or case. Baldwin v. Favor, S N.H. 4S5, sets forth the distinction both briefly and clearly. Walker's Am. Law 593-8 puts the matter somewhat differently from Prof. Smith. TROV'''R was used originally only In cases of finding, and was then an ac- tion en the case. Its use has been extended by a fiction to cases other tlian those of actual finding. A'e shall now consider the meaning of conversion in actions of trover. CONVERSION has different meanings in common law and equity. To decide whether trover lies in any given case, you had better decide first whether the act complained of is a tort, and secondly, if it is, whether it is a conversion. TROV^JR is sometimes the only remiedy for sn alleged legal wrong. Sometimes it is concurrent with other re-nedies, as trespass, replevin, etc. And sometimes it cannot be brought at all. The question as Lo whether there has been a conversion is still important even in code states In cases where there is doubt between conversion and o breach of contract, it is desirable to sue for conversion wherever that is possible, as the contract may be illegal. ! ^UL3PAVE v. C3C'iN, p. o6 7, Queen's Bench. 1591. Action of trover for butter which deft, kept so negligently Luib it became of little value. Cemurrer. HSLD, that if finder uses the thing found, it is conversion and he is answerable in trover, but, for negli- gent keeping, he is not responsible in trover. Precise point was whether a man was liable in trover for not taking 42. care of things found. Court said no, as he was not bound to take care of things found, but this rule is doubted now by some a\ithorities. But de- cision is correct, as there was no conversion, n Mere nonfeasance is not conversion. '-^OSS v./ JOHNSON, p. 267, Kini:>'s Bench, 177?. "rover for goods belonging to plff. which came into possession of iciL. . a wharfinger, directed to plff. They were lost or stolen. Ond^;C'r'ION 11, (continued.) (b) Destruction, or Change in Nature or Cuaiity of a Chattel. RICHARDSON v. ATKINSON. Nisi Prius, 17?8. They held that the drawing out part of the vessel, and filling it up with water, was a conversion of all the liouor, and the jury gave damages as to the whole. If any essjntial change is made in the nature or quality of the chattel, it is a conversion. 8 Fenn. State 294 allowed trover where a tree was cut down on another's land and cut into sniall wood and then left on the land. S!i:CTION 11 (continued.) (c) Asportation. BASSEf v. MAYMARD,. p. 273, Queen's Bench, 1301. If a stranger takes my chattels out of my possession, I can bring trespass or trover against him at my election. A wrongful taking under a claim of right is a conversion, but a mere u 43. wronj^iiui L:-jr\ing is not necessarily a conversion. iior is a wrongful Lak- inc; necessary for a conversion. The wrong may be entirely subseouent to the securing of possession by deft. JOHNSON V. FARR, p. 275. New Hampshire. 1S30. I'rover for last-blocks. Deft, as sheriff had attached them on a writ, and the question in this case was whether he had exercised such do- minion over theni as to amount to a conversion, for which this action would lie. HELD, that as this was a valid attachment, it is to be pre- suVied that deft, took possession of the goods (which is an essential ele- ;!ien\ of a valid attachment.) Hence plff. must have been deprived of his dominion over them, and that is enough to constitute wrongful conversion. Vhe court said that there was a conversion, by reason of the attach- ment b,y the sheriff, as it prevented the owner from exercising a clear do- minion; as sheriff claimed exclusive custody, the owner could not have clear possession, to do as he wished. It was a deprivation of plff., if not a disposition to the use of deft. To assume control of goods and prevent the owner from using them amounts to a conversion. BUSWh V. J^ILLRR. p. 275/ Nisi Prius, 1718. Flff. and deft, were porters who had adjacent cui;boards in a hut on the wharf, where they used to put goods, if the ship were not ready, Plff. placed some goods of A so that deft, could not get to his cupboard without removing them. He did remove them about a yard toward the door, and went away without returning them. They were lost. Plff. brought trover against deft. H^.LD, that there was no conversion. Teft. had a right to remove the goods so as to get to his cupboard. As to his not returning them,' perhaps trespass might be brought, but clearly there was no conversion. The case illustrates the principle that mere nonfeasance does not amount to a conversion. .A serious question might, arise as to whether h. was bound to put the goods back in the place whence he took them, FOR^nnK v. OCLLIN'^. p._2 77. Nisi Prius, 1513. Trespass for value of a block of stone. Stone had been placed by plff. on land adjoining houses of his. Ceft. coming into posses- sion of the land, refused to let plff. take stone away, and afterwards re- moved it himself to a distance. Argued' for deft,, that he had a right to remove it. BXLj, that he was net justified in removing the stone to a distance, although he might have removed it to an adjacent place. He was guilty of a conversion. it would net have been a conversion to have put the stone by the read side, as that would merely amount to excluding plff. from deff's land. If he carried it away a great distance, it would be an exercise of domin- ion over the stone. FOULD^S V. .aLLOUGHBY. y. <77 , Rxchequsr, 12-11. Trover for two horses. Deft, was manager of a ferry. Flff. em- barked on the ferry boat with the' two horses, for the carriage of which he had paid. He behaved improperly, and when deft, came on board he told 44. him hs would not take the horses, and plt'f . trust take then shore. This p]ff. recused tp do. So deft, led them ashore and turned theni loose on the highway. I'hey turned up at a hotel a little later. Plff. detiianded them and was told he could have them by piying for their keep, and that they v.'ould be sold for their keep. They were sold. Plff. brought this sctiori. Defence was that, horses were put ashore to induce plff. to fol- low. , Judge chyriied tjiat putting theni ashore was a conversion and jury founa dair.8.ge for plff. Judgrrent was set aside, as court said iTere aspor- tation did not airicunt to a conversion, when there was no intention of mak- ing any further use of the chattel. If t!;s object of putting the horses on shore was to induce plff. to follow, there was no exercise of any do- minion over the horses inconsistent with or adverse to the plff's. To constitute a conversion there nust be some use or some intention lo use the goods, or the result must be a loss or destruction of the goods. The simple act of rerr.oval was not conversion. Judgment set aside on the ground of a misdirection. The essential point of the case is, is the charge to the jury cor- rect, that taking the horses and putting them on the shore was a conver- sion. Court held that it was not correct, as mere fact of putting them on shore was not a conversion. The ferryman made no claim to exercise any dominion over the horses. Interference with the owner's possession was only momentary. He undertook only to abridge plff's right of control at one place and in one direction. He set up no right of property in himself, nor did he attempt lo acquire any. He did not dispute plff's general ownership. "fl m.omentary interference with owner's control, while not ais- puting his general i-^-ni of ownership, nor changing the nature cr quality cf the chattel,' does not amount to a conversion." .. ^., The destruction of a chattel is a conversion. The judge might have charged that putting the horses ashore was a conversion, if the jury found (1), if horses were lost or destroyed, (2), if that followed as a natural result of deft's act; (3), if a reasona ble man would have foreseen such a result; (4), and if deft, did foresee such 3 result or ought to have foreseen it. The facts of the case make out a tort but not & conversion. INTfilRF'iRENOE -^ITH RI3HT' OF PROPERTY is a conversion, though it be but slight". To make interference with right of user a conversion, the right must be substantially abridged. The point of the case is that a momentary interference wiLh the ow- ner's control or user, while not disputing his general right, of owner- ship, nor setting up a claim to any special property in deft., nor chang- ing the nature or quality of the chattel, does not amount to a conversion. SECTION 11, (continued.) (g) V'iscellaneous Acts of Dominion. K"'Y^O^TH V. HILL and WIFE.' p. 342. King's Bench, 1820. I'rover against husband and wife for converting a bond and two notes to their own use. Flea, not guilty. Verdict for plff. !/cLion in ar- rest of judgment, on ground that a married wo.i:an cannot acquire property. 'lence cannoL be suilLy oi conversion. Hri,LD, thai it' conversion couid take place only by an acquisition of oroperty, this would be a stronj^ ob- jection. But this is not so, as coriyersion by destruction, for instance, shows. Essence of conversion is not acquiring of property by deft., but deprivation of property to piff. /ind that being so, after verdict, we are bound to iTP.lv that it v.'es sucf? a conversion as ;vife nnsht be ouiltv It wa,s true then, but is net' now, that a irarried woman'cannot acquire property m her own right. The court did not study th^ declaration as carefully on the inQtion In arrest of judgment as they would have on a demurrer. Such a declara- tion held bad on demurrer in 15 Gray,' 535. The court said "in trover the foundation of the action is not the acquisition of property by the defts., but. the deprivation of property to the plffs." Here the niatter came up on motion in arrest of judgment, where court, i: there is any conceivable state of facts v.hich could support the ver- dict, will hold that those facts were proved. '/oirentsry interference ending in destruction of the thing aipounts to a conversion. Vere asportation is not conversion unless it deprives owner of ac- tual or constructive possession. Mere asportation -is any act by deft, inconsistent with owner's ac- tual or constructive possession. SECTION 11, (continued.) (d^ defendant a Purchaser, Pledgee,- or Psilee of '■ ''rongful Trans- feror. GALVIN v. BACON, p. ?S5. Vaine, 18:^3. Psplevin iOi- a horse." Plff . had lent it to one Staples, who had sold i', wrongfully, and after passing thdrugh two or three hands it fi- nally .reached deft, ss a bona fide purchaser. Plif. made no deniand on deft, before bringing this action. Hence deft, contended that the action could not be niaintained. B^LO, that if a party is rightfully in posses- sion of property belonging to another, the latter must deTand it before bringing an action; but if the taking is tortious, no deniand is necessary, 'hoever takes a thing without assent of owner or his agent, takes it, in the eyes of the law, tortiously; this holds a bona fide purchaser frcn: one vvho h'ad no, right to sell, and against him therefore an action can be brought without derr.an:? . This case, though :in action of replevin, would be an unquestioned au- thority in actions of trover. "Good faith" alone is never a source of title, though it, may often turn the scale in doubtful cases. Bacon obtained no title by the successive sales, as none of the sellers had a title ivhich he could pass. His possession was tortious because the ven- dor's possession y;as tortious, and the act of purchase was a wrongful act inconsistent with the owner's title. Case is stronger still against the others, as they had not cnlv r.ii?---!-f^c;.-="i, hiit. h'^-i transferred the property to another. -30 1 Cushing 536; B Hill 348; 3 Harv. Laiv Rev. ?8 34, An article 46. uy Proi' . Ames on the old law, en this general subject, Ceft. '.vould have been liable In trover without demand. Trover could have oeen brought against all or any of the four, but a judgnient and sat- isfaction against one would have precluded action against the others. yc:0!.. [ort for conversion of goods stolen from piff. deposited in deit's nouse with his knowledge,- afterwards taken away by sime persons who car- ried them there. HELD, that defL. did not convert the goods tc his c-vn use, but was a mere depository. It. does not a ipear that he would not have restored them to plff. on demand. Allowing goods to be brought into one's house and taken out again is a miere nonfeasance. Deft, did not affirmative act, ncr was it shewn that ne intended tc do anyth'^g to prevent the owner from recovering his proper- '-17. ty. A use of soods with possessor's permission and doing nothing to ac- quli's or repudiate owner's title ^is not conversion. "^"^: V. DENNIS.- p. 294, nf: Jersey. 1833. / riii. left his plow on a tfvai with owner's consent, until he should cbnie and take it away. Some UyOnths later the farm passed into the pos- $ession of one Hibler, plow st/^U bein^ there. /\ little later deft, bor- rowed the plow of Hibler, supposing hiir. to be the owner, and after using it for a few days, returnea it. A year later plff. informed deft, that it was his plow,, demanded pa/ for it and the return of it. Deft, not coirplyins, plff. brought trover. HSULC, that conductcf deft, was not a conversion of the plow as he received it for temporary use only, and with- out any claim of risht, and he exercised no doirdnion over it inconsistent '.vith owner's risht. His act n:ay have been trespass, but was not conver- sion. Deft, took property and used it, and claimed it nerely as a borrower, not that- he had any idea of ever acquiring a title to the property, or de- nying the owner's right. A'hen he returnee it, he returned it not to the owner, but to the party from whom he got it. >'c it differs froti; the case of Youl v, Harbottle, p. 804 of this volume of Oases, where the true ow- ner bailed the goods and they were given up to a third party. But here in returning the goods to the bailor, deft, left the plow in the same sit- uation as tit was when he obtained it. It would have been a conversion had the true owner revesled himself' and forbade its return to the bailor. See the re.narks in note p. ?86. The case is near the line, but the decision is probably correct. SaCTION 11, (continued), (e) Misfeasance by Bailee. PP^HAM V. ZOmi. p. ?f?, Mass., 1S75. Tcrt for negligence in the use of a horse and carriage hired by deft, of plff. with a count for the conversion of the same. Judge charged that if deft, hired the horse to drive to [.ynnfield only, and in violation of that went beyond Lynnfield, it was a conversion and deft, was liable for any damage, from whatever cause it arose. If his act was not in violation of the contract, then he is liable only for negligence. H'^LO, that this charge was correct. Under the old forn-s of action, you had lo uriu;=. trover for conver- sion and case for negligence. Tn Mass. the action is all one action for tort, but you have to set out g form of action and prove what Is alleged. ■phe court here assumes that the driving beyond the stipulated place is a conversion. '^he weight of authority is that way. The damages are the value at /the tu:e cf conversion diminished by the value at the time of returning it to the owner. ;''.he horse is entirely at driver's risk from time of conversion until tiiie cf return. Accepting pay for the extra drive, with knowledge of the circumstance is a waiver of the co version. '^his case shows the difference between damages for negligence and conversion. In latter cas^ if n^vnor^ „ *• v.db., it o-^ner refuses to take bac^ rss, ^^ 48. hs can recover full value, according to weisht of authority. The/ decision has been affirii'.ed in An^land. 25 N.H. 72 contains good reasoning in support of tills doctrine. 1 3ray's Cases 327-8 contair an argument against it. 60 fi/w.Rep.S21. rejects the doctrine of the case. It is conmented upon in 8 Harp. Law Rev. ,;280. ■/epriving the owner of t'he use is a better expression than convert- ing ip one's ovm use in deflhin^ the word conversion. ■ A conversion rpay arise frofn an intentional breach of contract; Per- ]]m if. Coney. ' SPCON'iR v. MANCHg T(i;R. p. 299, ■ Mass. 1882. Heft, had hired ; horse from plff. to drive from Worcester to Clin- ton. On the way back he unintentionally took wrong road, and when ne discovered his mistake he tooJ< what he considered the best way back to Worcester. Question was, was this conversion. HELD, that it was not a conversion, ss deft's set was not such as of itself to iirply an assertion of title or rieht of dominion over the horse, nor was there any evidence of intention on this part to assert such title or right. A'hether an act like this amounts to conversion depends on circuirstances of the case and intention of party. Valuable case. There is a difference between this case and Perhani v, Coney, p.- 29B. In F. v. C. deft, was aware that for the time being he was violating the contract. In S. v. V. there was no conscious violation of contract. /I?NT'^0RTH V. McDU^'RI^J, p. ^Oc, Mew Hampshire, 135? . Oeft. had hired a mare of plff. Judge charged thiu ii deiL. wil- fully and intentioally drove the .tare at such a rate of speed as to en- danger her life, and he knew the danger it would be conversion; but it would not be, if the driving was irsrely negligent, and deft, did not knov of the danger. , that these' instructions were correct. Driving be- yond the appointed place is conversion, and such wilful and iiniitoderate driving as in this case is certainly as uiarked an assumption of ownership and as substantial an invasion of bailor's right of property, as that is. Further, wilful destruction by bailee is conversion, and the bailee here may be^Jield to have wilfuily destroyed the rnare. The case is to be defended, if at all, on the ground of conscious vi- olation of contract. It is not enough to drive fast in ignorance of the danger to the horse. If the doctrine of Perhair- v. Coney is correct,, this case will stand. If not, it is doubtful. The c?^:?. i^ -n-logcus to cas- es on wilful destruction. If pay is accepted on the return of the horse, the ov/ner knowing that /he has been driven further than the contract called for, such acceptance is a waiver of the right of action. In case the contract was so broken, Smith thinks that the owner may refuse to receive the horse when he is brought back and recover for his conversion. 64 N.H. 98. (Rvens v. Wason) In 64 N.H. 98, a fnan hired a horse to drive from one place to another and directly back. On the way back he stopped, put the horse in a stable and had him fed. "^he stsble took fire and the horse was burned. It was 49. HELD, not a conversion. But this decision seems contra to the princi- ples upon which Perharri v. Coney and Wentowrth v. VcDuffie were decided. Ordinarily a bailment is a personal trusL, and to assign it is a violation of the trust and hence a conversion. 34 N.H.29. In some bailments this is not so; there it is no violation for the bailee to as- sign his interest. YOUL V. H.Af?BOTTt.R, Nisi Prius, 1791, p.80^ . Trover for goods delivered to deft, s comnion carrier. Another per- son claimed the goods, and deft, under a mistake, delivered them to him. HiiiLD, that when a carrier loses goods by accident, trover will not lie against him, but, when he delivers them to a third person, though under a mistake, ■ trover will lie. If goods are lost thrcu;^ri ncnieasance oi csrriir, action oi trover cannot be sustained. Compare this case v/ith Frcme v.- Dennis, p. ?9^- . There deft, before notice, restored goods to party from whom he got them, in good faith. In Y.v.H, deft, gave chatties to party to whom he was not entrusted to give them, See note, p. -306. The difference between accident and misdelivery is that the former is nonfeasance and the latter an act of an active agent. This case differs from Spoonsr v. Manchester, as it comes nearer to a sale and there is more probability of loss of the property to the owner. Misfeasance by a bailee is a conversion; breach of contract if in- tentional or unnecessary may amount to such a misfeasance. -FCTION^ II, (continued.) (f) Defendant acting -as Agent or Intermediary. PA^KgR and ANOTH'^p v. CtC^IN, p. 307. King's Bench, 17-?S. A bankrufl '.vant ai-^ay leaving' some plate with his wife. She deliv- ered it to a servant to raise money on it, Servant went vyith deft, to a banker's, there deft, took the plate, pawned it in his own name and took the money back to bankrupt's wife. Trover was brought. Jury found ver- dict for ijleft.,' as he acted only as a friend. But in the upper court it was H^LD, that a new trial should be granted on the ground of its being an actual conversion by deft., notwithstanding he did not apply the money to his own use. Master cannot .justify the set of his servant by ordering him to do what he would not be justified in doing himself. Plffs. were probably the assignees of the bankrupts. The defence '.•.'3s that he acted as a friend, pawning in his own name. This was a de- privation of property to -,-• the owner. Clerk ^ Lindsell p. 167 say there are four sorts of conversion: wrongful taking; wrongful parting /.'ith; wrongful retaining and wrongful destruction. There can be no conversion where there has been no volunta- ry act, 30 goods lost or destroyed by accident are not converted. In order to show conversion by wrongful retaining,- you must show de- 3!8nd and refusal and deft, must have had the goods under his control at 50. Lh8 linic. cut refusal to deliver is only evidence of a conversion and net of itself conversion. H OLLTNS V. FPyJlgR'. p. ?11. House of Lords, 1875. Trover"! Appeal from Exchequer Chamber. Fowler & Co. were nierchant Hoilins 5' Co. brokers. Fowler ^ Co. instructed their brokers, V.essrs. Rew to sell for them 13 bales of cotton. They did so, one Bayley pur- chasing them,, claiming tp be acting as agent for one Seddon, payment to be within 10 days. 5 days later Bayley offered then: to Hoilins, deft, in original action, who, having an order from Messrs. Nicholls, purchased then; and later ordered them delivered to the latter, which was done. Fowler 5: Co. not, having received payment within the stipulated 10 days, ap plied to Seddon and learned that Bayley 's act was unauthorized. Demand was made on HoUihs i Co. and on their failure to comply, this action was brought. HELD, that whether or not innocent purchaser is to be regarded as guilty of conversion depends on whether he would be excused for what he did if done by authority of person in possession, when that person was finder or bailee. If so, then bona fide ignorance of another's litis would excuse hin-. If not, in the majority of cases he would not be ex- cused. Applying this rule we find that the deft, was guilty of conver- sion. THIS IS ONF OF THE IMPORTANT- CASFS ON CONVfiJRJ^ION. It was not a sale to Seddon as Bayley had no authority and it was not a sale to Bayley because the plff. never intended to deal with him personally. 1 H. ^ C. 803, and 1S5 Vass. 283. Had Bayley simply pretended to be worth property and the sale been tc him, trover would not be n'aintainable here; but in this case there was no passage of title from Fowler. Hol-lins held the cotton for a half hour before he sold it. Hoilins gave a delivery order for it and it was car- ried by Hoilins' men in carts to the station. The cotton had been iiiade into yarn at the time of the action. Hoilins claimed that they acted on- ly as brokers and agents for their principal. The jury found this tc be true. The court erred In refusing to set aside the verdict as against the evidence. But the Lords reversed the decision on this around which was unusual for them to do in such a case. Blackburn discusses the case on the assumption that Hoilins, though only agent, did acts assuming dominion over the goods. Sentence near •iiiddle of p. Pl*^ is inportant point of the case. The passage near the middle of p.' 316 is worth committing to memory. i'he test there suggested will solve a great many difficulties, though net all. Question is,, whether defts. should be held liable for conversion in this case, if they acted only as agents. (In fact, probably,- they were principals, quoad hoc.) Cefts. negotiated the sale. Case is very close to the line. If a broker simply acts as broker,, does not touch the prop- erty, but simply negotiates the sale, he is not liable for conversion. Here defts. knew that they were doing what purported to be a transfer of title, and were helping tc do something which would change its form. See 14B Mass. 267, as to liability for conversion of carrier moving goods. res Clerk ^ Lindsell on Torts, p. 181, If the carrieir knows his act is the conipletion of a sale,' by transfer of possession, he /can beheld for conversion, otherwise not. In this case/ the Judges of ff.ngland were called upon, under the ol'l practice, to advibe the House of Lords, who were not bound to follow the Judges' opinion. n ONgOLIDATED GOMFANLv^ C URTIS, p. 328.-0ueen's Bench, 189. Prover brought by grantees under a bill of sale of furniture against auctioneers who sold the sanse by order of grantor in ignorance of the bilJ of sale. Auctioneer had sold the goods by rsQusst, and delivered them to purchasers. H^;LD, that mere sale without a transfer of possession would be no conversion. Rut where auctioneer having goods in his possession, delivers then: wrongfully, thoug innocently, to another, he certainly does an act inconsistent with owner's don:inion over and property in the goods, and is guilty of conversion. Auctioneers are liable for conversion if goods are sent to their rooms by one having no right to then:, and they sell them and immediately turn the aioney over to the party from whons they are received. The reason is the auctioneer assists in passing title. Is also liable if he goes to a man's house, as by the course of business the goods are then transferred Lo the auctioneer and can only be delivered on his receipt, so he has pos- session of the goods with a lien on them. ir'o he assists in the transfer of the property. The weight of authority is overwhelmingly in favor of holding the auctioneer. 158 I/ass. 357. Agents are not liable if they merely take part in the negotiation,- but are if they have anything to do with possession and delivery. 153 iMss. 857; 59 N. -A'. Rep, ^19. Clerk ^v Lindseil 133. • Holmes Com. Law p. 100. The deft, here was uierely an agent,- out he did deliver the goods through his se-rvant. Note testimony of witness on p. n?'8. The histor- ical reason for the rule above as to auctioneers being liable for the con- version of goods sold on the order of one having no right is the desire ci the con-mon law to protect property. As trade and the transfer of proper- ty increase?, this rule is likely to yield to one in favor of facility and safety of such transfer. Frof. .^mith would oppose -a sHutory change of this rule,- because if it were understood that good fith and ignorance of true state of title were defence, sham defences of that sort would not be held liable. ?ee Holnies on Common Law pp. 97 to 100. ?PCTICN II fcontinued.) (s) Miscellaneous Acts of Dominion. TsArLCR V. HORRALL, p . 345, Indiana. 1S37. Trover by Hcrrall against Traylor, Capehart and Caih. Plea, not J:;uilty. Fitf. had put his corn into a crib which he had hired on anoth- er man's land. "efts, and others being there, Capehart offered the corn at cublic sale, Traylor bid it off at the auction. Plff. was there and forbade anyone to sell or remiove the corn. HELD,- that there was no con- version, a'^ th-^r^ is no evidence that defts. ever had possession of the 52. coi-n. For anything that appears, pll'f . niav always have continued in un- disturbed possession and exercised all the rights of owner. It is common to say that a purchse and sale are conversions, and that claiiT. of title must be accoinpanied by an act involving a manual in- terference with the goods. A mere assertion of title verbal iy is not 2 conversion. Purchase alone will net constitue conversion; taking pos- session is necessary. Words alone will not constitufe conversion, though they may be of importance to characterize the act. If parties by a sale like this, cast a doubt upon the title of the true owner so he could only sell the goods for half their value, he has a remedy in "slander of title," by which he can recover his actual dama- ges, but cannot recover for full value for conversion. Taking a mortgage deed on another's property is not a conversion un- less deed is recorded. NP.LSON v. /•'HF;TyOF?,.p. 349, So. Clarolina, 1SA5. • ction on the case to recover the value of a slave. I'hree counts, one in trover. A slave belonging to plff. ran avvay. Presented himself as a free irulatto to deft., who was then travelling, and asked him to take him as- servant. Heft, took him with him a while and then he disap- peared.- Verdict for plff. Motion for non-suit, or new trial, HELD, . that if deft's act amounted to an assertion cf rifht as owner, he was guilty of conversion. Otherwise not. To determine this it must be known whether or nothe knew the negro to be a slave, whether or not he knew there was a question of property. To determine this there must be a new trial. Here mistake was whether chattel was property or not. Natural pre- sumption is that a horse, etc. is property, but natural presumption is that a man is not property. Ceft. was net liable unless the man was e sl3ve. '-o a new trial was ordered in order to determine that point. MI3H0LS V. NF.v^OM, No, Carolina. T81S, Trover for wood on deft's land. -Judgment had been obtained against deft, and an execution was levied on the wood, which was then sold to plff. as highest bidder. Plff. proposed to deft, that he be allowed to enter and cart off the wood. ^eft. replied, if plff. cane on his land he would sue him. The wood remained where it was and this action was brought. HPLD, that after deft's prohibition plff, could not enter law- fully and peacsably He was under no obligation to enter and incur a lawsuit. Deft's act of refusal was clear evidence of conversion. If plff.- had a right to enter to get the wood, the court thonp'ht. that there was no conversion unless there was physicil force used to prevent it, but the court is wrong. Plff. was entitled to take the de£t. at his word. Plff. had a right to enter, but was entitled to take deft's refusal and to bring nis action. Pome of the court said,: plff. had no right to enter on land, (but this is wrong) and consequently his refusalto give it up was a conversion. Best view is that assuming the owner of wood has right to enter, the :r,6re refusal to permit entry is not a conversion, unless the jury 0ould IC 53. and did t'ina intent of aett. tc exercise domin.i.on over goods as well as land. If Plff. :i^.u a right to enter air-i i.aii. raaiisLta uiii; iron: uiiory, it viouti be conversion if be intended to resist taking the goods, and not cereiv tc defend his l^nd. 33 Pao. Rep. 77; h n.^'.^ex>. 60?. P^^IGLAMD V. OO'riq/; p. 357. Exchequer . im. T'rpver for furniiure. Flff. was hoide,r cf a bill cf sale over hcusehoi^d furniture of a tenant of one of deff's houses. Plff. had right to\take the fi^-niture in case of default in payn;ent by tenant. Tenant haVing defaulted , plff. put a man in Dcssession, and later sent two men witll vans to remove the furniture. It, was after sunset. Deft, was there.', stated that rent was due, that he was going to destrain the next day, that he would not let furniture go. And he stationed a police- man outside to prevent rerroval. Plff. went away, leaving a man in pos- session. HKriD, to be no conversion, as deft, did no act cf interference, but only threatened. '•I'ven if he had prevented removal forcibly, it would have been no conversion, for he was not in possession and did not convert them to his own use. He would merely have prevented plff. from using them in a particular way. In order to have been guilty of conver- sion, he must have altogether deprived plff. from use of goods. It was a race of two creditors. It seems as if plff. had a right to take aeii. ai his wora,aiia assum Li;at deft, would have used force, so that it was not necessary plff. should actually resort to force. It does not follow that if you can not bring trover, you cannot bring any other action. Distress had to be made by daylight. See 3 Black. Comm. pp. 6 to 14. '■'hethsr refusal tc permit property to be moved will amount to con- version must depend upon the uses to which property can be put; sometimes said: "There must be a substantial deprivation of ail beneficial use," in order to be conversion. In this case it would seem as if deft, virtually had possession, although jury found that he had not manual cossession. See Bristol, v. Burt, p. 354. Stationing policeman was a decidea ici, oi iULcri-'erence wiLn plff's property. An important question is whether a man's right of user is sub- stantially taken away. Deft's acts werenaturally calculated to and did result in depriving the plff. of his property. deft, had practical control cf the goods, if you look at the substance and not at the iiere form of the action. HIORT v. 60TT, p. SSI, Exchequer. 1374. frover for barley. Plffs. were commission merchants. They em- ployed one Grimmett as their broker. In consequence of a telegram from him they shipped the barley in question tc the. railway station in Birming- ham, and sent tc deft, an invoice for the barley and a delivery order which made barley deliverable tc order of consignor or consignee. Barley had in fact never been ordered by deft. Grim.mett called soon after, and said it was a mistake, asked deft, to indorse the order so that he (G) could get the bi;rley. Deft, did so; 3. took the order, got the bi.rley and absconded. Jury found that deft, acted in good faith, with s viev; < 54. Lo correct an error and set barley back to plf.'t'. HFJLO, that there was a conversion by deft, as he did an unauthorized act which deprived another of his property permanently or for an indefinite tins. Tf deft, had ione nothinsi at all,' plff . would have gotten the goods. He assumed a jontrol over disposition of goods, and plff. will not set them. Hence Lhere was conversion. The barley was deliver:-ibie to the craer oi either the consignor or Lho oonsignee, so it was not necessary to endorse the order at all. The goods were in the hands of the railroad. Grimniett had ordered it sent %Q the deft. ^eft. attempted to restore the goods through Grimmett, but GViffiirett was not plff's agent and was not adopted as such for receiving back the goods. Ceft. here acted under an honest mistake with intent to benefit the true owner, but if deft, had done nothing at all, the barley v.'ould not have been lost to the plff. Oeft. was net in actual posses- sion, but was in constructive possession which is sufficient possession to maintain trover. StCTICN II f continued.) (h) Deoiand and Refusal. BALDWIN V. ':OLi^L,_B. 865, Nisi Frius. 1734. I rover. A crirpenter had been working tor hire in the queen's yard. -Refused to go any rrore,- whereupon the surveyor of the work would not let hiti! have his tools. Oemand and refusal were proved. HELD, that this was actual conversion, and not fnerely evidence of it. For, detain- ing another's goods from him without cause Is assuming to one's self the right to dispose of their. The decision is correct, but the reason given is wrong. Mere de- mand and refusal will not give a judgnent for plff.,- is net, of itself, a conversion, but is r;erely evidence of it. I^'olt,"'. V , was wrong in his reason. ;R";m v. On^iN, p. 372,. Nisi Frius, 1S11. Trover for timber which deft, found on his prendses. Plff's ser- vant had put it there. Plff., the owner, densanded it of deft. Latter said he would yive it up if plff. would bring any one to prove that it was his property, otherwise not. HSLD, that this is a qualified refusal and no evidence of conversion. The qualification niust be reasonable. Not every qualif ict:tion pre- vents a refusal from being evidence of conversion. ALfi^XANDiR V. 30UTHi.Y,' p. 373, King's Bench. 18J1. Trover for goods which deft., a servant for an insurance company, had in his custody in a warehouss, and which had been sived from a fire, and placed in the warehouse, by the compsny's servants, Flff. deiranded his goods, deft, said he could not deliver their, without an order from the conioany. '^' L'?, that as the refusal was not absolute but was qualified ir; g reasonable and justifiable way, there was not sufficient evidence of conversion. ''ery unsettled question -whether a servant can be said in action of trover to be in possession of his rraster's good:?, so as to be liable in 55. trover. At present day, if servant did what might be called an act of misfeasance while he had the actual custody of another's goods, the fact that he vae acting under his master would not exempt him. See as to possessiipn i;: cases of larceny by servant, 2 Bisb. ^Jev.■ Crirr. Law, sec. S24 et seq. As to civil liability in trover, Clerk favors. It is supported by more au- thority than the others. There is a conflict of aut,hority as to amount of damages recoverable in trover when deprivation of goods entails a great loss beyond their value. Probably no more damages could be recovered in trover; case or trespass should be brought. Plff . might sometimes be allowed to show . that the chattel was especially valuable under the circumstances. \ An accepted offer to return goods does not bar action of trover. It mitigates dairiages. Plff. has often been allowed to make his election be- ifhen special diniages for loss of service and interest, in addition of course to deterioration in value. ?3 S.W.Rep. 484, very late case. \Does an unaccepted offer to return affect damages? If so, the property must certainly be in as good condition as it was when taken. Bishofi's Non-Con-Law Sec. 401, very important statement. 72 .'/aine 37?, opinion of ablest .judge in this part of the country on results of unac- cepted tender. See note on p. '?78. Declaration oin Trover. Only two allegations are now essential in tiiost jurisdictions. 1, plff's property, 2, deprivation by wrongful act of deft. Oeft.'s knowl- edge as to plff's title, deff's intention to defraud plff., and deft's re- fusal to deliver on demand, all or any of them, may often be material in order to prove the fact of conversion, but they are not necessary ele- ments of the definition of conversion, nor necessary allegations of a dec- laration in trover. See the 188? fule of court in Wilson, Judicature Acts 5th F'd., p. 673. Although the declaration sets forth plff's property, nevertheless ?il] that is necessary is right to possession. 1 Gray's Oases on Prop., 356-9, note. Example of reciaration in Tr'0\ier. "Plff.- has suffered dair.age by the deft, •.■■.rcnkiuiiy a^privink th: plif, cf tv:o casks of oil" (then declaration goes on requiring manner ci deprivation) "by refusing to give them up on demand," or "throwing them overboard out of a boat," specifying where the boat was. It, amounts to this, the word "converted" is dropped and word "deprived" is used. As to Definition. "Individualize the term (to be defined) in as few words as possible." '.upp.493, reported also in SO Hun. 550 and noticed in Harv. Law Fev. January 1394 and December 1894,- p. ?25, the deft, requested tlve court to charge that if his act was involuntary or such as would instinctively result from a sudden and irresistible impulse in the presence' of a great danger, he was not liablf, . e court refused and charged that the liability depended on whether or not the act was vol-j untary. '-his charge -.vas later held bad: the court said the charge should^ have been the one requested by deft., for the act might be voluntary and still not be the result of an intention based on reasoning. An instinc- tive act may be voluntary, though not the intended result of reasoning. In the squib case three judges thought it an impulsive and instinc- tive act on the part of the intermediaries. Blackstone thought that th. intermediaries had time to reflect and accordingly he would have held SI. each interfrediery liable. See Pollock on '^orts ?nd •^d. p. 158 and 540, Tn '■'' ^'.'-'. 'iro, one boy twisted another about and sent him whirling? 'ird who pushed hini violently aside, injuring him. The court held thst the third boy acted instinctively dnd did not break the causal connection. In K l/iniiciiCli; 51 a Lcc;ii. iviib li- xi. 1::::= 11 uo.;/ it:iL uiiLit;:; anu fat! i.iVc;y, some rf.ed tried to stop it and in so doin?, frightened the team so that it in.1urs5 pill". Ttie court held that the acts of the interirediate agents tiers r.fessonable and not culpnble and so did net break causation from the original ?/rongdoer. /Follock Snd ?A. 158, 540 inclines to take Blackstone's view of the facts in the squib case. Jones V. BOY'' , . 1^, 1-1«, 1 ^tarkie. Action on the case against a coach proprietor for so negligently con- ducting coacti that plff. had to juii'p off, in conse*iuence of which his leg was broken. It appeared, that a rein had broken, one of the horses be- came ungovernable, driver turned to the side ci the road, wheel hit some- thing, and plff. Jumpea off to avoid injury. ''llenborough, to the jury: two questions must be answered, 1st, was proprietor negligent, ?nd, was i, a result of that negligence that plff . was 'placed in such a position, that the prudent and proper thing for him to do was to juirp. Verdict for plff^ Oausal connection is not necessarily broken by the non-culpable ac- tion of the plff. hiipself, when that action is induced by and naturally resulting from deft's tortious act. Plff 's act was an act of reasonable care and prudence; see 25 Winn;, ?8?;, ?S5. '■COLfi,Y V. SCOVILL, p. 15, P Geo. IV. ? Manning ^^ Ryland, 105. Oase for negligence for throwing a bag of wool from a warehouse and injuring plff. It appeared that servants of deft, called out to warn passers-by; that plff. looked up, saw wool coming, and ran directly into it. Judge charged that if plff. lost his presence of mind by act of deft, and in the confusion ran into danger, verdict must be for plf: . ' i-dict for plff. Rul.- nisi. '\ that charge was correct. Plff's Joss of self-Dossessicn was occasioned by wrongful act of deft, and therefore deft, is liable for all that followed. "e must assume that deft, was in fault. Probably the fault was so p.i ;lii that, no instruction as to it was necessery. See Beven on Negli- gence, 137. Here also i-f plff. hadn't done anything, he wouldn't have been hurt. The test set up in a case like this is, did plff. Icse his nresence of mind so as lo be unable to reason. ^ case stands for the point that the causal connection is not bro- ken by Lhe non culpable action of plff. himself, when plf's action nai- urally results from deft's tortious acL. Kor instance, as in this case, plff. acting instinctively by reason of fright produced by deft.'s lort. Itiere is a very full discussion of this in 37 Ain.Rep.3S6, note. Oi-lNNV v. NY.i^.Osntral B.'-\ , . r, -- . ^-^^. '.ction of tort for iiniages lo ■.vooi delivGred lo deft, as common car- 82. c-i=;r uj wc jc:iii = ,. LL'oni Niagara Fails to 'Uuau.y. T?}e goods were negli- i=nLly delayed on the way for several days. Soon after being placed in ieft's warehouse in /Albany they were injured by a sudden flood, deft, not being negligent. HrLD, that as a wrongdoer, is responsible only for the proximate and not for the remote consequences of his act,ions, deft, is clearly not liable. The flood was the proximate cause of the loss, deft's negligence was reinote and had ceased to operate before the loss occurred. 'he last human wrongdoer test would make deft, liable in this case, so if we take that rule, we must admit certain exceptions. ish. Mon-3on. Law Sec. ^'i makes the point that the act of the last iiLUi.ta wrongdoer may have spent its force, > Judge here had a faint foreshadowing of the test of reasonable an- ticipation of probable consequences. Srent many authorities sustain this.. Contra, cA N.Y. 500. See Oooley on Torts, 2nd Ed. p. 79, note 2. See as to Warehousemen, 1 Gray, 277-2P1; Tenn. 699. almost contra to two last cases is 85 N.F..Rep. (Ind.) 70 . irst two warehouse cases and ref- erence to Coolsy say: Ceft's negligence was in a certain sense concurrent, in point of tin . .id v. Garrett, c Bing. 716, leading I'nglish case. Noted on p. ?:6 Sniith Oases on Torts. This last "^nglish case is referred to in L.R,7 O.B.Div.cll. "Loss happened while tjie wrongful ac- tion was in force, and was attributable to the wrongful act." ■3ILW/SN V. NOY?S, p. ]8. N.H.,lS7c. Action on the case for negligence in leaving bars down ...,.,. ^..y Flff's cattle escaped and were destroyed by bears. Oourt. charged that if the loss would not have happened but for deft's negligence, he was liable. H!'Lv, that this instruction does not set up the right criterion. !i:ven when deft's negligence is a cause, it is a question of fact for the jury as to whether or not it is too reniote. And the true rule is, that deft, is liable if the damage is the natural consequence of his negligence, and such as might reasonably be anticipated. But, he is net liable if the damage would not have happened without the intervention of some new cause, the operation of which could net have been reasonably anticipated. New trial. The "beir case". The lower court instructed th... v... "but. for" rule must be the test. The Supreme Oourt disagreed with this and set uc the probable consequence rule. that is the difference between Mill's aefinition of cause and the "but for" rule? According to frill's rule ail antecedents are equally the cause; ycu have no right to pick out any one as the cause. i.o for" rule starts sith prscticaily the same premises, and then says you can pick out any single antecedent and consider it the cause. The ob- jections to this rule are that remote antecedents would be considered causes; tjiat. conditions would be taken for causes, and that deft,, is heia liable if there is a tortious act of his in the chain of causation no mat- ter how far back it is in the chain. The "but for" rule is rejected by the great weight of authority. 63, -YAN v.- N-.Y. Centrel B.R. , p. 27. New York,- 18c6. ■ tt. ihroukh ntfrilifeent nianagen^ent, of one of its locomotives,' set lire to one of its wood sheds. Flff's house i- 130 ft,, away ,. was burned. , Lhat deft's netliRence is too reaiote, That a building on which :^Pcil•kb fall should burn is to be expected, but that the fire should spreac ■ ;nds on concurrence of accidenLal circuDiStances, ■ "" is not a necessa- cr usual result. Judgment, for deft. . No urial by jury. The judge non suited the plii. . ne courts sup- oorte?d the non suit on the around that wind,' etc. are accidental circun- stances. which the deft, is not responsible for. The Romney v. Marsh cast would have been decided differently if this rule had been adopted there. Che true view is the deft.. ;i\ust notice the wind and other circumstances and that he is liable for the probable consequences of his negligence. 3re3t weight 6i auohority is agi-inst this case. Appparent.ly it aecides that difference in ownership breaks causal connection. See 6" Hun ISl , which is decided more correctly and is really against Ryan case. Dsnyin? 'Ryan's case, ws can ssy that diversity in ownership of buildings burnei or of the l::rJs traversed by firs, or irere distance of locslity, or the perioi of tine tetif-'een the burning of the bui.dine'', do not n3cessaril\ TTeaning in all cases) relieve the deft. frcn. liability. See also ^1 Hu. ^S5. Fetter, J. 50 Hun 193 carries out -yan's case to reductio ad absui iuir. -se' as to right of insurance con:pany over against negligent party, May on Insurance, ?n • ' . -ecs. ''fS to ^'5". In 49 N.Y. "'' ' '"1 the case is answered but noL overrulec. -iCY^ V. J^' :v;., ;.. -i, ..ichigan, 1S74. Action to recover damages for certain luildin^c c^j ic.-.c-.. l,.; :ir.vc i.ct-n burned by fire negligently con'municated front deft's saw miii. buildings destooved were a hotel, and two buildings 5 and 5 feet from IL. Verdict for plff . Exceptions to judge's charge that deft, was liable for value of last two buildings if their loss occurred without any other cause than simply tne fire burning the first. H^^LC, that charge was correct. If the other buildings were destroyed by the burning of the first, no ivatter how far away they were, without any negli^F.ence of t/ie owner, and without the fault of aoine third party as -rox. c-ause, then he through whose negli- gence firsL building was burned i-.'-is equally liable for the other. ■Judge here "■^■'-ies out rule in -'■^'s case to its logical and absura conclusion. 'The argument of Ryan v. Ijit i«;.Y. Central R.R. that to hold the deft. liable might be ruinous to deft, was answered by saying that it was tetter to ruin one wrongdoer, than thst innocent parties should have to bear & part of the loss. Lawrence,,], in ^ent v. Railway .Co. , . ch, Iliinois, 1S7] . Tiawrence J. considering Ryan v. N.Y.Gent.R,S.' Co., which holds that wrjcTs thsr.-. is a fire corriinunicac-ed by a locomotive to house of 4 and thence ; to house of B, the latter cannot recover. HSLD, that this distinction rests on no maintainable ground. The only just rule is, tc,,4eter(riine whether the loss was i natural conseouence of the nsglagenp^-, which any I 51 . leasonaoie parson xight havs antioioated, thyl is whether the negligenc: ivas a prcxiir.ate cause. Juage hers says only question here is, shall innccsnl parson suffsi oc hix whose negligence wajs proximate cause. ■' ^UKiift & ST. PAUL 'K.a. V. KiiLLGSG, p. c^d, U.^., 18V;i. icLion to recover value of saw iiiill and luinber destroyed by fire neg- ligently dommunicated ly'oip. a steairiboat cI dsft's to a i^rain elevator of [.heirs, and thence to the lu/iiber and mill from 300 to 500 feet distant. '/'erdicL for plff. bweptions to .judge's charge leaving question of prox- imate cause Lo jury,' Aeft. claiming hs ought to have held thelnjury too re- 101-. _t,D,' that; op'urt was right in submitting to jury question whether ourning of jiff's pi^'operty was a result naturally and reasonably to be ex- pected from brunintj' of elevator under the circumstances, and whether it ;;3s result of deft.' s negligence without the intervention of other causes not reasonably to /have been expected. The instructions to the .jury weri uctt-a on ihc. prcoable consequence rule-. This rule; has the g.reat^st support anions *'^- -■■t>c -iT 1^:^ and text writer'^. :.. :;, 6t al, V. - , : , ,. , ^enn. IP?"?. Aciion on Lhe case to recover value of property alleged to have been iestroyed by negligence of deft. A sipall landslide had obstructed deft'^ track, i4 few minutes later a train came along, was derailed, oil cars curst, oil took fire, was carried down the river and burnt clff's proper- ty. Judge cnarged that deft's negligence was not proximate cause. "^r- lor. HRLC, judge's charge was right. f^acts being found, he had a right t,v apply the law to them, and in this case the law certainly is as he Gfiarged. Deft's negligence was not proxiniate cause of Iccs, because ) at- ter was noi sucn a consequsnc? — ■:'i-*-t t: -v- '--r^n foreseen as likely to follow. -ourt ruled against plff. as a matter of law, ^'ithout leaving it to jury. The judge uses "natural" and "probable" as synonymous. Tt is Neil lo guard against it, as som.e courts use them in different meanings. In Kuhn v, Jewett, 32 N.J.3quity zi7 , decided by the Vice Chancellor without a jury, and opposite result was reached. See note p. ^?, I'd. 1' SRTf^NILAND V, ::H/iFLIN, p. ^', lixchequer, 1850. Follock,G.B. : "I doubt whether a person is responsible for all th- consequences of his negligence. T consider the true rule to be that a person is expected to anticipate and guard against all reasonable conse- quences but not against those which no reasonable man would expect to oc- cur." 3ofl:pare Pollock's statement with the next case. ^}/lTH V. LONDON & S.W.By.Cc, p. 43', Cojr.ir:on Pleas, 1870. Action for negligence causint. burning of plff 's ccttaee. Peft. Ry. ran near plff's cottage, grass, ■; stub.ble field, and a road lying between. A fortnight before the accident cleft's servants had cut the grass. This they left in heaps by the railroad. It was very --dry, and one day just after two train? ^^^ passed the f^rass Isd'^' »>•- loun^ to be on fire. A 6r slronti wind caused Lhe fire lo coiiin^unicate to stubble field, thence to coi Laj^e. H'i.Li), that defts. arc liable, notwithstanding that the consequence was not one which a reasonable man might have foreseen. ''li;:: rule n:ay be useful in determining nsfiligsnce, ^ut when negligence is cnoe proved, party guilty of it oecomes liable Tor its natural consequences whether he could have foreseen them or not. Very important case. I'he court distinctly rejects probable consequences rule in legal cause. It says it is important to delsrmins negligence, but after neg- ligence is settled, deft, is liable for the natural conse9u3nces of his act, whetlier the result could have been foreseen or net. Also compare with Shrgott v. Vayor of New York on p. 91 of Smith's Jases. 'li^ v. CHICAGO, ic. Ry. Co., p. 45, A'isconsin, 1991. ^peal. Action to recover dairages for burning of plff's property cy lire caus>3d by deft's negligence. Men fighting the fire thought PUf's property was safe, so fought the fire elsewhere, but a strong wind sprung, up, and the property was burned. H'';LO, that as there was art inter- vening cause-, not necessarily following from the first negligent act, without which plff's property probably would not have been burned, deft, is not liaoie. Plff's l.^.nd was Z 1/2 i.iles away and the property destrcysd was a cranoerry patci . .e firs was caused by deft's negligence five days be- fore it extende-: g plff's cranberry pate' . n extraordirsry v.'ind came up after the firs was started. "' can 03 oefended and distinguish- ed from the Romney v. f^arsh cabi, iti biitiL, in the Romney case the wind was blowing at the time and here it was not, but came up later. Also here it was an extraordinary wind, a wlsirlwind. the .lucse thought that on the probable consequence theory this result is not one to have be-sn -an- ticipated. I, ^a. "i'y. Co.. . -., Missouri, 19V'. -parks from a loconictive oi" deft, set fire to the prairie at 2 o'clock in the afternoo.. .vind, not unusual at that season, carrie; the flames along about eight naies to plff's house vfhich was burned th: next niornin: . 'LD, that as there v/as no evidence of intervention of a new agency in lic^tructicn of plff's property,- and as the -Aind was a usual one at that season, the damages are such as .vould reasonably be antici- pated by a prudent man. They ars the natural result of the fire. [he upper court here thought "natural" meant reasonably to be an- ticipated, it may also be used to mean that a result has transpired with- out any departure fron, the ususl operations of nature, and without any ex- traorlianry departure from the usual courses of natur . ro.T these two staLe.Tients, or cases, we can see, that the changes of the wind, either in direction or velocity, does not necessarily or always break causal connec- tion. Ordinarily, a change of ivind is a consequence reasonably to have been anticipated as probable. 51 Fed. Rep. rFB sL "^^: - not unusual change in tij^^ >vin; ■■.>.■, hul . break in causation. 66. The wind was not unusual and so the injury was held a proxiniate result. HILL V. A'INSOR. p. 48. Vass., 1875. Tort against owners of a stearr^ tut! for n8?;l-i^nce of those in charge whereby plff. was injured^ He was working on some piles which had been driven into the bed of the stream and had put in a brace to keep two of theiP. apart. The tug str;'uck them, knocked the brace out, the piles came together and plff. was severely injured. Judge charged that it was for jury to say whether the Injury was a natural and probable consequence of deft's negligence, Exceptions. HIil.D, that charge was correct. If it was probable that injqry in sonie form would result from deft'^ act, then deft, was negligent, and it is not necessary that the injury should have been foreseen in its precise form, so long as it now appears to have been a natural and probable consequence. Colt, J., when he says natural and probable evidently ir^eans natural only. This case modifies the probable consequence rule to a certain extent holding that it is not necessary that injury in the precise forrr in which it in tact resulted should have been foreseen, and that if injury in some form should have been foreseen, deft's act was negligent and deft, is lia- ble if it now appears that what in fact happened was a natural and prob- able consequence of deft's negligence. SCHEFFER v.. WASHINGTON, *c. R.R.Co., p. 49, U.S. . 18S1. Action by executors of one Scheffer, deceased, to recover damages for his death, which, they alleged, resulted from negligence of deft. It ap- peared that owing to negligence of deft., a train on which Scheffer was collided with another. He was wounded, as a result went insane and fi- nally, eight months after the accident, committed suicide. HELD, that deft's negligence was too remote. Proximate cause of ScheffeP's death was his own act. It was not a natural and probable consequence of the injury received on the train.. Insanity and suicide are new causes, in- tervening to break the causal connection. 15 Wallace 530 held that a man's suicide while insane was not his own act, in the sense in which that term is used in insurance policies. In- surance policies provide that in case the insured dies by his own act, that the money payable on the policy shall not be recoverable. This holding is inconsistent with Miller's statement of the law in the princi- pal case,. To be consistent,' the court should have said that Scheffer 's death dis. not result from his own act. The court adopts the probable consequence rule, holding that insanit and suicide were not a result naturally and reasonably to be expected frci the injury received. "It was not the natural and probable consequence, and could not have been foreseen in the light of the circumstances attend- ing the negligence of the officers in charge of the train." rhe proxi- mate cause of the death of Scheffer was his own act of self destruction. It is doubtful if the case shouldnot have been submitted to the jury in the sam.e manner that Bishop v. The St. Paul City Ry. Co. was submitted, BISHOP v. ST- PAUL CITY RY. CO.? p. 52, Minnesota, 1892. Action to recover for injuries received by negligent upsetting of 67. of a car. U appeared that plff. was not apparently seriously injured, at the time, but gradually his health failed, and paralysis supervened. There was medical testimcney to the effect that this was caused by the in- jury. HPLD, that left's negligence was the proximate cause of the paral- ysis, if the injury received in the accident caused the disease in the course of which and as a result of which paralysis followed. If the probable consequence rule had been applied in this case, the case would not have gone to the jury. But the court did net apply that rule. They held the deft, liable for all results arising naturally Iron: the deft's set. They ssy "The injury received at the time of the acci- dent was the proximate cause of the paralysis, if it caused the disease in the course of which, and as a result of which the paralysis followed.^ "^'he case is irreconcilable as a matter of iaiv with the preceding cas- 2S. Here the case went to the jury; in the preceding case the decision was on a demurrer. Perhaps the reason why in the preceding case it was not given to the jury is the fact that it is difficult to prove the origin of insanity. Possibly the court thought that fraud would get in if the case were left to the jury. Earl J. in l^ihrgott v. Mayor of New York, p. 54, N.Y. , 1S84. Farl J., Rules holding a man liable for those results of his acts, which he ought to have foreseen are useless. The true rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct; what are such conseouences is generally to be determined by jury. Here is another rejection of the pfcSbable consequence rule. A woman in the earlier stages of pregnancy, so that it is unknown, can recover larger damages owing to her condition. ^r^N v. LUYS-f^R, p. 55. N.Y. , 1875. Summary proceedings stat. provides that if the proceedings be quasher by Supreme Court, tenant shall recover any damage he may have sustained by reason of such proceedings. Ti!is was an action under this statute. Damages complained of were removal of property (personal), destruction of a building, loss of a box containing money which he kept in a part of the building used as a stable. Deft, objected that he was not liable for money which was kept in such an unusual place. H-LD, that plff. is enti- tled to recover such damages as were the direct consequences of the acts of deft. If any part of the loss was occasioned by plff's act or could have been prevented by him, he cannot recover for it, but there is no ev- idence of any such loss here. Tfie loss of all things including the mone: was the direct and necessary consequence of acts of deft. The action was brought under statute allowing a man to recover for any damage he may have suffered. The case differs from the other cases we have had in not being a question of negligence. The case does not adopt the probable ccnsequenc rule. The court held that the deft, was liable for such damages only as were the direct consequences of the acts of the deft. In an action i 68. on a statute the court, here applies a different rule froni what it general- ly applies in conmion lew negligence. Q[J5;'^N V. SA.aNCER'S and AROHKR, p. 57, 'A'arwick Assizes, 15 i^ilizabeth. Indictment for /administering poison to Sleanor Saunders with intent , to kill. It appeaf-ed that prisoner intended to kill his wife, gave her an apple with poison in it, she gave it to deceased, a small child. prisoner told her not to, but did not try to take it away from deceased- H5LD, that this was murder. Prisoner gave tjie poison with intent to kill a person and -a person was killed. Though he did not intend to mur- der this person, yet it was murder in him for he was the original cause of the death. It is every man's business to foresee what wrong or mischief may happen from that which he does with evil intent. A criminal case. It was long held that a civil action of tort for tne death of a human being could not be maintained, but is changed now (generally by statute, sometimes by decision.) Today in a civil action the death of the daughter would be held to be the result of the father's act, in 3 case like the principal case. The result is perhaps not fore- seeable, but the court would not adopt the probable consequence rule in case of a malum in se. Causal connection is not broken in crimes by the act of an innocent agent, nor by the fact that an act intended to fall upon one person falls upon another. This is the doctrine of constructive specific intent. HARRFr^ON V. BIIRKLFY. p. SO. So. Car., 1847. Trespass on "the case. Deft, a shop-keeper, in violation of the stat ute on the subject, s Id whiskey to Bob, a slave of plff's, by means whereby the slave became intoxicated and*3ied. It appeared that the slave, after buying the liquor, drank himself drunk, fell down somewhere, and, the night being cold and misty, died from exposure. Judge left it to the jury to say whether the death was natural and probable consequence of deft's act. Verdict for plff. '?eft. appealed, excepting to this charge and alleging intervention of another cause, exposure. H'^.LD, that damage resulting from a wrongful act need not have been probable, in order for plff. to recover, but must be such as has actually ensued without oc- currence of any extraordinary circumstance such that ordinary course of nature is departed from. Instructions were too favorable for deft, if anything in requiring that damage be probable. As tc intervention of a new cause, it was one which deft's own act naturally brougV.t into action, and 30 it does not break the causal connection. In disposing of the case the judge below instructed the jury to fol- low the natural and probable consequence rule. The court above said on appeal, that this was too favorable for the deft. It held, that the con- sequences must be proximate and natural consequences. It said that by proximate was meant that deft's act must predominate over other causes. See p. S4 of Smith's Cases. This definition is not found elseiiihere. The court said that by natural results is meant not results which could be foreseen, but those which followed directly without any great departure from the course of nature. Results might be nstural looking backward, but not probable looking forward. The sentences setting forth these 69.^ ideas are among the most iniportant we have on the subject. "j 1. Sedgwick on Damages. 8th Ed., Sec. 112, has something to say which | bears directly on '.^'ardlbw's opinion in Harrison v. Berkeley. SALISBURY V. HER;^H!LNH0DER, p. 67. Mass.. 1871. J/ Tort for injuries to building. Deft, occupied adjoining buiiding. In violation to oiU ordinance he hung a banner. sign across the street. In a gals the bolt/whi;;h held the other end came cut and was hurled across the street through* plff's wndow. Judgment for deft. Appeal. Deft, contends the injury resulted from inevitable accident. HTID, that this would be an excuse if deft's set were lawful and he had used due care. But deft's act was wrongful and this wrongful act placed the sign in reach of the gale,- and so was a proximate cause of the injury. Fact that a natural cause operates in producing an injury which could not have hap- pened but for deft's unlawful act, does not make his act so remote as to excuse him. Somewhat similar to Queen v. Saunders, ante. Court declined lo ap- ply "probable consequence" theory. Act here is malum prohibitum. All courts would probably agree with Queen v. Saunders, but some courts would not follow Salisbury v. Herchenroder. Courts frequently fail to apply "probable consequence" theory or rule as a liability in cases where deft's act is illegal in the sense of being specifically forbidden by law, es- pecially if the illegality were of some magnitude. If deft's act had not been illegal, he would not have been responsi- ble ifi he had used due care. rVhy responsible here? Pollock, 2nd Ed, p. 23. "Commission of an act specifically forbidden by law or omission to perform any duty specifically imposed by law is generally equivalent to an act done with intent to cause wrongful injury." Deft's illegal actwas continuous right up to the time ol ir.r injury. ^ILSY v. ^^^ST JPH^'^ is the proximate cause, not necessarily the whole proxin.ate cause, but 'a part, of it, he is liable even if this part is much the smallest part: Bish. Non. Con. Law. Sec. 39, note 7, Beven p. 73. Take this case: two dogs owned by different men kiolled some of the sheep in a flock. !'"'ach owner in the absence of statute is liable only for those killed by his own dog. This is not a case for an application of the principle just given above. 2 Sheamnian 5- "^sdfield on Negligence , 4th 5d., Sec. 638. Suppose A is waUing on the street and is injured by the simultane- ous negligence of B and 0, A using due care. A sues E. B. says, "0 was negligent also, and so I am not liable." One of two negligent per- sons is not excused because there was another; either is liable for the whole diimage. Whether they are liable jointly is another question. Neither one cin ask the court to apportion his share of the liability. Plff. however can get but one satisfaction. As to joint wrongdoers,- s-' Oooley on Torts, 2nd ^'i. 1-^-1«'^ Smith's Oases chap, io, pp.. 6^9 to 713, If there is concert of action between the wrong doers they may be sued jointly or separately. See Smith's Oases on Torts p. 669. A'here there is nc concert of action between the wrongdoers, they may be sued separately. In the principal case, the tramcar driver and plff's driver were simultaneously negligent, HOGLE V. m^l YORK O'i^NT. &c. R.R.Oo., p, 94, N.Y., ISS:". Action to recover damages for injury to plff's woods caused by deft's negligence. Deft, requested court to charge that plff. could not recover if he neglected to use reasonably practicable means to suppress it. Court refused, holding that as plff. was not at fault in the origin of the fire, he was not bound to make any effort to suppress it. Verdict for plff. Appeal. H'^f.iO, that judge's charge was erroneous. Plff. perhaps would not be bound to use every possible effort to suppress the fire, but he should do what was reasonably practical. New trial. See Kellogg v. The Pailroad Co. p. 198 at ?04 and S05, a case where plff.' could have prevented the injury. LOKi^-R V. DAMON, p. 95, Mass., 1S55. Trespass quare clausum. Declaration that deft, destroyed part of plff's fence; cattle got In and destroyed plff's grass, so that he lost a year's profits of his close. It appeared that plff. allowed the breach to remain unrepaired for six months. H^'LD, that for direct consequences 76. alone of deft's act plff. cjn recover and not tor remote consequences which pU't'. might have avoided by his own act. It plff. had not known of the broken fence it would be different. He did not know icf it and should have repaired it, and hence cannot recoverfcr subsequent damage. Note to Hogle v. R.R.Oo. and Loker v. Danion: In iVylie v. R.R.Co. ante 69, ■ a third person had an cpport^unity to stOG the fire, bui dia net do so, yet plff. recovered. Here, "Pjlff. had opportunity to stop fire. Principle here applied is called "rule of avoidable consequences." Damages, the continuance of which plff.- might have prevented by his own reasonable care, cannot be recovered, for law will not permit plff. to ascribe the whole of his damages to deft.., but plff. still has an action for damages which occurred before he could stoj them. I Sedgwick on Damages, 8th ltd., sec. 204. Rule is one of Umitation on amount of plff's recovery. Post, pp. 191 and 198. 9 Har\ Law Rev. 8C. UMMARY OF LEGAL OAUSI^S. It is the most important subject in the two volumes on torts. Ever:y case raises tjie question of legal cause. Bacon's maxint= "In jure causa proxima non remota spectatur" furnishes no assistance in determining what is the proximate and what t,he remote cause. Bacon said "It were infinite for the law to consider the causes of causes, and their impulsion of each other; therefore it contenteth it- self with the immediate cause, and judgeth of acts by that, without lock- ing to any father degree." This is not to be taken literally. See :^ooley on Torts, 2nd i^.d., p. 88. The proximitji of cause has no relation to contifiuity of space or time. See 4 Gray 449; Beven on Negligence 7^, "3. The theory of Mill is impracticable for as before shown it holds either oall or none who were in the chain of antecedents, TH!^: "BUT f^'OR" RIJLF;: It is similar to Mill's rule but it allows one antecedent to be singled out. It is objectionable because it allows a remote human antecedent to be held liable though there were others more wrongful and more proximate. It would allow the plff. to trace back tie causation until he struck a capitalist. This rule is rejected by the great weight of authority. A case illustrating the use of this rule i: 3ilman v. Noyes p. "??> of these notes. THE "PROBABLE CONSEQUENOE" RULE: Deft,, is liable for such conse- quences only as a reasonable man standing in deft's place at the time oi committing the tort ought to have foreseen as likely to happen. This rule is the most popular one. The first exception to this rule is, deft's liability is not limited to probable consequences in cases where deft's act was illegal in the sense of being specifically forbidden by law, especially if the illegality were of some magnitude. Salisbury v. Herchenroder, p. cl| in the Oases. The second exception to the rule is that it is not necessary that damage in the precise form in which it hap- pened should have been forbidden, if deft, should have foreseen that seme damage could happen. Hill v, Winsor p. 48 of the Oases. The third, ex- 77. cepLion to Lh3 rule is: where deft, intended to produce the spsoific re- suit which actually followed,- deft. Is liable, although that result was not probable. The fouyt'th exception to the rule is: where the act is an intentional act done f/oni a consciously wrons^ motive (that is, iirin^oral acts, although such ajCts would not come within the purview of the crimi- nal law), deft, is pp'obably liable although deft's act is not specifical- ly illegal. ;-:ee 1 /Bishop's New Cri/n. Law, note to sec, S?7. These four exceptions are/' in the direction of extending deft's liability. It is possible that additional exceptions to the probable conser;*- ^("^ quence rule are fiffth: the doctrine of Vicars v. 'illcocks, p. 72 of the dases. This case is perhaps wro g however. See foot of p. 74 of the Oases. Sixth: the arbitrary lindtation of liability for the spread of fire, adopted inl Ryan v. I^.Y.Cent.R.R.Co. This case is wrong. Sev- enth: the doctrine of avoidable consequences. These last three excep- tions restrict the deft's liability. The popularity of this rule is due to the fact that the cases are usually cases of negligence- and negligence is deterniined by the acts of reasonable n:en. Then too,- it enables the judges to unload the question onto the jury. it is 8 serious question whether one rule should be sought for to cover all classes of cases - whether it n;ight not be better Lo j^et dii- ferent formulas for the different classes. TH£ LAST A'RCNGDOER RULB: The legal cause is the last 1or nearest) responsible and culpable human agent in the chain of antecedents, that i; the one last before-the one nearest Lo-Lhe happening of plff's daniage. Aharton on Negligence 1st Ed. .App. botton. of page S23,. also sair.e volurre sec. S5 to 39, sees. 1S^- to 14E, Bishop Non 3on. Law, sees. 44 - ll. The first exception to this rule is that deft, is not liable if the nearest human wrongdoer that is, the deft, is a very remote link in the chain of antecedents. The force which he set in motion may have become exhausted or spent before the happening of the damage. This limitation brings the rule nearer to the "proximate and natural" rule. The second exception to this rule is, the last wrongdoer, although himself liable is not always the only one liable, an earlier wrongdoer may also be lia- ble, first, where the earlier wrongdoer intended that his act should hav. the effect of inducing the later wrongdoer to do the subsequent tort; or, second, where the earlier wrongdoer foresaw the commission of the later tort 33 a probable result of his own con'.mission of the earlier tort; and, third, (according to some authorities), where the earlier wrongdoer ough.- Lo have foreseen such result as probable. Lane v. Atlantic iVorl*;harton on Negligence 1st, £d., p. \^,Z. Tf'e probable consequence rule also has these last two exceptions. m PROIflMATiL' AND NATURAL RUL^ . Proximate means predominating cause, naiural means consequences en- suing without an extraordinary departure from the usual course of nature, even though not to have been foreseen as probable. The natural and proximate rule is: Daft, is liable if his act was the predominating cause and was not interrupted by any unnatural agency. ^ ' 78. In usiny, this rule, you take your stand after the accident, and not be- L'ci'e, as in the probable consequence rule. The rule is not a good work- ing rule; it has been expressed differently by different writers. Prof, ^niith thinks it is the ccniing rule. Perhaps the cases are harmonized by this rule which may be stated thus: Deft, is liable for -- the probable consewuence of his acts and for such improbable consequences as result prcxiniately and without any extraordinary departure from the usual course of nature. The ?nd, Srd and '''th exceptions under the nrobable consequence rule would have to be .stated as exceptions where one factor in bringing about the result was an Sixtraordinary interposition of nature, T^e ^th exception given by the probable consequence rule would not have to be stated as an exception un- der the last wrongdoer rule. The 1st and 2nd exceptions to the last wrongdoer rule need not be stated under the prcxiii;ate and natural rule. '^/hatevsr rule of legal cause you adopt, having once established the causal connection, the latter is not- broken by the ;r:ers intervention of: 1. Ordinary natural forces, Porrnpv v. M^rsh case, p. 1 of thi. Cases, he usual or natural action of an animal, f. an illegal act (transporting Confederate soldiers) then plff. could ncit recover. One offender against the law cannot set off against pir{'. that he, too, is a public offender in another .. distinct transaction'. But when both have been engaged in same illegal transaction, then lavv\gives no relief. See 40 3a. 52 (Brown, 3. J., at 54, 56) 63 H.Z. 532. The Confeder- ate States had a governipent "defactc" at that tinie, which ndght possibly have legalized act of Caipnon, under its orders. rouri thought there was no duty of care wher^, bolh parties were engaged in the same illegal transaction. Contra, 3rbss v. Miller, (Iowa) 61; w.'.*^. Rep. 385. B03W0RTH V..INHB. OB' 3'A'ANSEY,- p. 109.- Mass., 1845. ction to recover damages for an injury received through a defect in tne rjighway. It appeared that plff. was driving on business on Sunday. 'There was a statute against this, except where it be necessary. Judge charged that plff. could not recover unless he showed that his business had to be transacte:! on. Sunday. Verdict for deft. SJxceptions. HELD, that this case con;es within the principle that, in order to recover, plff- must show hin;self free from negligence or fault. Judge's charge was cor- rect, that burden of proof is on plff. to show that his business was nec- essary, that is, that he was not engaged in an illegal act. This case has caused much discussion. The legislature finally in- terposed and changed the law as to recovery in such a case. The Vass. court in this case and Lyons v. Ues. seen: to hciv& ciiought that illegal travelling on Sunday was the legal cause of plff's injury. The view taken in the principal case that the accident !r;ust be due to de- fect in highway alone,, is peculiar to Wass. LYONS V. Dh.SOT!i;LLF;, p. 110, Mass., 1S7S. Tort for injuries to plff's horse caused by illegal negligence of deft. Plff., driving Sunday, hitched his hcrse at the side of the road behind deft's buggy. Injury was caused by deff's horse backing the buggy against plff's horse. Not. certain whether or not deft, was neg- ligent. Judge charged that fact that plff. was travelling on Sunday wae imntaterial, he could recover unless his negligence contributed. H^'", that this was wrong. Question is, did his illegal travelling on Sunday contribute to the inj ^-y^ '■'ecessarily it '^i-', ?c he cannot re- cover. \ The court said that if a man was travelling on Sunday it iwcessarily contributed to any injury sustained.- This is error. Steele \r^ Burk- hardt is right. The afases in other jurisdictions are overwheliri|/ngiy against the Mass. casei-^n the point of Sunday travelling. mm^' V. LAN, . lis, Mass., 1S80. Tort to recover for damage caused by deft's dog. Plff. wasldrivin;. on Sunday, Phe dog jumped at his horse's hei.d and a sniashup respited. H&LD, that plff. was doing al unlawful act, but it was rrierely a dcondi- tion and not a contributory cause of the injury. Hence he can recover. There is a statute in Mass. inposinc liability on the owner for in- jury ione by his dog even if the ov/ner is in no vfault in keeping that 8? partioular dog. The case can only be distinguished from the last case by regarding the assault of the dog, the same as an ...sault by the owner, that is, by regarding the attack of the dog as a wilful act and by holding that the remedy for such an assault it is not barred by the fact that plff. 'was illegally travelling; or perhaps the statute in'pcses an absolute liability. A'ALLAO!? V. MERRIMACK RlVt-jR NAV. & '^:XP. 00., p. 114, Mass., 1 ^"^9 Contrary to law plff. was sailing his yacht on Sunday, when he was run into by steamer of deft., and for the damage he brings this action. 1st count alleged that defts. were careless and negligent; 2nd, that the\ were wanton and rr;3licious. HI'LD,- that plff. cannot recover on first count as his own illegal act contributed to the injury. But on the second count, his title to an action would be independent of his unlawful act, for the injured was caused solely by deft's wrongful act. fhe ccurt was consistent in applying the same rule to traveJling ori water that it does to travelling on land. It applied the doctrine of '/;elch y. Wesson to a case of intentional running down. The statute of 1884 so changed the law that a violation of the Sur- day travelling la^' is not a defence to an action of tort. >ee p. 115 note. SUTTON V. TO^N OF WAU^ATOSA, p. 115, -'.isconsin, 1S71. Action to recover for injuries to plff's cattle, caused by the breaking down of a defective bridge. Plff. was driving them on ?undcy. Court granted a non-siiit on ground that, as plff. was violating a stat- ute, he could net recover. HELD, that a distant wrongful act of injured party will preclude his right to recover only when it has the relation to his injury of cause to effect,. Violation of the Sunday law had ro such a relation to the injury in this case, the time of the action being wholly immaterial, and the plff's offence i" no way contributing to pro- duce the injury. J.'idgment reversed. The fault of the plff. in order to preclude recovery must, bear the relation of a cause to the effect produced by it. The opinion of Dixon, C.J., has carried the profession against the ?/ass. cases. It has car- ried writers abroad against the J^ass. rule as to causation. See the note on p. 122 in which the Vermont court holds that Dixon is right as to causation but also holds that the law about defects in highways was net intended to apply to illegal travellers. See 12 R.I. 392. See Eisl. Non. Con. Law sec. 63, S'i ; 69 Conn. 1. '"■ixon was right as to causation but Ross was right as to recovery. NESCOMB V. BOSTON PROT»=CTIVF DRPT. , p. 123, Mass.| 1S8S. Tort for personal injuries sustained by plff., a cab driver, by a collision between his cab and a sagon of deft's. T!!ere was evidence that at the time plff's cab was projecting somewhat, into the street in violation of a city ordinance. Deft, requested judge to charge that if plff's unlawful act contributed he could not recover. Judge refused, charged thst violation of ordinance was merely evidence of negligence ana 88v ii was a question of contributory negligence. Verdict for plff. Ex- ceptions,, HELD, that if plff's violation of law contributed directi,')k.-««^,. and proximately to the injury, he cannot recover, no matter whether his '^illeisal act was negligent or not. 'Question of negligence is' immaterial, '-xceptions sustained. Important case. decides/; th^t plff. may be barred by his illegality 'although that illegality is n^s't negligent. He may also be barred by his fiegligence, without illegali| some evidence ourju nic H-rLy injured was not capable of exefcising judgment and discretion. If child was chsrgeable witti care, jury should have determined whether she acted with that degree of prudence, which might be reasonably expected, under the cii'cuaistances, of a chila of her years. Judgment reversed. It is always a question for the jury as to how much care the child in question cugnt to iiave used, still the child may have been so young, in some oases, as to justify a judge in assuming as a matter of fact, that the child was not guilty of contributory negligence, as in •^3 Pacific Reporter 2^. Here the question was properly submitted to f^-- jury. *! In criminal law there is a conclusive rule that a child under seven cannot commit 2 crime. In torts there is no such rule as to care. The rule is that the child should use such care as an average child of that age would use under the circumstances. It is not a hardship to leave children outside of the operation of the ccn.tr ibutory negligence rule, as that rule was not intended for the benefit of the deft., and deft, is notliable anyway unless he was negli- gent. An adult is bound i.G use such care as an average aduli, uc-Ji... use under the circumstances, unless a distinct defect or manifest incapacity be Shown,' for example, blindness. Ihe rule for a blind man would be, the care that a careful, prudent blind man would use under the circun- stances. Obviously, that might be more than a man without such defect would use. ^ee Holmes Com. law 109, 110. Contributory negligence is as much a bar to an action under a stat- ute as at common law, save where the statute points out an actual liabil- ity, for instance, in 32 H. R.Rep. ^^.7 , a statute required that shafts be fenced in and provided the damages for an accident where they were not fenced in. Contributory negligence was not allowed as a defence, as the statute was presumed to be intended for the benefit of workmen who •.vers negligent. '.'here a child is hurt by the negligence of another four classes of cases may arise: (1) action by the child for his own benefit and defence negligence of child; (2) same action as one, and defence imputed negli- gence, that is, negligence of parent or guardian, or one standing in the relation of parent, etc.; (8) action by child's friend or parent for child's benefit for less of service and other rights. Cefence, parent's own negligence; i^) same action as in three, and, defence that, parent is barred by negligence of child. There is also the case where a child is the plff., i.--. iio^^ii^enl. and also a trespasser. Ths--- -''•.'■■■erent cases sre brought in the cases and lectures. ST^^IINVKT^' V. KI^LLY, p. 191, Indiana, 1S80. Action for assault and battery. Deft, requested that the jury be asked whether fault or negligence of clff . contributed in any way to the injury. Judge refused. Appeal. --[iC, that the refusal was right 96. Tne jocu'ine oi oonLributory negligence has no applic^ion to Ihe case of an assault and bi^ltery, for person so assaulted is under nc obligation to avoid the samq by care, and his want oi' care in nc sense contributes to the injury. iHe cannot be deprived ot his redress on the ground that he took no care to avoid the invasion oi' his right. Contributory negligence is no defence in an action for intentional injury. There is no duty to avoid the results of an other's intentional injury, but one /must use due care after being injured, 1 '^'edgwick on Damages, 8th E'd|, sec. 204. To illustrate, suppose A intentionally wounds B, B sees he is about to be injured mi does not avoid it. /Afterwards he is negligent in treat.iient of wiund; it increases his injury from ^250 -to $1,000. B brings suit fcjir personal injuries, A pleads contributory negligence, that B might have slvoided ail injury. 3 can recover $250. Wanton ok- reckless negligence is a mesningless terjri and the author- ities which ^^llow a negligent plff . to recover for it are not to be sup- ported. By/ wilful negligence the courtii mean, 'A'here a n:an knowingly o.T:its to do .'his duty in the full consciousness of the consequences. It is not desirable to have this niiddle ground. ?5 Ind. 293 and 294 con- tains a careful stateirent of the nrdddle ground. See idso on middle ground Am. &. Eng. Encycl. of Law Vol. 4, p. SO-1, par. 36. Flff's contributory negligence must be in whole or in. jart the legal cause of the daiiage, but just what the legal cause is is a different point, and when it is once settled, it does away with all difficulties of contributory negligence. Contributory negligence only arises in cases '.vhsre the legl cause is a conipound of acts of plff. an'd deft. A rule is coniing in by statute in sorre states that plff. niay recovtr in proportion to his negligence, thfi less the negligence the aiore the recovery. I'he difficulty of this rule is in apportioning ttie dan:3ges. The penal theory of explaining contributory negligence, namely, thst p]ff is guilty and so must be punished has an element of truth in it. Harv. Law Rev. 258,- article by -jchcfield. The idea is to induce people to live up to the law; the punishment for not dons so is less of their right of action. mm v. ANTHONY, p. 194,- Penn.,' 13B5. Case for death of a horse alleged to have been caused by negligence of aeft. in not keeping in repair a fence whereby plff's horse escaped and ?/as injured. Plff. clain;ed that th^re was an agreement whereby deft, was to keep the fence in repair. Plff knew the fence was down, when he put his horse cut tc pasture at night. Judge charged that del\.. was liable if he failed in his duty to keep up the fence, and refused to charge with regard tc plff's contribui-ory negligence. :■ LD, that this was error. Action was net for breach of contract, but. was an ac- tion of tort tc recover daiiiages for a loss caused by deft's negligence. Negligence being gist of the action, contributory negligence will bar re- covery. Plff. should have sued for the neglect tc fence, it being a breach of duty and the court logically would have had to let hiff reccvc . 97. Doubtful if the defence of contributory negligence should be al- lowed where there has been ■.:. breach of contract. The case is contra to Kellogg v. The Railroad. In Tonovan v.'f^.R. deft, was bound to keep fence by statute; here,, deft, was bound to keep fence by contract. That was case of a statute and this was s case of private iontract. DONOVAN V. HANNIBAL &,'ST. JOSEPH K.H.CO., p. 1.85, ;asscuri, '38. Action for double damages under statute requiring Rs. to maintain fences along the line where it passes through enclosed land, and pro- viding that they shall be liable for double the damage done to animals through failure to coirply. It acpeared that deft, negligently delayed in building such a fence by plff's land. Flff, finally turned cattle into the field and owing to absence of fence they strayed on track and were injured. Deft, offered no evidence but requested court tc charge that if plff. put his cattle into the pasture knowing that there was no fence, he was guilty of contributory negligence and could not recover. Deft, inswered plff's charges only by a general denial. HFLD, thst the charge was properly refused, as contributory negligence was not pleaded. Further the charge requested is bad because it did not leave question of negligence to jury. Further plff. had a right; to pasture his cattle there, which he could not be deprived of by deft's failure in its duty, even though aware of its failure. The Legislature had in ir.ind passengers also. ''''e are to look at na- ture of act prohibited and reason why prohibited. I'^hat do. the words mean when usedin this particular statute? And for this particular pur- pose? To read doctrine of contributory negligence into this statute would make the statute nugatory. 28 Mich. 515,-15. Use of land by its owner is regarded as so important that owner is less restricted than in use of his chattels. Legislature intended precisely that the owner should not be deprived of the use of his land. ^se Krum v. Anthony, post. Authorities are with Donovan v. H.R. Here, pJif. knew perfectly well that deft, had not complied with th^- law. KI-iLLOGG V. CHICAGO & K.'^.R.R.CC, p. 19S, :"is., 1S70. Action to recover damages for destruction of stables, etc. , by a fire alleged to have originated in neglect of deft. Fire was commu- nicated by sparks froir engine to dry grass which had been allowed tc ac- cumulate on deft's land and thence passed to similar grass on plff's li:nd (allowed tc accumulate accoriing to custofn among the farmers); a strong wind aiding it until it reached the buildine in question. Ver- dict for plff. Appeal. HirLD, that the instructions of court below, leaving it tc jury to say whether deft, was negligent in leaving dry grass there, was undoubtedly correct; also refusal of court below to chirge that plff's leaving dry grass on his land was contributory negli- gence,' was proper. Doctrine of contributory negligence does not apply. Plff. was not obliged to abandon the ordinary and proper way of using his land, simply in order to avoid possible consequences of deft's negligence 55 i>i.'/t.R:ep. 395 (397-3),' plff. owned hay a mile away from deft's 98. Slack. Dert. net^li^Jently set fire to his stack. Pllf. saw the fire, thouehtit would reach his hay but took no precautions. Court held that if plff. by due care cou,d have saved his hay, he could not recover. How distinguish t.hat case from Kellog«/v. R.R.? A distinction is drawn between present and imniediate danger ahd possible or probable only. ■"f'he principal case is right, buV there is a conflict of authority on the point. Prof,. Smith thinks i/, is right. Also that Lcker v. Da- ircn is right. .'- man cannot by his/own negligence inipose upon another the duty of abandoning the use of h'is own property, but after a danger is \set in notion by the deft., the plrf . is bound to dc all he can to avoid ks effect, as in the case of firp. Rogle v. the R.R. and Loker v. Ca- .* A railroad uses a dangerous agent, on its premises and must provide proper safeguards against the danger and damage created by its own act. The ad.iacent land owner as in Kellogg v.' R.R. is doing nothing of that kind and is net bound to provide safeguards against probable future harm, it is enough to hold him bound to try to avoid damage after the damage has been begun. He may make all beneficial us= of his land although the i^.H.Oo. is using a very dangerous agent on its premises; no duty for him to refrain on that account. ON 30NTR1BUT0RY N?:3L[Gs^NCS IN GFINRRAF... •■here there is a compound legal cause made up in part by negligence 01 plff. and in part by that of deft., is the only case where the doc- trine of contributoryjnegligence comes in. Contributory negligence had better be confined to cases where the legal cause is a compound of plff 't and de£t's ntigiigences. Contributory negligence is simply s branch of doctrine of causation. £1 H.-V.R. 8S5,SS8. Piff's negligence need not be sole cause; enough to bar recovery, if it is part of the legal cause. Beven, 1st M.- 135, 137, criticises "Contributory". ('«hen a third person has been injured by accident brought on by negligence of two persons, court allowed recovery from him whose negligence began to operate first, and who was not present at the time ana had no opportunity to avoid the accident at the time. '^Vhen suit is between the actual parties court will rather consider doctrine of last chance to avoid the injury. Prevailing view is that of Neal v. Siilett, ante 1?''. Possible theories: (IL Plff. is barred if substantial fault of piff. is found ary- »vhere in a chain of antecedents; "but for" rule. (2) Illinois Doctriie. (3) Florida view that the previous negligence of piff. would be consid- ered in mitigation of aamagesonly. (O Coctrine of Adniralty, dividin. the damages equally. (5) (Guery) If plff's prior fault is in a moral point of view worse than deft's subsequent fault, plff. cannot recover; probably no court has adopted this last, alttfcugh decisions may often have been unconsciously influenced by it. Impossibility of equitable apportionmient of damages between the par- ties in a common law action is one reason for adopting theory in Neal v. Cillett. Admiralty rule is called .justltia rusticorum. CcMmcn law courts do not care to adopt admiralty rule dividing the damages equally /I becauss sumpathies of jury mi^ht be with piiT. who was in fault. Neal V. 3. rule is soaietinifs called the "Penal" theory; bettec- be called Pre- ventative rule. See'"Schofield in 3 Harv. Law Rev. 270: "Ultimate Jus- tification of rule ia in reasons of public policy, viz., desire Lc pre- vent accidents by inducing each niember of connnunity to act up to the due care required by la;^^" To say that plff. is barred where he is a wrong- doer is not a corrgsct use of word "wrongdoer." In many cases plff. by his own want of cate, although he cannot sue, neither is he liable to be sued. His contributory negligence does not always imply a wrong on plff's part which makes him liable to be mulcted in damages. 2 Jag. on ■!.. p. 960. Pollock. 2nd ^d., 160. Flea of contributory negligence admits deft's breach of duty towar. plff. but alleges that plff. is barred by his own concurrent negligence. Defence of consent is no admission of breach of duty en part of deft, toward plff. Read carefully opinion in Nashua Co. case, ante 15R of the Gases. OFAPT'^R IV.. [ypi -ligknop:. This heading might perhaps better be imputed contributory negli- gence. Imputed negligence is a subject on which there is a conflict cf authority. TH"^: B^'RHINA. .ourt cf Appeal. 1S87. Three actions brought against owners cf steamer Eernina o.y rcpressn- tatives of three persons killed in a collision between that vessel and another, both being negligently navigated. One of the persons was a passenger, another was an engineer, net responsible for accident, third was second officer, himself to blame for the collision. Lower court held plffs. could not recover, on authority of Thorogood v. Bryan. Ap- peal. HELD, that owing to contributory negligence on part of second of- ficer, his representatives cannot recover. As to others, question turns on whether negligence of those in charge of their boat is to be imputed to their, so as to defeat recovery. It is not, Thorogood v. Bryan was wrongfully decided. I^leglect of cimibus driver or steamboat officer can- not be imputed to passenger. ''.here latter is injured by combined negli- gence of the person in charge of the conveyance he is in, and the one in charge of another conveyance, he can recover against either or both. Theory of identification of passenger with negligent driver is a fallacy and a fiction, contrary to sound law. This case is called Is'ills v. /Armstrong in the House cf [,ords. Thorogood v. Bryan was law in England for -10 years. It is over- ruled by the Bernina Ccise. It was rejected in the : . . soon after its decision and is now generally rejected. In the principal case, the engineer could not sue nis employer for negligence of his fellow servants, but he could recover from either of the joint wrong doing fellow servants and from the other vessel. If these wrongdoers were conscious cf their guilt, neither of them could re- cover contribution fron; the others. 116 v\/^. PS5 fcilcy/s the Bernina, 100. ihere the ne>3lii>ence of a hack driver uab n^i lii.puosd Lo Lhe pasben^ai:". It is the iealinM case on the subject. !"ne passenger there had no con- trol of the dfivsr. ouppose a friend takes you out to drive, is his negligence to be imputed lo you? i>io. A wife would probably be barred, but the view is 's;rowin,g that the husband and wife are not one in la.v and probably in sQ.T.s jurisdictions the wife could recover. If a passenger gives directions which are followed by the driver the- passenger would probably be barred by his own negligence. • ?.c if he is sitting beside the driver and does not warn hin: of a danger which the dPiver does nkt see, he is barred. /■ person who is riding in a public conveyance is net bound to en- quire into the antecedents of the driver, but if he started out with a driver intoxicated and n-anifestly unfit to drive, he v*ould be barred by his own negligence and not by any doctrine of imputed negligence. In fact the doctrine of imputed negligence is nc.v exploded, but personal negligence is still a bar. In PI S.W.Rep. 274, two persons were engaged in a joint undettakir.t. one was driving a wagon and the other sitting in the rear leading a horse. Owing to the negligence of the driver and a third party, the one in the rear, a blind man, was injured. HF:LD, tr.at the blind man cannot recov- er. If two persons are engaged in a joint undertaking, each is respon- sible for the negligence of the other; they are agents of each other. In the Bernina the engineer was not a" principal; he and the second officer were only fellow servants, not principals at all. The negli- gence of a servant when engaged in the business of a rraster is imputable, to the master. If 8 man sends a box by a freight train on the F. railroad and there is a collision with the B.& U., both railroads being negligent., can he sue the 8.& U., or is he barred by the negligence of the " . ' llroad, or of its agents? 69 N.Y. 470 at ^t82 and 4SH. HI^LD, that h^ i. oarred, though if he had been a passenger suing for personal injuries, he would not be barred. 27 HI. Rep. 1111. This rule will probably be followed generally. The reason why the passenger could sue is that there is no bailment. NEV'MAN V. PHILLIPSBURG HOPS'?: CAR OC, p. n? , N.J... 1890. Plff . was a child two years old, in the custody of her sister who was ?2. Left slone for a fev; frinutes, the child got in the way of one of deft's cars and v/as injured through negligence of driver. Question was whether neglect of person in charge of plff. should be imputed to plff. so as to prevent recovery. HELD, that it should not. Person in charge is not infant's agent, and so infsnt is not responsible for his misfeasance. A very young inf.-j-nt cannot be charged with negligence hiir.- ?.:lf, much less by substitution. Being in no sense the blamable cause of his injury, he can recover in a case like this. A child of two years cannot appoint an agent.' The only reason why one is barred by an agent's negligence is because he appoints the agent. 101. ciUL in Lfis case oi an ini-inL, ine law appoinis the agent or guardian to protect him, and net to injure him,' so the child ought not to be affecte. by the negligence of the parent or guardian, or other person standing in the relation of parent. {^ut to hold this there is no need of going into anv doctrine of isiputed negligence. The case can be decided on the au- thority of Cavieqf v. Mann. HARTFlilC V. ROE^tR referred to on p. 21;-] of the Cases is still la'A in New York and somewhat in Mass. The argument for that case is that the father could not recover for the result of his own negligence. But in legal theory the money belongs to the child, and will be usea for the benefit of the child,' although in fact, the father generally gets the benefit of it. On theory the Newman case is right and Hartfield v. '^oper is wrong, but the point is in conflict. Bi'I.L'^FONTAINF S INC. R.R.OC. v. -^nY , ,. 13, Ohio, 1363. •sich,.i. The reasons for the doctrine of contributory negligence au i!ju ii^Mi.v m the case of infants. The Infant has not ^.c-.!: -uilty of any wrong hiaiself, and it is not .just to make his personal rights de- pendent on good or bad conduct of others. Can it be true that if only one person offends against an infant, latter has his action, buL that if twc so offend, their faults neutralize each other, and he is without reaiedy? He should have action against both. GLA^'^'-Y V. Hf^STONVILL'^ <^c. R.R.Cc, p, 813, Fenn, 18S8. Action to recover for loss of son's services through his beirg hurt by a car of deft's . The son was four years old and was alone In the street at the time of the injury. [;eft. requested court to charge that kno/dngly to allow a child of that age to wander alone in the street is such negligence in parent as will prevent him froir. recovering in a case like this. Court refused. Verdict for plff. I'.rror. H-:LD, that where a parent by negligence contributes to loss of child's services, he cannot recover froii the other wrongdoer. Plffs. allowing child to go about alone was breach of parental duty, and as such, negligence in law. Hence he cannot recover and charge requested should have been given. in the Newman case the actioni is by the child for his own benefit; here the action is by the parent for the loss of service. Both actions can generally be brought. The Newman case held that if the child is negligent the child is not barred, but in this case thai the father's negligence will br-;r the father's action for his own benefit. The doc- trine of "lassey v. R.R.Cc. is we.ll settled. The Newman case and "A'y- Tcre v. i^ahaska Co. are disputed. The instruction in the principal case should have added "that the situation of child must be regarded in whole or in part as the legal cause of the accident." 7 Cent. Law Journal, 313; 1 S.& R, on Negligence sec. 7?, n. 3; Beach on Negligence 2nd Rd.,. sec. 132 tp 135. The weight of authority is that a parent is barred by the negligence of the child. 59 Fed. Rep. 423, • 55 Fed. Rep. 39. The latter case held that the parent was barred when the child y/as sc far negligent that he could not maintain an action for himself. 102. The child is not identified with the father, the father is not lia- ole foV his torts, and recovery goes in theory for the benefit of the child, 30 there is really no reason why the child is barred by the par- ent's ne&iigence, but he is generally. ^YMOR'^ V. MAHASKA COUNTY, p. ?19. Iowa. 1889. Action .to recover damages for death of plff's intestate, alleged to have been caueed by deft's negligence. Judgnrent for deft. .Appeal. It appeared th^t Henry Smith and his family, including intestate,' then 2 years old, attetfiipted to drive ever a bridge of deft's. Tt fell through while the carriage was on it and the child was killed. There was con- tributory negligence. HFL';, that negligence of parent is not imputable to child. The cshild was free frciri fault, and the oiere fact of negli- gence on the par f- of his parents, should not bar an action brought for benefit of his estate. Recovery may result in an undeserved benefit to parents as they inherit child's estate,- but that fact cannot 'I'^fe^t the action brought in the right of the child. Action on statute by administrator, but proceeds are going to parent Conflict of authority as to whether parent's negligence should be a bar when he is sole beneficiary. It -f/ouJd not bar when there are several beneficiaries and only one is guilty of contributory negligence. At ccirircn law,- there was no action for causing death. The action is by statute. The question is what the legislature nieant by the statute. Had it meant to bar a sole beneficiary, it would probably have said so. The point is in dispute. "^iffany on "^eaf- '^" "Tongful Act," sees. 69, n , re. '>'??.-^ , CHAPT^^'R VI. 'Whether Negligence of maker or vendor of chattel may make hiir. lia- ble to persons other than those contracting with hiir. AINT'^:PBOTTCM v. i\ RIGHT, p. S20, 10 Meeson ^- Welsby, 109, 1842. Declaration stated that deft, was a contractor for supply of mail coaches,' and in that capacity contracted with Postmaster General tc sup- ply one, and tc keep it in safe and secure condition during the contract; that one Atkinson was under contract with Postn'aster General to convey said coach over its route; that he hired plff. as driver. Declaration then alleged thst deft, so negligently conducted hin'self that the coach became unsafe, thereby an accident happened and plff. was injured. HE'LD,- that plff. not being privy to the contract,' could net recover. Oeft. had to deal only with him whom he contracted with. j'oward hini he owed 3 duty, but none toward plff. It is dantiruir. absque injuria. Leading case. Plff. conipiains that deft, failed to keep coac)j' in repair. Proper construction of declaration would be that plff. cb'unted simply on g breach of contract; there was no allegation of general duty of deft. Yet deft, knew that stage coach was to be driven by a coach driver, one of the class to which olff. belonged. Decision that this declaration is not good is probably correct, but it seeiris as if declar-j- tion could be formed on facts which would be good. Tendency of court here tc hold that facts which constitute a contract cannot have any other effect whatever, which is probably net true; it can be the starting poini of some other legal duty. 3ass important lol- los dicta. Pollock cri Torts, ?pd Ed. 443, 447, 449. H. Smith on Neg.-2nd En^. Kd. p. 7. 1 Hher. ^- 'Red. on Ne«.H*'. Ri?elow's f.eadinp '^ases on forts, r-. "I'l, 515. 3teGR and n?^: v. SKlVINGTOi^ p. 224, Exchequer. 1S59. /Action brought by Dlff's wife against a chemist. Latter sold plti . a coinpound he represented as a hair wash, knowing it was for his wife. Owing to negligence of chemist she was injured, ihe ccxpound not being fit for a hair'' wash. H?LC, that she could recover. The action is not upon the contract, but for breach of the duty which deft, owed, not only to purchasers, but to the persons he knew the iriixture was intended for, to use ordinary care in coir.pounding it. Judgment for plff. This is practicably the wife's suit. 3o a third party, not a party to the contract, is allowed Lo recover. The court did not overrule ' interbottofi. v. Aright, but limited it so that a person who is particu- larly naired at the time as the person who is to use the article bought, could recover for any damage done in its use. The court stopped at an illogical point; instead of stopping at the point at which they did, thsy ought to have extended the liability of deft, to all of that class who might reasonably be expected to use the article. The case goes not on warranty nor fraud, but on negligence. The gist of the action is neg- ligence and Diisrepresentaticn. Deft, whs certain i-., ^uilty of -i ndsrep- resentaticn as well as of negligence. Prof. ;3iiiith thinks the dicta in 'Unterbottom v. "'right wrong, and the decision in the principal case correct. But the grounds of the decision are erroneous. f'hs court should have allowed anyone to recover who might reasonably be expected to use the article not merely persons mentioned. Tti'Oltk'S ANC . . lN:;Hi!;iTii:ti, p. 227, New York. ISc?. /-ction for in.iuriss sustained by Mrs. Thomas from effects of bella- donna taken by her by mistake as extract of dandelion. Through negli- gence of deft., a manufacturer of mediqines, belladonna a very dangerous poison, was put in a jar labelled dandelion and sold to druggist, who sold it to another, who sold it to plff. Plff's wife Look some of it and was seriously injured. Deft, contended action could not be main- tained as there was no privity between him and plff. HSLD, that natural consequences of deft's negligence was death or great bodily harm to some person. TL was a breach of a duty he owed, not merely to his imm.ediate vendee, but to the final purchaser who bought the article for use. As his negligence was imminently dangerous to hwman life, his liability ex- tends beyond those with whom he contracted. This is a celebrated case. The jury founa o^io Koord, the drug- gisL'who sold from the jar a portion of its contents to one of the plffs, was not negligent. The Chief Justice put the decision on the ground of the great danger of the article to human life. The quality of the drus in this respec^ ought to make a difference in deciding whether deft, is negligent, but 'hoL in deciding the class of persons who may recover. 10^. The court seemed to P,o on the idea that the dangerous quality of the dru9, increased the scope of the liability, but there is no lopacal dif- i^erence between selling n to retail dealers and sendi g it out by agents i'Aith the same represerjtation. -ee Clerk 5- Lindsell on Torts 365 to 368. The courts say in subsjtance that the liability of deft, extends or con- trtects according as th'e drug is more or less dangerous to human life. ^'u»pose the iianufacturer loaned the bottle as a kindness to one party ana he (loaned it to another. The latter could not sue the manufacturer, he woiild not be one of the class expected to use it. The liability in the principal case would be the same if the niedicine had been given as a gifl by the manufacturer. Suppose you find a bottle and take a dose, relying on label, can you sue makers for in.jurv? Probably the question would be, was it rea- sonable to rely on the label under the circumstances? Probably jury would find that it was not. Sale or gift to A, loan to b, & ought to oo nsla to oe one of the class expected to take it. Loan to A, by hini loaned to 8, latter not' one of the class. Whether intervening negligence would break causal connection de- oends probably on, whether deft, ought to have foreseen it as probable. BLOOD BALM 00. v. OOOP'^R.. 331, Ga., 1889. Action by Oooper against Blood Balm Go. for an injury caused by taking some of their patent medicine according to their prescription. It was found that the medicine contained a poison sufficienl to cause the injury. Deft, claimed a non-suit, fl) because the drug was sold to plff. not by deft., but by a druggist; (2) because the drug was not immi- nently dangerous. HSLC, that sals by intermediate person made no dif- ference as long as medicine was made by deft, and taken according to his directions. Manufacturer of the medicine liable to all who take it ac- cording to his directions and are injured. The directions accompanying t.he medicine make it dangerous and proprietor's wrong lies in this, though drug of itself is not imminently dangerous. "he proprietors intended the purchasers to rely on his recommenda- tion. The case differs from Thomas v. Winchester in that, it was not a deadly poison, but the medicine contained ingredients which were likely to do harm if taken in the quantity prescribed on the label. The plfi. was not an original vendee, but was not so far removed from deft,, here as in Phomas v. .Vinchester. The case goes far beyond the case of ,'A'in- tsrbcttcm v. Wright or Geo, v. ?kivington or even Thomas v. 'Unchester. In fact it goes the farthest of any Am. case but Prof. Smith thinks it goes none too far. SOHUBFRT' V. J.R.CLARK CO.. p. 254, Vinn. 189-. ^' Action to recover for personal injuries. Plff. was a house pain- ter in employ of one Phelps. 'Iter ordered a step ladder of a merchant who procured deft, a manufacturfer of such articles, to deliver one to plff. It was made of very poor wood and was dangerous to use. Al- lgg^,- tv,.,^ deft, knew, or ought to have knov/n of these defects, but the J uc . oiners dia not, and couicl ncL have discovered them Kadder Ladder broke and piif. was injured. dLLD, that, ihough there was no con- tract relation between the parties, c^ft's neglect to disclose the de- lects in the ladder was a wrong to pUT. Fact that it passed throusjh interinediate hands ir.akes n, aiiTerei^ce, so lon£; as defect was known only to maker. Latter, in putting; the gladder up for sale, was -guilty of neglect toward the customer who should purchase it, and lor- injuries caused by that negligence he is liable. 1'nis case is like Geo. v. Sl^ivinton, in that deit, knew that plIT. ■as to use the ladder, for delt.'was tola to deliver it lo plif. But Lhe reasoning of the court goes far beyond the case of George v. Skiving- Lcn. Deft;, knew that the ladder was defective when he put it in stock, although he could not distinguish it afterwards. It was negligence to put such a ladder in stock. This case would be decided i^^^- •-••^" -^ '"-^y had the ladder passed throuiih several hands. CURTIN v. SCft«- . p. 239, Penn.. 1891. Ceft. entered into a contract with a Hotel Co., for erection of a hotel. The building was coiiipleted and accepted by the Co., and at an entertainaient given by t.he proprietor later, a crowd being on the porch, it broke through, fron; defective construction, and plff. was injured. It appeared that the porch was not built according to contract, but the defects were not apparent,, nor viere they known to the Co. Deft, re- quested court to charge that accident, happening after acceptance by the Co., he was not, liable. Court refused. Verdict for plff. HELD, that deft., owed a duty to his eiiployer only, none to the public. Dif- ferent fro.T; case of putting a deadly poison in circulation. Judgment reffepsedd. lends strongly to sustain iinglish decisions. This case follows .' inter bottoii v. "risht. •Unterbotton' v. i(>right is also followed in 51 N.Y. 494. See full report as to evidence of negligence, which however, ■ was net considered by court, above. Court held that deft, owed duty si.T.ply to man with who.Ti he contracted. Ccurt presunied that defects were not easi- ly observable. j's to renark on top of p. 242, deft, did not owe duty to the whole world, but such duty would be only to such class of person:-. as would probably use the hotel. The claiin is that the deft, should use due care and is not, as court seeuis to think, that deft, should be an in- surer. Dangerous things ir^ay be lawfully made, kept, and sometimes scld, if they are kept or sold with full notice or warning. 12 N.Y. 351. '.sight of authority is very strong that citizen cannct sue water compcny for failing to furnish water with which to put out a fire, in case of contract between city and company, 22 S.'.'s.Rep. 277; 4S.Pa.c. R. 59; con- ora, 12 S.'/s.Rep, 554, 557. But if Co. undertake to perform contract and in so doing they furnish son'ething which is used by the proper claso, and which is harmful, as in the case of furnishing impure water, they, are liable. In 45 Pac. Rep.^ 393, court held that where vendor knew of defeat, one who has contract relations with vendee, but not as vendor, can recover, 29 Atl. Rep. 301 (U.d.); the vendor sold a horse fraudently 106. representing him to be sound, in fact the horse had' glanders, which was coirir.unicated to the vendee's hostler; the hostler brought suit against the vendor. The hcourt held t)iat he could recover il his catching the disease was a probable consequ^^nce of the vendor's acts. In 7? Me. 52S a horsedelaer falsely rep/'esented an aniniai -^ oafe^ family horse. The horse wasS in fact dangerous and ran away with the purchaser. The wife brougr/t suit for injury. HJLD, she could not re- cover. There were no falsfe representations to her. The cage differs from 'Unterbottoni v. Wrighi where it was a case of iTere negligence, Bhereas this was a case of' wilful deceit. This case shows , (he tendency of courts to limit liability to the immediate parties to the contract. HKAVKN V. P5ND0R,- p. 242, Queen's Bench. 185?. /■ction to recover damages for injuries caused by negligence of aeft- Flff. was a workman in the employ of Gray, a ship painter; Gray con- tracted with the owner to paint a ship in deftjs dock. peii. under con- tract with ship owner, supplied a staging to be hung on t^he outside of the ship for purpose of painting her. The ropes were defective and un- fit for use, deft, did not employ due care in providing them they broke and plf . was injurec . adgnient for deft, in G.B. Appec^l. HKLD, that plff . could recover, as de£t, must be considered as haviing invited him to use the dock and appliances, and hence was under obligation to use due care to see that the appliances were fit to be used;. Brett, M.R. put his judgment on the booad ground that whenever a person is placed in sue; a position with regard to another that every one of crdlinary sense who did think would at once recognize that if he did not use ordinary care he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care to avoid the danger. Such a position deft, here was placed in with regard to the class of persons who might b. expected to use the staging before a reasonable opportunity for discover- ing the defect. As decided by majority of the court this case related to invited persons. Invited persons means persons present, by the consent, of the dock owners, on business of con^non interest to himself and the dock ow- ner. Brett uses the word injury on page 244 in the sense of substan- tial damage. Brett's dictum must be limited so as not to include cases of the ordinary and natural use of land. i man in the use of his own land may frequently do acts which cause substantial damage to his neigh- bor and the neighbor may do the same in turn with him,, but the law will not give any action. Clerk & Lindsell on Ports on p. 331, note A. The maxim damnum absque injuria, damage without invasion of plff's rights, was forgottgn by Brett. Seven on p. 83 critizes Brett, as begging the question, for the word injury correctly used assuir.es a legal 4uty. If Brett meant damage, it should be remembered that damage is frequent, with- out a legal wrong. 100 iJ.S. 195; L.R. 1893 caused a great, deal of talk. In L.R. 24 Q.B.D. 656, thistles on a man's land were carried by the wind on to his neighbor's land, the court held hs could not recover. If Brett's statement; of the law, bottom of i . , were taken broadly h^. could recover. Brett's statement must be limited as before said to or- 107. dinary and nalurai use oi' land. In 100 U.S. 195 an attorney looks up title for client, thinks he linds a clear title, gives clierft certiticats to that sITect, latter bor- rows money on strength of it, tfitle is in fact not good. Later onl the lender brings an action for nd'Slii^ence. HELD, he can't recover. Smith thinks that^; Blood .balm Co. v. Cooper is right and the dicta m .'intsrbotton. v. nr^ht is' wrong, but the weight of authority is agains nin;. i »■ According l^o Pros. Srrdth plff. n-ust prove the follcwins six propo- sitions in order to retpover. * f (1). fhe deft, se^t article out wiLh a negligent fnisrspresentation as to its fitness. (2). The plff. used the article,, relying on this misrepresenta- tion, and suffered damage, (3). Phat plff. acted reasonably in so relying. (4). Probably already included under 2 and 3. Thai piif, used the article in a manner and for a purpose intended by deft . , or which aeft. ought to have contemplated as probable. (:'), That plfi., even though not specifically in deft.'s niind when he sold the article?, was one of the class of persons by whom deft, in- tended the article to be used, or one of the class of persons ivhoin deft, ought Lo hase contemplated as likely to ush it. (5). That there was no intervening negligence of third persons (or contributory negligence of plff.) breaking the causal connection between dett's negligence and plff'*s damage. m A'here defence is set up that plff. put confidence in suuTVsnaee, and not in original vendor, that defence is not good - it is not neces- sary that plff. should put confidence in that, particular vendor, but puts his confidence in class of n^akers who sell that aritcle. he argument in favor of T'^'nglish authorities is that otherwise deft, may be brought into relations with persons with whom he would not de- sire to come into ccntBct as v.here original vendee sells article to some eneniy of original vendor. If there have been many changes in ow- nership plff. would find ii difficult to convince jury that some inter- vening cause had not come in. As Lc multiplicity of actions, see Innes on Torts, p. 107, lOS, note. The weight of authority j.-. .-oi.ongly against the fifth proposition gbcve, but sefc Clerk 5: Linasell, 3SS. Compare above propositions vvith the following extract from the opin- ion of Brett, Y.R., in Heaven v. Fender, L.R. 11, Q.B.Div. p. 509. "'A'henever one person is by circumstances placed in such position with regard to another that every one of ordinary sense who did think would at once recognize that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." 108. :>HAPTKH VII. DUTY OF OARii, ON TtiS PART OF OGGUPIUlft OF LAND OR BUILDINGS. SfcCTION 1.- Guty of care toward persons using adjacent public way. -■■-:'■ V. AnLs p. 250,/ S CjOR'iT'.on Bsnch (Mannin^^, Granger & icott) '69Z,- ISoO. Action on the case under t;(ii;tULc! icr compensBtink isii'iiias oi per- sons killed by accident. Declaration alleged that on dei't's preirases, ^buttint on the highway, v.as a/lar.se hole, which was insufficiently Juarded and so dangerous to passers-by, by reason of which insufficient ouarding, deceased slipped and fell in. Plea, that deft, owed no duty to fence in the hole. It appeared that deceased, walking, alons the highway in the evening, fell into open area cf an unfinished house of deft's. Judge charged that if there was a public way so near the area that it v/ould be dangerous to the public unless fenced,' then deft, would be liable if deceased was using due care. Verdict for plff. Rule nisi H^.LQ,' that this charge was correct. Deft, was guilty of a public nui- sance, even though the highway itself was not interfered with, for the danger would prevent full eriovirent bv ths cublic. Lsclaraticn disclos- es a good cause of action. i he fault of deft, was not in fraking the excavation, but in leaving it unprotected. It was close to his line and adjoining a highway. Had it iiierely joined a neighbor's land, and had there been no fence, neighbor could probably not recover. Deft, could rightfully dig the hole in his land, but it was dug in a place where it was likely that some one would fail in, and it was left unguarded. It was inconsistnt with the public right to use the highway. 4 H. & N. 67 was a case of an excavation about 5 yards from the line of deft's land. Plff. could not recover, the court holding that the excavation fi;ust be so near as to cause an appreciable danger that persons passing along the highway and using ordinary care might stray into it. .^0 Oonn. 535 held that the test is not the nuir.ber of feet, distant, but it is a question for the jury whether the excavation is so near tjie highway that it substantially en- dangers travellers who are using reasonable care. Prof. r.'n!ith thinks that this is the correct test. In Mass, the injured party aiust seek his ren'edy against the tc-vn, tnis is by statute, so there is no recovery against the individual. 10 ;^3tcalf 371; 1/^9 )^ass. 450. 'I. uty of Care towards Trespasser. LAHY V. CL'^JVH'LftND, 5-c. H.R.Co.. p.' 254,- Indiana. 1S81. ACTION FOR DAJ/A3E ALLRJGfcD TO HAVF: ^'"^ '^"-''^ THROUGH NtiiSLIGFiNT / failure of defts. to repair a building ^l h.:; -Lounds. The building ,' in question stood on deft's land near the highway in a state of disre'-^ pair. Plff. sought shelter there from a rain storm, and was injured fron. a piece of the roof falling in on hiir. HELD, that as plff. was a trespasser he took the risk upon hin:self of ail the mere on-issicns of 109. deti's. as to the conaition of grounds and buildings. CefLs., not hav- ing invited hin: there, owed him no duty to keep the building in repair. Plfl". was a trespasser and deft, owed him no auty to keep the prem- ises/ in a safe condition for him, See Bishop's Non-Con. Law,' sec. 105 as to shooting a trespasser - ri^lit conflicts with right; higher right of trespasser to life prevails. '.lo^iiVt here seeirs to take it fcl:' granted that plff. had not reached high- way, to hold against the decision in this case would amount to this - it) would be a duty of deft, to keep his property in repair for the sake 0^ trespassers. Distinguish carefully between harm wnich happens to a trespasser from the nature of the property on *hich he trespasses and LhaL v;hich happens from some act of the owner as distinguished from the condition of his property. -here deft, knew that his' property was in ruinous condition and did not warn trespasser from going upon it, courts hold that there is no duty of warning due trespasser, even though the danger is not open to the eye, and deft, sees the trespasser. Olerk & Lindse-11, 373, Iv. The rule is plfi. Oiui;ui ri^cv^r .ui ;.ii> i^ult of iLt. t^iemises at ohe time of the entry. But if deft, intentionally put the premises into a condition to in,1ure trespassers, plff. could probably recover. That is not a justifiable method of deterring trespassers. Probably the land cv/ner is under a duty not to ch*ir.ge things after the trespasser is on his land so as to make it more dangerous. LOUISVILI.P; & N.R.CO. v. HURTv p. 257, Ky., 1P90. Action against R.R.Co. for in.iury alleged to have been caused by company's neglect in running its train. Plff., a boy of 11, climbed on a freight car. An engine, with cars attached, ran against ii so hard that plff. fell off and the wheels ran over his leg. H!iLD, that if plfi went on the car without knowledge or consent of deft, or any of the em- ployes and was injured, he cannot recover unless employes knew of '"^"? perilous position and failed to use due care to prevent the injury. Deft, did not knew and was not to bJame for not knowing that the boy was there. In 27 S. ft. Rep. 992,' Ky. 1394, passenger cars /leve left near the station and a boy was hurt in some way. The same court held that defts. ewere liable as under the circumstances, there was more probability of trespassers being there. If jeft. kncA's thai trespasser is on land he is under some obliga- ( ticn towards trespasser, but Question is, how much? ^s to this question there are three views. I. Owner is not liable for anything short of intentional harm. 2. Owner is liable for reckless or wanton conduct or gross negligence. ;^. '^v-t-i- liable for f-Tilure to 'i-^e or-iin' rv/ '^>.r- tcawards trespasser. ^ AHpl'fi: v.TWrPCHR'LL, p. ?59, Vermont,' 1S53. Action on the case to recover dainages y^hich plff. sustained by fall- ing of a staging erected for his own use. caused by deft, having remioved one of the staging poles. It appeared that the pole belcngelr to deft., plff, having taken it for use in the staging without permission; that 110. deft, removed il in piff's absence and without his knowledfis; that the accident resulted as a consequence. Guestion was whether deft, should have used due dili£;ence to elve plff. notice. H!<'LD,- that no such duty was imposed on him. His ri^hi to i-e^ove the pole was absolute. Plff. was unlajwfully in possession and had no right to use of pole. It was his own misfortune if he failed, to see that the staging was unsafe. This was a case of recaption of a chattel from aocther's land. The court' said there was no duty on the part of deft, to warn plff. of the removal of the support,. The case is irreconcilable with Phillips v. ■iipsrs. Deft's act was an affirmative 8nd not a negative one and Phil- lips v. '.'ilpers is probably better law for sffirn'ative sct.s than the princioal case. But the point would probably be decided differently in differeni jurisdictions. If & trespasser takes a dangerous horse and the owner sees him and fails to gise warning, the oivner is net liable. If the owner knew that a peculiar whistle would make the horse rear up and whistled, and the trespasser was injured,- the owner- would be liable. '"hich of these two cases is White v. ■'witchell niost like? PHILLIP: v. ;,1LPF'B3,' p. 262,- New York, 1^-. (ict.ion on the case to recover damages. Plff.,' 3 painter, fastened one of the ropes of his scaffold to the chimney of deft's house,- adjoining the one he was painting. Plff. in this action offered evidence to show that deft, untied the rope. Con- tended for deft, that he had a right to do so as the rope was t-ied tc the chimney without his perrrdssion. Non-suit. Appeal. HELD, t.hat that right ir:ust be exercised in such a nsanner as not tc betray a reckless disregard of the safety of others. Heft, was bound to exercise reasona- ble prudence, and tc do the work in such a way as to give notice to those who could be affected. Other"' '^-^^ -•'': '^^-^t , ■'■■=- i^'--' :Ti'--^t b^- lawful would become unlawful. The deft, here loosened the rope in such ?. way that it amounted to setting a trap for trespasser. He ought to have loosened it in such a way as tc make clear tc the trespasser what was done or notify hini of its being loosened. This is a case where a wrongdoer, by his wrong, im- posed a greater duty upon another than would otherwise rest upon him. Prof, ^aiith agrees viith this case rather than the preceding one. MAYNARC V. BOSTON i MAIN? R.R., p. 263, ;^ass., 1S74. i'ort for killing of a horse by loconotive. i^diidtted that, the horse ..^.. trespassing on the track. Judge charged that deft, was liable if by due care the injury could have been avoided. HRIiD, t.hat/this was wrong, it being a statenient of duty toward a horse rightfully on the track. But as the horse was a trespasser, deft, was not liable for anything short of reckless and wanton misccnduct. It is tc bs presumed that deft, saw horse; court held him liable on- ly if he was reckless or want,on after he saw horse. FM::,-s v. nORTH'^RN pac. R.P.Co., p. 265, Minn.. 1SS7. Action for running upon and killing piff's horse. '^he horse was waSv ill slrayine wront^fuiiy in the hieh'/zay, and ran upon the track at i crossing, in front of the train. Deft, requested oourt to charge that plff. can- not recover unless it appear that deft's servants were negligencfe after discovering the peril of the horse. '^ourt rei^used. Appeal. Hfi^LD, that the charge should have been Riven. Horse being wrongfully in the highway, deft's srv.^iservants were net bound t^ look out for it before they saw it. '/ihen they perceived the aninial/'s danger, a duty arose to- X'.vard plff., and not until then. Tf they failed in that duty of car§, they are liable, otherwise not. The horse was trespassing on the highway, The court, neld that, deft not bound to anticipate that trespassing animals ?/culd be there, and therefore would be under no duty to look out for such animals, but deft's duty was merely not to injure the horse after seeing it, if it could avci doing so. i he court, says there is a duty tc look ahead but this is due to anirrials rightfully on the track. Strong,.), in Brown v. HuMell , .. 36, Penn., 1S63. Intruders upon railroad tracks are rvrongdoers. R.R. is not obliged tc take precautions aganst possible injury to intruders. Cuty of care toward a person not ciowing where it is rendered necessary only by his own wrongful act.. No iratter how great may be the danger of trespassing, the standard of duty in Lhe use of one's property is not elevated or de- pressed by a varying risk of unlawful intrusions upon his rights. Case goes to an extreme. ''xtrerre application of iiaxirii that law presuiTies that every man will do his duty. It lays down the rule that t railroad is never pound tc look cut for trespassers. SOUf'H & ^ La. R.R.OQ. v. DONOVAN, p. 2S8, Ala., 1887. 3on!eville,J. Plea bad for failing tc aver that deft.'s servants in charge of train used proper diligence in keeping a look-out for obstruc- oicns on trie track, including plff's son who was injured. The train v/a was going through a large city at a rate prohibited by city ordinance. Under these circunstances it was the duty of persons in charge to keep a vigilant outlook even for trespassers, end failure to do so was negli- gence. CAHRING^ON v. LCIJI^VILL^. ;. ^.r...... p. ?c^, fia., 1S89. nOBierville,'-]; No duty on engineer, in the absence of special rea- sons, to keep a vigilant look-out for trespassers. Note to the last two cases. Scirerville.J. iriakes a distinction between populous and non-populous territory. He has in niind "Cae "Oare under the Circumstances." Query,- as to whether he should not have left the question of care tc the jury. -ee next case. CTMOINNA^'T ^c. R.R. Co., v. ^'J/ITH. Ohio, 1871. .Action figainst railroad to recover daiiages for killing of horses through alleged negligence of deft's servants. The horses had escaped from deft's enclosure upon the track. Judge charged, that, the para- iiiount duty of those in charge of train was the protection of property snd passengers on beard. But t^^-^^- are bound also to use ordinary care 112. Lo look ouL iO[- tresuiii^aisrs on the track. Question is, considerinsi their paramount duty towards passengers and bagi^age, would ordinary prudent aien, in charge of the train, in the exercise of ordinary care, have avoided the accident. Ooinpare Maynard's case, ante 263. Higher court n:eans to say that, the duty where engineer sees trespassing animal on track is to use or- dinary care under the circumstances. Better than Mass. case. Putting train behind schedule time by stopping for every slight ob- struction would endanger lives of passengers by deranging time table. 3ourt does not lay down proposition like Fa. case that engineer is not bound to look ahead, but holds that he may be held liable for not looking ahead even when track is fenced. Question of care under the circumstances. Case is contra to Palmer's case, ante ?65. No duty to ensure safety of trespasser when his presence is known but ownei" of land is liable for injuries inflicted by lack of ordinary care, Ne can eject trespasser using reasonable force. '.'.here land owner harms trespasser in a way that would be negligent if he knew trespasser were ther?, liability is question of cir cumstance as, difference between obligation of engineer of R.R. and driver of wa- gon along public highway. Engineer may have paramount duty to his pas- sengers. In great majority of cases land owner is not obliged to look out for trespassers, but there may be cases where trespassing is so con mon that he may be under duty. Conflict of authority. Seems to be question for jury whether under the circumstances land owner should net, have looked for tetrespassers. ^*hy is not a trespass contributory negligence? Because a trespasser is not necessarily careless. 1 Sherman ^ Redfield on Negli- gence nh M., sec. 97-8. FROST- v. '^lASTFRN R.R.. p. 272, N.H., 1S96. Case for personal injuries caused by alleged negligence of defts. in not oroperly guarding and securing a turn table. Plff. was seven years old, went on deft's land to the turn table which had been set in motion by older boys, and was injured. It was claimed that defts. were negli- gent in the construction and condition of the turn table. HELD, that they owed no duty to plff. to keep the turn table in good condition. h a trespasser he took upon himself the risk of danger from the condition of the premises. 'To recover, he would have to show that the injury was wantonly inflicted or that owner, being present, might have prevented the injury by use of due care after discovering the danger. No doubt thatadult person cannot recover. So many cases have oc- curred throughout that it is clear that such turn table is an attraction to small children. Court held that deft, had something on its own land, at a considerable distance from highway, and used that something in the ordinary way. in some states a child cannot recover, in more the child can recov- er. 1.6'! Mass. ■ 349 and 145 N.Y. 30 are in accord with the principal case. 113. KRAKf.^v. MILWAUKEE & ST. PAUL RY. 00. , p. ?7. Vinn., 1875. Action brou£;ht by a child of seven to recover for injuries received .•■hile pla^^int^ upon a turn table of deft. Complaint stated that turn table was Situated in a public place, unguarded and in no way protected so that children could not turn it around; that the same was very at- tractive to Children, as deft, knew; that in conseQuence of deft's neg- ligence in not fastening it, plff. was injured, the turn table being set in motion by other children. Judgment for deft. Appeal. HELD, that Dlff . occupied a different position from that of a mere voluntary tres- passer. Plff. was induced to enter the premises by the temptation of an attractive plaything, and to a child of tender years that is the same as an express invitation to an adult. Deft, knowing all the facts,' hav- ing allured children into danger, was bound to use care to protect then; from it. Here the turn table was in an open place belonging to the R.R. Co. The court held fs^e p. 277) contra to the preceding case. The great weight of authority is with this case, but there is a conflict of author- ity on the point. The probability of seriousness of harm is infinitely less than with an apple tree with rotten branches, which is alluring to children, than in the case of a turn table, so deft, would not be held. In 39 N.E.Hep. 484, a land owner was held liable in a case where a child was drowned in an unguarded excavation filled with water and float- ing plank. 100 Penn. State 144 contra. 159 l^ass. 233 follows Frost v. The Railroad. In 21 S.K.Rep. 1062 a case of a ladder against a car, the company wa was held not liable. In 28 S.>**.Hep. 1089,. a child jumped on a movingtrain and the rail- road was held not liable. In 32 Minn. 133 and 23 Kansas 147 a car was standing on an incline and the brakes were set. A child loosened the brakes, the car started and 8 boy was injured. Held, R.R. was not liable. In 27 Pac. Rep. 389, a heavy hand car was beside the track; boys put it on the track and one got hurt. HU'LD, R.R. net liable. In 91 Cala. 295 where there was an older boy present who knew bet- ter, the principle of Lane v, Atlantic Works, p. 80 of these cases, was applied. In 59 M.W.R. 37 a trespassing child was injured by a land owner chopping wood. HELD, wood chopper net liable for net warning child who is injured without negligence of chopper. In 39 Minn. 144 and 45 Minn. 233 turn table cases, the h.h. was heid only bound to use ordinary care. The court held that the R.R. was not bound to secure the turn table so that it could not be unfastened. It added this instruction to the instruction given in the Keffe case. In Minn, therefore the R.R. Co. is not an insurer In such cases but is only bound to use ordinary care simply bound lo fasten turn table in ordinary fashion. The doctrine of the Keffe case is therefore limited; to make deft. \ 114. liable there must be reason to believe first, that the dangerous object is likely to attract children; second, that it is likely to result in substantial harm to, them . (Prof ..Smith fe^ls confident that these two limitations ipust bo/ applied to the' Keffe doctrine.) thirdly, deft, is hot liable where h,ls land is left , in its natural condition, 1 Beven 2nd ^ ^d., 109, Note 1; fourthly . deft, is not liable if the child knew the ganger and knew he had no right to go therfe; fifthly, deft, is not lia- ble if the child has been warned of the da|iger or forbidden to go on the land, cfrovided the child is old enough to understand and remember the warning or prohibition The authorities are not so clear on this. In 79 Texas 356 the court held that the R.R.Co. was not exonerated where older boys set the turn table in motion, their intervention did not break the causal connection. SUCTION III. Puty of Oare towards Licensee. HOUNSLLL V. smn, p. 279, 7 ::om. Bench Reports, Ivew Series, 731, ISSO. Declaration alleged that defts. were seized of a certain wat waste land upon which was a quarry; that this land was unenclosed and that all persons having occasion to cross it had been accustomed to do so without hindrance and with the permission of the owners; that the quarry was dangerous to persons who might accidentally stray, but defts. negli- gently left it unguarded, whereby plff. was injured. Demurrer, HELD,' that if one accepted a tacit permission to cross land, such as that in this case, he accepts it st his peril. Owner of the land is not boun: to guard him from dangers of which he is unaware. The passing over deft's land had gone so far that until deft, gave notice, he could not prohibit the crossing of his land. Plff. by rea- Plff. claimed to recover on the ground of being a licensee; he is such only by reason of deft's not objecting. The case holds that the owner of land is under no more obligation to keep his land i] safe condi tion for licensees than for trespassers. '^•SARCON V. THOMPSON, p. 2S1, Mass. 1889. Action to recover for injuries caused by^falling into a hole dug by deft, on his land and that of a neighbor. Plff. was a bare licensee, if not a trespasser, and walkine along in the night fell into the hole. HF;LD, that she could not recover. A bars licensfe, to be sure, has a right not to have force negligently brought to bear upon him, but as a general rule he goes upon the i - n = --it his own risk ■-^"'■■' r^ust avoid the dangers at his peril. In 38 N.E.f?. 187 deft, by his own act, caused additional danger of which plff. had no notice. Plff. recovered. The ruling on page 282 that "an open hole, which is not concealed otherwise than by the darkness of night, is a danger which a licensee must avoid at his peril" is not true unless the danger is of long stand- ing. i 115. GAUTRCT V. B3ERT0N. p. 282. Law Reports, 2 Coninion Pleas, 371, 18S7. Declaration that deft, was possessed of a close of land, a canal, a^nd bridge over it, which land and bridge persons passing along that way vj/e re allowed to us3' by deft.; tjiat deft., knowing the premises, kept the ridfe'e in such a negligent state of repair, that plff's intestate, alking over it, fell and was killed. Den-iurrer. HELD, that deft, was guilty of no breach of duty toward plff. The bridge was not in the nature of a trap. The persons who used it did so at their peril as far as its state of repair was concerned. Declaration does net even al- lege that deceased was unacquainted with the state of the bridge, or that it was not in same condition when permission was first given. No allegation that danger was not apparent nor that it was not known to deceased, nor that danger being one not readily apparent to passers, //as known to deft. 3o the case is like Hounsell v. Sn-ith. Plff. of course failed on his declaration. CAMP55LL V. BOYD, p. 2S8. No. Car., 188H. Deft, was owner of a mill on a certain stream. Along the stream on each side, two miles froni it, ran parallel roads. Deft, opened a con- '■ necting way, constructing a bridge over the stream. This way was opened^ mainly for convenience of deft, and his associates, but it was also used ^ by the public with knowledge of deft, and without objection. Through defective condition of bridge, plff. was injured. H'iLD. that acquies- cence of deft, in use of bridge by public may be considered as an implied invitation to use it. Hence deft, owed a duty to the public whom he in- vited to keep the bridge in a safe condition. The paragraph on p. 288 beginning with "the law does noL tolerate," is not true. Deft, is bound to give notice of concealed dangers known to him, but not of apparent, dangers, or dangers unknown to him. The court laid great, stress on the plff's having been invited. The deft, knew of the defect, the defect vyas concealed, and there was ■ nothing to put passer-by on his guard, and deft, had an opportunity to warn plff. Hence deft, was liable. In 28 M.F..Rep. 187 a barb wire fence was stretched across a way which the public had used by license of the owner. HRLD,' that the land o.vner was obliged to giee some reasonable notice of the revocation- obliged to give notice of a change making the premies more danF,erous. GALLAGHER v. HUMPHREY, p. 288,' 6 Law Times Report, New Series, e84, 186?. Declaration that deft,, was possessed of a crane fixed in a certain passageway, along which plff. and others were permitted to pass; that the crane was so negligently managed by deft's servants, that a large weight fell on plff while he was lawfully passing along the way, de doing the damage complained of. HJLD, that a permission like this does not impose on owner a duty to fence off dangers, etc.; it is merely a permission to use the way as it is. But it does impose a duty on 116. hini not to be actively negligent toward passers-by, and if hs is so neg- ligent, he is liaole. A licensee only has a right to use the premises as they are at the time. The duty to a licensee after he gets upon the land is similar to the duty towarfls a trespasser after he gets on land, as regards deft's conduct. Although nut under obligation to keep land in condition to be trespassed upon, yet after .trespasser gets there, he is under obligatio not to hurt him by act of negligence. Pf^UM.ME'R V. DILL, p. 292,. Mass., 1892. Actioi)' to recover damages for injuries sustained while leaving deft's building, through deft's negligence in not keeping part cf build- ing safe,/ Plff. did not so there to transact business with any occu- pant of tiie building, but merely for hr own convenience to enquire about matters which concerned herself alone. H^iLD, that owner's duty cf care in keeping building safe extends to those who come there by his invita- tion, express or implied, but not to those who come for their own con- venience, or as mere licensees. Implied invitation extends to these on- ly who come for a purpose connected with business of occupant. Plff. here does not come under that head, but was mere licensee. Plff. went for her own convenience, and not on business for deft. It is not enough that it is business cf plff. alone, but it must be the business which is cr might be of pecuniary interest tc occupant, in or- der to make plff.- a business visitor. Read this case after Indermanor V. Dames, post next. Authorities both ways as to whether person seeking work on premises is a business visitor; 101 N.Y. S91 and also reported in 5^ Amer. Rep. 718. L.R.2 C.P.D.308. Beggar not so. As to peddlars, drum.miers, book agents, etc., they would probably not be held to have right of business visitors unless their presence was expected by deft,; very doubtful question. Mote G, Clerk ?• Lindsell on T'orts, 372, 374, criticises rule that occupant, as to business visitors, must keep premise in reasonable safe condition; warning of danger may supply such care. S^JCTION IV. Duty of Care towards Invited Persons. INDI'JHMAUSR v. DAMIi.S, p. 296, Law Reports, 1 Common Pleas. 27 '1, 1856. Action to recover damages for injury sustained through alleged neg- ligence of deft, and his servants. Plff. was a gas fitter in deft's sugar refinery on business, when, it being dark, he fell down through an unguarded opening 30 feet and was severely injured. The opening was a shaft four feet square communicating from the basement, to the several floors of the building, necessary for defts' business, ^nd necessarily unfenced when in use. Contended for deft, that he was not obliged to fence the shaft at all. HRLD, that plff., being in the building on business which concerned the occupier,- was there upon his implied invita- tion,' and was not a mere licensee. Toward him occupier owes a duty to 117. use reasonable care to prevent his being injured by some unusual clanger on the premises, such as the unfenced shaft here. The business for which piff. was present was for advantage of both parties, hence he is said to have been there by implied invitation. iN'vitation as used technically does not mean invitation as used or-' dinarily; business visitors would be better. Outy towards these is greater than that to licensee; ncL only to warn of concealed dangers, V but to take reasonable care to ascertain whether there are concealed dan- gers. Business visitor is one who cones in-iplisdly on invitation of ow- j ner on business whdoh is or might be of pecuniary interest to owner. [licenses is used sometimes to mean that express permission is given, and at other tin;es to nean license by sufference. One who goes upon land without, ownerSs permission, takes risk of apparent, (not hidden) dangers. Owner owes duty to warn licensee of concealed dangers known to owner. Occupant and licensor, or owner, is not liable for failibg tc take ordinary care to ascertain whether there is danger or not. Althoug he is bound to give notice of such dangers when he has such knowledge, ; he is not bound to acquire such knowledge for the benefit of the licensee], See Olerk ^/Lindsell on Torts 37S.374. SOUTHCOTi^J & 3TANLti:Y.- p. ?.03. 1 Hurlstone & Nomman, 2-47, 1S55. L'sclaration that deft, was possessed of a hotel, into which be had invited plff. as a visitor; that there was a glass door which plff. had to cpen in leaving, and which through negligence of deft, was then in such insecure and dangerous state that when plff. opened it a large piece of glass fell on hini and injured him. Demurrer. HFLD, that the rule which applies to servants applies also tc visitors in a house. Servant undertakes to run all the ordinary risks of service, including those arising from negligence of fellow servants. Similarly visitosv-on entering a house, takes his chances with regard tc neeliiJHnt omissions of master or his servants. On demurrer tc declaration,- which stated that plff. was there as a visitor', not as a paying guest. No allegation that deft, knew of defec- tion in door. Oase holds that person invited in ordinary sense, of the word, not as a business visitor, has no more right than a licensee. Strong argument against use of word "invited." This case is law in lingland, but has been strongly tutacked. DAVI- V. CliNTRAL CGNGRfcSATIONAL SOOIKTY, {«ass.,.lS30 (p. 30^.) Fort for injuries occasioned by a fall while passing out from . . deit's - .ohurch. Plff. had been attending a conference at, the church in response to a general invitation which had been sent tc her church and others, and was injured while coming out,,' through alleged negligence of deft, in having premises in a dangerous condition. A'erdict directed for deft. HiiiLD, that fact, that plff. was there', not by mere license, but by invitation, imposed on deft, t^e duty to keep the premises in a safe condition, notwithstanding that no pecuniary benefit was expected by deft. Question whether or not. deft, exercised reasonable care shouia have been left to the jury. '^le;': trial ordered. 118. Business visitor is confined to persons who are invited on what is or may be the pecuniary interest of occupant. Court hers lays ^reat stress on the deft's invitation, but decision can be supported on the ground that walk was not properly guarded and lighted so that under the circumstances deft, ndght have been liable to a licensee. Colt probably would hape ae'cided Southcote v. Stanley contra to Fnglish court, which case has been severely criticised in '^ingland, because gusst does not stand in the same relation as a servant. See Pollock. Tn (J.S., ques- tion is open, but tendency is to differ from S.V.S. S;\E!lNY v. OLD COLONY. &c. R.R.Co., p. 308.- h'ass. . 1865. Tort for personal injuries sustained by being run over by deft's cars. Flff . was crossing the railroaa on a private way, which, by per- mission of def ts. , had been used by the public for several years, and at which they had stationed a flegman. Latter made a signal that, there was ti!i:e to cross, but was struck by a car. Contended for defts. that they v/ere notliable as plff's use of the crossing by licese was at his ovv own risk. Judge charged,' that defts. were not bound to keep a flagman there, but as they did,, they were responsible tor his negligence. Ver- dict for plff. HfiLD,' that the charge was correct. Were passive ac- quiescence by an owner in a certain use of his land by others involves no liability, but if he expressly or in.pl iedly induces theai to enter on his prsfPises, hs beccjries bound to see t.hat they are reasonably safe. Facts of this case show that the license to use the crossing had been en- joyed under such circufustancds as to an:ount to an inducement to public to use it as a highway. By keeping a flagrrian there they became liable for his negligence. Judgment fon the verdict. ■Phis case is often citea as deciding that aefts. were bouna iz Keepv crossing in order, but it held only that if flagman was there,- he must not be actively negligent. Railroad gave public to understand that it was safe to cross by keeping a flagman h..here to give signal. Case is clearly right in itself; even though plff. were only a licensee, if pub- lic ivas only a licensee it would have .right to be protected against or warned of hidden dangers.' It seems as if there was greater right for public against railroad where the latter has fitted up crossing so that public may pass more easily. Argument vs. this in Thorndyk's argument, in 155 Mass. 472; 22 S.£.R. 551; argumepl" vs. Thorndyke in 50 N.i\.R.669. /^s to liability of land owner to persons who are in exercise of right al- though not on inbitation,' as sheriff serving writ. Courts probably hold that it is at least as high as that towards licensee. Occupant could hardly be held liable if he had no reason to suppose anybody would come in. 34 N.&.R. 1113, court, held fireman was no belter off than a licen- see. 32 M.!^;.R. 188, 111.' 185 .Mass. 116., 138 Mass. 315,- 33 N.Y. Super- ior Ct. 133, seem m.ore inclined to favor plff- ^^s to premises in pos- session of tenant, where third person is hurt by defect, as to when plff. should sue tenant and when landlord, see Bev. on Negli. 1st Hd ^"^074, 1075 2 S.& R. on Neg. 4th Sd., sees. 708-to 71:^ , j^ Firemen only licensee: 29 Atl. R. 6; d All. K. 552. '"""^^ -vN 119. Duty of land owner to refrain from harming by negligence after pres-J snce is known is the same with regard to trespassers, licensees, and bus- iness visitors. As to defects in the premises his duty is more difficult to state. How is it as to trespassers? Practically no duty. /'S to licensees duty is to warn him of concealed dangers known to occupant, but no duty to ascertain dangers. Bound to give licensee benefit of his knowledge, but not bound to acquire more knowledge. To business visitor there is additional duty to use due care in discovering dangers and giving warn- ing. But this is not statement ordinarily made, which is,^ that duty is to keep premises in reasonably safe condition for business visitors. C Sr I. 371, n.c. Often hard to determine who are business visitors: 101 ij.Y. 391; L.R. ? 3. . . 108, contrary cases as to man entering to seek employment. ^^hen it is once determined that a li.an is s business visi- tor there is no doubt as to duty owed him. i'.here there is no representation that a railroad crossing is a high- way, duty should be only that toward licensee. You can find any state- ment you want on this point in the books. Sweeny case all right as there was a representation at the moment that the road •I^ O O :J I c; :^HAPTKR VIII. HJXThA HAZAhUUUt; LJ^uUpAflONS. - ACTING AT bl'hil.,. - DtJIV 0^ INSURING SAFETY. FLETCHER v. RYLANDS, p. 316. "^ixchequer. 1885. Action to recover damages for an injury caused to plff's mines by watpr flowing into them from a reservoir which deft, had constructed. Deft,, had employed competent persons to construct the reservoir to supply their mill. Neither deft, nor the workmen knew that coal had been worked under or near the site of the reservoir, but. as a matter of fact there was old coal workings under the reservoir, communicating by means of other old workings with plff's mines. In the course of excavating for the foundation of reservoir shaft,s filled with rubbish were unearthed but iL was not known that- they led down to coal workings. Defts. were in no way negligent,,, but the persons employed by them did not use- rea- sonable and proper care with respect to the shafts so discovered, i'rhen the reservoir was partly filled, to che of the shafts gave way, water poured down through the old workings, into plff's mine, doing serious damage. HHiLD, in H-xchequer, that plff . could not recover, as defts. werenot negligent. Reversed in iijx. Cijamb. where it was HELD, that plff could recover, on the ground that the person who for h.is own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at. his peril, and if it, escapes, must make good the damage done. Such things as cattle, water, filth, stenches. This judgment was affirmed in t,he House of Lords, Lord Cairns drawing a distinction between a natural and a non-natural use of land, holding the land owner absolutely liable for damage caused by lat- ter . 120. J ho a!3jQ['iL.y ci me rxchequer said practically that deft, was In no fault, and that, if he is not in fault, he is not liable. It is true that there was no personal fault on the part of deft., but the persons he employed were negligent with reference to the shafts discovered in not providing for the sufficiency of the reservoir to bear the pressure of the water, which when filled it would have to bear. Frof . Sirdth thinks the case ought to have been decided on this ground,' that deft, was responsible for the negligence of these persons even though they were in- dependent contractors. The case seems to be v;rong on this point. Bish. Non-Oon. Law, sec. 829, note. 125 U.ass. 240. The nature of the duty was such that deft, could not exonerate himself by the employment of an independent contractor. The courts above ignored this point. They assumed that there was no negligence on deft's part, and tjien went on to decide the case in the absence of negligence. The st.udent should commit to memory the sentence st the top of p. 333, it is the ratio decidendi of the case. Next in importance to this is Cairns' statement about natural and non-natural user of land. 3ranworth goes simply on the ground that plff. has been damaged and not on the question of lack of care by deft. This is the oldest, of the three theories in the case. Cranworth's theory, in the first place, cannot possibly stand. Cranworth's theory would simply amount to trans- ferring the hardship from one to the other. It. imposes the entire loss on the faultless deft., merely because he is the innocent instrument through which the damage occurred. But it might be suggested in favor of the decision in- this case, that as deft, had the profits of the res- ervoir, he should pay the damages out of them. For a criticism of the maxini: sic utere ^.-c. See 9 Harv. Law Rev. 14 to 17. By nat.ural and non-natural use Lord Cairns seenis— to ivjve had in mind a distinction between the use of something already on tfi^ land and some- thing not on the land. Cairns' distinction is not n.aint.airfable; it is crit.icized on p. 53 of the Cases. Cairns' view as tp doing it at deft'b peril is criticized in Markby's '''le. of Law 3rd ^^'d . , sec. 6^3 . See also 33 A.tl. Hep. 286 bottom of 289. An important case is Coal Co. v. Pans- derson, 113 Penn. state 126. contra is 33 ni. Rep. 285, As to the falling of a house being prima facie evidence see 57 N.Y. 567, 3.G.15 Am. Hep. 530; L.R. 5 Q.B. 411, S.C.L.R. 6 0.8.759; 40 Pac. Rep. 1020, autjiorities. 41 N.F.R. 61. ^'oc a discussion of the Sander- son case, supra, by Pepper see 31 Am. Law Register n.s.38 to 44.' For t.he history of that case by Guest see 53 Am. Law Reg. n^-S.p. 1 and at, p. 97. 145 Penn. State 324 is distinguished frcfli the Saj^ers'on cas^t as here the owner was bringing something on the land f rqjjf a distanc3( In Nauck V. Co. 153 Penn. State 365, S.G. 34 Am. Stat.e F(ep. 710 th/oil was not taken out on the land through which it was carried. L.K. 1 Indian appeal, 364, J.^adras R.R. v. Zemindar, supports prin- cipal case because the tanks are absolutely necessary for development of 121. India; decision of .judges in India is more important than judges in I'.ng- land. 41 Pac. R. (Mont.) 431 is like Indian case, but here ditplies were niade to carry water through the country for irrigating and ditch gave way without, negligence; court decided like Indian case. Sinsilar case in 3aia. As to saying that deft, is liable in tjiese cases because he ccniniitt- ed a nuisance - L.R. 2 Q.B. 247 says it prolongs the dispute because nuisance may mean something which is not actionable and using it here does not advance the reasoning at ail; simply a circle - it is a nui- sance because it is actionable and it is actionable because it is a nuisance. Also. Ccoley on T'-, 2 Ed. 672; -3 Blk. 215; 1 Harv. Law Rev.- 123, 125, Langdell. Courts of every country will probably hold that there are some acts which if done in that community are extra hazardous and deft. must, be an insurer as to such acts. 8ut the tisst. as to what is extra hazardous varies in the same community at different dates, as Fulton would proba- bly have been held liable if his first steam boat had burst and caused injury, though Losee case in N.Y. is contra now when steam is so gener- ally used. See Pollock on Law of Fraud in British India. Thoughts ol Pascal, London Ed. 1883, p. SI is wrong; facts are different, in differ- ent countries, as keeping an elephant in England and the same act in In- dia. Pollock on T. 2 Ed. 420, 421,- 426; magnitude of danger and diffi- culty of proving actual negligence as the specific cause of the harm. Holmes on Com Law, 154: The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community. Innes on Torts: ?uch things as tigers, etc., however carefully kept, im- peril the rights of others because they cause danger to rights in the absence of a degree of care and prudence, the continual exercise of which cannot be expected. Degree of care necessary is so great that it cannot be expect.ed that, people will continually use that care, therefore thej ought to be held to be absolute insurers. £xperim.ents and new msthocs will largely be held to be at the ri^k of the experimenter; courts will also be very slow to hold doctrine of insurance as belonging t,o user cf any kind which is common or necessary or highly beneficial. Blackburn's test at tpp of page 333; improved by insert.ing "likely to escape" after word "Anything." If we adopt Blackburn's test.,' we will hold owner of land liable for many things necessarily done upon land. As to the analogies mentioned in case, some of them are excep- tional, p. 353. Blackburn and Eramwell in their analogies have taken specific cases and ignored other specific cases which are not so ex- ceptional but more ample in their application. Analogies in support of cases are, trespasses by cat.tle and liability for fire. As to carriers and innkeepers, great, liability, nicve than ordinarily, is imposed upoi. them because they have a chance to charge extra price, knowing their extra liability, and that, the public has to trust people in such public employments. As to alkali, it is answered in Brown's Case following. 1??. As to filth, it is the same think as principal case over again. ?.hen a ;iian builds a d&^, his precise purpose is to keep the water back and he can ascertain h(3i\v much land will be covered by the water; complaint is that he persisj,'ed in holding back water, although he knew it flooded the land. C^'cley on T. , 2 Ed. 677 to 6S0, N.S. But as to water over- flowins land/below by bursting dair., it is not so. Jn latter case, deft, is also a Ipser by the accident, while in former case he overflows land for his gafn. As to selling poisonous articles without proper label, it is clearly negligence. Oases of damage by blasting rocks - authori- ties are An conflict in U.S. Hay v. Cchoes Go. 2 N.M. 159; S.G. 51 Ani. Dec. 279i Beeth v. R.R. 140 N.Y. 237; S.G. 37 Am.- D. State Reports. 552; 9 Lewis /aui. R.R. ?■ Gorp. Gases, 92 with important note. As to analogies in general, see 2 Austin on Jur. 3 Fd. 655, 65't , 1030 to 1036. ' As/ to authori ,y of F. v. R., subsequent cases in fingland try to dis- tinguish it. Pollock's Lectures on Law of Fraud in India, p. 53, 54; it is followed only in the letter and not in the spirit. 5 Harv. L.R. 186, N.l. In U.S. majority of the states have not decided the point. Gahill V. Eastman, 18 Minn. 384,- inclines towards principal case. Mass. seems to accord. N.J., N.H. and N.'Y. are strongly contra. Two tendencies now; first, to extend liability for negligence, i.e., for consequences of nesligence in fact; second, to restrict liability in absence of negligence or wrongful intention. If Fletcher v. Ry lands is to be adopted at all. Prof, 'indih thinks Blackburn's rule (see p. 333) should read, anything likely to escape and do mischief rather than as it does. But he doesn't agree with it even then. NIGHOLS V. MARSLAND-,. p. 343, Exchequer, 1873. Action by surveyor for Gounty of Ghester, for damage caused to bridges by bursting of dams on deft's land, A stream ran through deft's land, he dammed it,' and made three pools, the water ran on,^ under plff s bridges. A more terrific thunder storn. than had occurred for years caused stream to overflow, to back down embankment and to wreck bridges. •Jury found that the accident was caused by vis major; that the rainfall was most excessive and there was no negligence. H'''LD, in Exchequer (and affirmed in Fxch. Gh.) that plff. could not recover, as the injury was the act of God. Differs from Fletcher v. Rylands in that there deft, did the injury directly, though in ignorance. Here deft, merely kept the water, which was set loose by another agent over which he had nc control. As in case of cth&r duties imposed by law, act of (Jbd or pub- lic enemy is an excuse. J"' Here the forces of nature which broke the dam were g^l^itation and an unusual storm. The form.er is a force constantly at work, the latter is one which no one would expect and forsee. Such forces of nature as one could not reasonably be expected to guard against are acts of Sod. This case establishes an exception to Hylands v. Fletcher where the loss is occasioned by an act of 3od. Under this rule the jury can practical- ly mitigate the rule in Hetcher v. Rylands whenever it seems too hard. 123 . ■•ee Pollock on Torts A'Snd ?d. 42S. 5 Harv. Law Rev. 186 note has some good remarks upon how Fletcher v. Sylands is treated /in England. BOX V. ..KIBB. p. 349,. p;xchequer, 1879. Action to recover damages caused by overflowing of deft's reser- voir. The rese/-voir was supplied with water fron^ a main drain, into which t.he surplus water passed again. The overflowing was caused by the emptying of' a large Quantity of water into the main drain above deft. fro.T; a reservoir belonging to a third party and an obstruction, unknown to defjt. in the main drain below cutlet of his reservoir. There was no negligence. H^LO, that deft, was not liable, as he was guiilty of no breach ,of duty which caused the injury, but latter arose from acts of third party, which deft, had no means of preventing. Rylands v. B'letcher is distinguishable, for here the water which did damage was not accumulated by deft, but has come from elsewhere and been added to what was properly and 'safely there. Judgir.ent for deft. At first glance this case would seem to come under Fletcher v. Ry- lands but instead establishes the principle that if the escape of the dangerous article can e ascribed to the wrongful act of a third party, the deft, is not liable. It is a recognized exception to Fletcher v. Rylands in iT.gland and would probably be follo'^ed in the U.S. If Flet- cher v. 'Rylands is correct, this exception ought not to aoply to a case where deft,, could reasonably foresee the wrongful act, but it is doubtful whether the court would actually hold a deft, liable in such a case. MARSHALL v. WELWOOD, p. 352. N. J... 1873. Suit for damages done to plff's property by the bursting of a boiler of 9 steam engine on adjoining land of deft. Judge charged that deft, was liable, irrespective of any question of negligence. Verdict for plff . .Votion for new trial. HSLD, that this charge, though supported by Fletcher v. Rylands is wrong. The judgment in that case extends tie rule applicable only to a few very exceptional cases, such as that of trespassing cattle, into a general principle. No foundation for the principle that a man is liable for damage caused by lawful acts done with care. There must be culpability. It was a question for the jury in this case whether there was any neglect on the part of deft. It is so held also in Losee v. Buchanan, 51 N.Y. ^75. BRO^N V. 30LLINS.. p. 357, N.H., 1873. Trespass to recover value of a stone lamp-post situated in front c: plff's place of business. Deft, was driving a pair of horses near a railroad crossing. The horses were frightened by an engine,' became unmanageable, and ran against the post in question, breaking it. Oeft.. was not negligent. HSLD, that the extension, in Fletcher v. Rylands, of the doctrine that in trespass damage, and not culpability, was the thing to be looked at, is contrary to principle and analogy. P'ault must be shown. A wan is not liable where, as in this case, superior force overpowers hin: and uses hini or his prooerty as an instrument of \2&. violence. A driver of horses is not liable for damages to real estate, done by them, if he loses control of th-n '.■ithout any negligence or fault on his part. This casi differs a good deal in facts from Fletcher v. Rylands but that case is considered .liuch in the cpinicn. This is one of the ablest opinions against that case. This and Marshall v. Aelwood should be stu- died carefully. They contain the chie^f anti F.v.R. arguments, K.v.R. has not been overruled in England and there is a tendency to fellow it in some states of this country. OHAFffiR IX. LIABILITY FOR FIRS OR fijXPLOSIViilS. OFAN V. Mccarty, p. 368, 9 victoria. 2 Upper Canada Q.B.,44S. Action on the case for negligently keeping fire which deft, had kindled on his own land, by reason whereof it spread to deft's land and did damage. Deft, used due care, but a high wind sprang up causing the damage.. It wa-. soughL to hold deft, to absolute liability. BJ;LD, that this is not one of the cases where a party is held liable regardless of negligence. Here deft, was engaged in doing a necessary act wit.h due care, when an accident was caused by act of GcJ . "c hold hirr^ lia- ble would be to depart iron settled principles. If we apply Fletcher v. R. deft, would have been responsible. but court holds that lighting the fire is indespensable; such acts are so corr,n;on and so necessary that deft, niust not be held liable. Law in ''ng- le.nd is unsettled but in U.S. it is well settled in accord with this case; that one who, without negligence, sets a fire on his .. premises for lawful purposes -and watches it with care after it is set, is not liable for damages caused by it in absence of negligence. American doctrine ss to fire applies to manufacturing and mechanical purposes. AouU probably also hold as to setting fires for amusement. BACHFLDIvR v. HFAGAN, p. 372, Maine, 1840. Action on the case to recover damages alleged to have been done to plff's land by deft's negligence in setting a fire on his own land and not carefully keeping it. Judge charged that burden of proof was on Dlff. to show negligence on part of deft. Verdict for deft. Excep- tions. HFLD, that charge was correct,. No absolute liability on one who sets a fire in his own field. Negligence is the gist of the action and plff .' must prove it. The instruction given in the last six lines p. 372 of the Cases is incorrect. Proof beyond a reasonable doubt is required only in cri.niinsl cases. In a civil action you only have to prove a balance of probabil- ity unless in some courts. Unless the facts shewed arson here, the court erred in saying that the plff. must prove beyond a reasonable doubt. Deft, is not liable without negligence and the burden is upon plff. to show that the deft, was neglicsnt. 125, BURROUGHS v. HOUSATONIC R.R. CO., p. 374, Conn.. 1842. Action on ths case to recover damages for plff's building burned by means kt a spark from locomotive of deft's. Judge charged that plff. could recover, irrespective of negligence on part of defts. HELD, that this w^^ wrong. If defts, were doing a lawful act in a careful lianner, they >/ere guilty of no wrong, and hence not liable. Negligence iiust be provedv to charge them. Court beloK; thought, this was an extra hazardous use of land and he must do it at his peril. But State had authorized deft, to do it care- fully and not negMgently. Effect of charter as protection is first, against indictment \for public nuisance if road is run in usual manner, and secondly, it S3'en:s to be regarded by weight of authority as pre- venting the courts from holding that this is an extra hazardous use. Legislature could not authorize railroad to run its engines carelessly and negligently. Jhere are statutes in some states which hold railroad company liable irrespective of negligence if fire is started by locomo- tive sparks which statutes are generally held constitutional. ^«here deft., is not an incorporated railriad, judge would probably allow a charge to jury that carriing fire around in Iccomitive was per se negligence. If there was a charter from Legislature, courts which adopt E.v.R. would not submit to jury whether it was negligence as a mat- ter of fact., to do precise thing that Legislature had permitted to be done. 186 Wass. 239; 155 Mass. 532. HS5G V. LICHT. p. 379, New York, 1S80. Action for injuries to plff's buildings caused by explosion of a powder magazine on deft's premises, Plff. contended that the powder magazine was a private nuisance for which deft,, was liable in damages, regardless of negligence. Judge charged that deft, was not liable unles negligent. HI^^LD, that this was wrong. If the powder magazine was in closi Gont.iguity with buildings, it would doubtless be illegal, and ow- ner would be liable for all damages done. Question should have been left to jury whether under the circumstances of locality, etc., deft. was chargeable with maintaining a private nuisance and so liable for damages resultj.ng. 3.3. below, 16 Hun 257 contains better statement of facts. Nuisanc per se is an actionable tort. Authorities somewhat in conflict but this is Smith's view; ons who manufactures dangerous explosives or who stores them in large quantities in such a locality or under such circum- stances as to cause reasonable fear to persons living in the vicinity, is liable, irrespective of negligence in the mode of manufacturing or in keeping, for all damages by explosion. Query, whether authorities might not hereafter justify us in adding: Unless ^ case of st.orage the magazine is located so as to endanger as few pers(|is and as little property as possible and yet be reasonably accessijble as a point of sup- ply and distribution. Taken from Trunkey, J. 91 Pa. St.. 251. Possi- bility of a great danger has the same effect, as probability of a less one "treasonable fear" supra, means whether person of average nerve ana cour- ' 128. aee would be put in fear. In the U.S. it is a question for tjie jury and the test is whether the owner was making a reasonfeble use of his land. The American law is well settled that if a aian is using fire on his own prendses for a lawful purpose, he is not liaols unless for negligence. Time, place etc. may show negligence, but there' must be negligence to make him liable. Some courts might apply the/ natural and non-natural user test, but generally in this country the above rule is applied with the qualification that deft, is using due care under the circumstances. It would make no difference whether the fire was for amusement or for business purposes. Cooley 2 iid. p. 700, but Frof. Smith would hold the deft, liable as the reasons for a contrary decision do not apply, the fire being unnecessary for amusement. OHAPTSR X. LIABILITY OF OWNER, OR KEEPER, OF ANIMALS. Section 1. Trespass by Animals on Land. .VEL.L3 V. HOmUs, p. 384, iM.Y., 1822. .Action to recover for damages caused by deft's horse trespassing in plff's field. Plea, no fence around the field. Demurrer. HKLD,. that every unwarrantable entry on another's land is s trespass, whether the land be enclosed or not. A person is equally answerable for the trespass of his cattle as of himself. At common law entry by cattle is the same as entry by owner. At common law there is a fiction that all land is enclosed. TONAWANDA R.R. v. MUNGER,- p. 38^, N.Y., 13'ia. In a case of trespass by deft's cattle on plff's land, it is imma- terial that deft, used ordinary care in taking care of them. Deft, is bound at his peril to keep his cattle at home. Rylands v. Fletcher doctrine applied to cattle. No defence that even extraordinary care was used to keep them out. NOYI^S V. OOLBY. p. 385, N.h., 1855. Trespass for breaking and entering close. It appeared that deft's cow was in a pasture, that one, Hezth, in getting his own cow, let out deft's and drove her along the road to a place about 200 feet from plff's land, whence she strayed and committed the trespass complained of. Contended for deft, that as he had done no wrong he could not be held liable merely on account of ownership, but action should have been against Heath. HELD, that owner is not liable when his cattle are driv- en on another's land by a third party without his knowledge. But here, as soon as Heath abandoned the cow, legal possession revested in deft. and he was answerable as for the other beasts in his custody, for any trespass. Had H. driven the ccv onto deft's land, deft, would not have been liable, but as soon as H. left the cow, she was restored to owner's possession. This latter is net true of all things, but is of cattle. 127. This latter is not true of ali things, but is of cattls. It is a hard case, but the weght of authority is with it. Black- stone seems to say that the grounl of the rule is negligence presumed by lavY. BROWN V. GIL?S, p. 337, i Carrineton & Payne 118,. 1325. Aation against deft, for breaking plff's close with dogs and tra.np- lins down the grass. It appeared that owner was walking along highway with the dog, when it jumped ever into plff's field. HRILD, that the dog jumping into the field without consent of owner was no trespass. It is difficult to restrain a dog or a cat and they do little dania- age, and so are allowed more liberty by custoir; than other animals are. These are the chief reascns for not holding the owner liable for trespass 45 Wis. 538, is contra to the principal case and in accord with Doyle v. Vance. If the dog was in the habit of committing such injury,' and ttie ow- ner was notified of that habit, he would be liable ss much as for the trespass of a horse or cow. Ames* Oases on Torts, p. 343. Rish. Non- Oon. Law 1233. Plff. afterwards introduced testimony to show that deft., on another occasion personally entered the close and therefore plff. obtained a verdict. H'ilLD, that no recovery could be had for entry by the dog with- out incitement by master. If dog accompanies master and does substan- tial damage, plff. could probably recover. Case is authority that in H.ngland owner of a dog was nkt liable for nominal damages by dog's en- try upon pplff's land. TILLR'TT V. WARD, p. 387, Q.B., 18S2. Action to recover for damage done to goods in plff's shop by deft's ox straying from the highway. He was being driven along by deft's ser- vants and no negligence was proved, HKLD, that where a man has cattle in a field he is liable absolutely for their trespasses, but where he is driving them along the highway he is not responsible, apart from negli- gence, for damage done by then upon the highv/ay or upon adjoining prop- erty . Old reason given for strict rule of common Issv to cattle was, tres- pass by a m.an's cattle was equivalent to a trespass by himself. But bet- ter: It is to cattle's owner's interest to have his cattle feed on other's land; if they stray, they generally do damage, and it is compar- atively easy to restrain them; they seldom get cut if properly taken care of, and it is very difficult to prove negligence. Rule here is correct. '''asy to restrain animals when in pasture, but m.ore difficult to restrain them from temporarily straying when driv- en along highway. Greater likelihood of doing substantial damage whert animal strays from owner's land to neighbor's of its onn accord* than where it is driven along highway, although in principal case the; damege happened to be great. i Owner of certain kind of animals is under an absolute duty,iirre- spective of negligence, tc prevent his animals from straying on another's .1- fv- ^ • land, except when slraying from the highway vihile bein^ iawiuliy arivsn thereon. , While they are so lawfully driven on highway, he is only bound to take car^ that they do not stray and is liable if they stray through negligence. \ 31erk & Lindsell on Torts, p. 3. .As to analogy in Fletch- er V. .R. brea>l\ing out of. cattle is more corrimon, but breaking away of reservoir wili\cause iruch more damage; one reason for rule in o/^ttle cases is the grWt chance for false testimony, which would noy be so great in reservoir case. In reservoir case owner has an intirest in his reservoir not breaking away, but in cattle cases owner hate an inter- est in their feeding on another's land. Also, remedy in impounding; it is almost valueless if negligence has to be proved. In U.S. also rule as to trespassing cattle has been abrogated. A'AGNFIR V. C1S3ELL. p. 390, Iowa, 1S56. Replevin for cattle. Ceft. answered that the cattle were trespass- ing upon his unenclosed land and he distrained them. Demurrer. HELD, that at comm.on law owner of land could destrain any cattle found tres- passing, and did not have to fence against them. But only so much of the comm.on law has been adopted in this state as is applicable to the changed conditions of life here. This particular principle is ill adapted to a new country. Long usage to the contrary and a series of statutes on kindred subjects show that it has never been adopted. CIrops are universally enclosed and cattle allowed to run at large. Universal understanding of the community had great weight. Old common law rule is rejected generally throughout the southand west. This case shoBS that, it has been rejected so far that the land owner can- not, impound. The owner of cat.tle is not liable if his cattle go on another's land in that part of the country, but he has no right to have his cattle there on another's land. The land owner can keep them off by any means he chooses short of injuring the cattle. UNION FAOI!?IO R.R. v. ROLLIN?. p. 395, Kansas, 1859. Court, below ruled that cattle running at large upon the unenclosed lands..of another are not trespassers; that owners have a right, to aljow them to run at large for purposes of grazing. This is wrong, Comnon law has not been repealed in this state. Statutes modify it somewhat as to damages recoverable, and probably make it contributory negligerct to fail to haoe a proper fence. But while they allow cattle to run at large upon the public lands, the legislature could not give the right to go on private property. This case holds that common law has been changed so far that if B's land is enclosed and .A''s cattle go there, B has a right to drive them off but has no right of action. As to change in common law see 133 U.S. 320, holding that as to public land of U.S. there is an implied license that they shall be free to the use of the people while they -ere not enclosed. ROSSSLL V. COTTON., p. 397, Penn., 1S5S. Trespass to recover damages occasioned by deft's cattle breaking 129. into piiT's wheat field and destroying wheat. Il appeared that the cattle at. the time were in the possession oi' one Hill, as agister. HKLD,' that responsibility for trespass of catLle is not a question of neelij^ence. fcut. it, is a responsibility which rests, not upon ownership, but upon posse^\^ion and use, which give control. If owner is liable in this acase at all, it is in an action on the case, founded on bailee's mismanagement. Test here is 'that the person who has the right of control for time being is the person liable for trespassing cattle. If carried out, would hold that owner was not liable for negligence of the agister, if owner has used due care in sslection of agister. 6^ Ills. 307; 70 Ills. BLAISDSLL v. STONfc, p. 400, N.H., 1881. Trespass qu. cl. for damage done by deft's sheep straying into plff s land from their pasture. Ceft. had let his farm and stock to his son, and latter was in possession and control. HELD, that plff. is entitled to compensation. By the common law agistaent did not relieve owner from liability. The ancient rule that action may be brought against either owner or bailee is not so devoid of reason as to be cast aside. The Penn. case says the damaged party can only sue the bailee, not the owner. The N.H. case holds that the owner is liable and would prob- ably also hold the agister liable. There are cases both ways. Of ccur course if the owner trespasses with his animals, he is liable for dam- ages done by them. The owner of certain kinds of animals is under s duty to prevent them from straying on another's land, except when being driven lawfully along the highway,' and then he is bound to up= in:- care to prevent them going on and to get them off speedily. Holmes Oom. Law ]5S says that animals are inclined to stray, that it IS difficult to prove negligence of the owner, and the safest way to ensure care is to throw the risk on the owner. That the difference as to cattle driven on the highway is that there it is easier to prove neg- ligence and harder to restrain the animals, further the owner is bound to get them back at once and so there is less likelihood of their doing substantial damage than when straying from the pasture. In the latter case they may not be discovered for some time. If a man finds stray cattle on his land he may destram them, ■^n'^ may impound them for damages. !f not paid he can sell their. As to impounding there are so many loopholes in the process that it is better to bring trespass unless owner of cattle is utterly insolvent. L.R. 189?, 1 Q.B. 808 where land owner brought trespass while he still held caitle impounded; held that he must elect his remedy. 15 Johns ■??0 held if he impounds and relinquishes he may bring action of trespass. In IH O.B.N. 3. 438 dictum that owner may be held liable for trespass by poultry. Orc.Jac.'lQO looks as ii owner would be liable for trespass by pigeons. -'iS Fa. Ht. 146 as if hogs could trespass. 8 Barb. 580 as 130. It bees -culd not. treit-pass; Innes on Torts, ?58, 9P as il" they could. ^ne rule that » wan is not bound to fence but is bound to keep his aniirais off the land ol" others applies to horses, sheep, cattle, probabl to bees, 1.8 "ow. Fench New .-eries d?8; to eeese Crokss Jases 4^0; to ho^'s 4« Penn. -t. 147; rot to bees. 18 Barber, but Innes on T. contr' . Aniir.8ls vihich are now the subject of procerty and are likel.v to stray and rJc dantb^e are included witninn the rula. Whether the Isw would eo farther than this i;; doubtful. Tne old test of property aiij ani.tala Is 6?radualiy bsins abandoned and the n^s tpnt ir^ net •.'.■■'1 ft*t- tied. If an BnJiT.al ot a class not likely to do substsntial dafT'sge while trespasKiny.has, in fact., a orcpfensity to do such damage, iircbabiy absolutely li«»ble for trespasses by that particular anifeal af- t«r ihe owner has notice of the propensit.v. :nn;als, other than Trespass on Und. MAY V. pyw . , _ .1. . ., 1»46. Ceciaration stated that deft, wrcngfuliy kept a certain ifonkey, well kncwine thet the .TonKey was n.ischievous -ini ferocious, and acccus- toned to bits Bsnkind; whioJ: said monkey did bite plff.; for resulting a=^.ffage this action is broui:ht. Verdict lor pi: . uls nisi. H'*L',^ that whoever keeps sn sniirai accustcnted to bite .fankind, with knowledge of its propensities, i? bound to keep it secure at his peril, and if it does a-M'see, neElif.ence is presurr.ed v?ithout express averitieri ;. . ■■ecleration sllesed the ferocious disposition of the Bnu.^x an.- doit's scienter. Thers was no «yer.T.ent, of neiglitJence, but the court hell that it «s(3s neeli.eent to keep such an aniisi sfter kncftins its sis- criievcus nrccen^itiev. One 7:ubL ^t hir csril keen ir " i^^v-'-^^cti? .nn- inai . in 10 Oushins 5ffj s declaration containing scienter was held suf- ficient. siLBll^N , im no.,: Ltd.. Q.^.,. 1?90* Action to recover :; tor injuries inflicted on plff. by an eiechsint,' property of deu's. Jury found th'jl the anittsl v?ss not d^iin- £srous to a;an, that deft, knsiv it. and thst plff. a'id not brini?, the? at- tack on hiir.self. Verdict for plff. H^-LD, that absence of knowledge t owner of nantjerous character of aninssi »?ould •sxcuss if the aninial be- longed to the class of aniffiais harTls^^?, by nature, or shc^^n by experi- ence to b9 harsRless in this country. ; elephant doss not bsioug to this cl;::S9, but is one of those animals which owner ffiust prevent fro.f; icin.5^ in.juy st his peril, ci that this particular elephant was hsrir- i3ss is not iraterial . Ooart took judicial notice of f-ict that eisphants ar arcus. notwithstanding verdiov found contra; depended upon the cust,ofr<3 of the coMiunity and »oul i mx be foiicK-ad in Jndis. If deft, keeps an anisiai f:s is bound to know «':Ka the general belief ip as tc the danger of that 131- animal cr- class of animals. Jourt here thought it best to establish tierteral rule of law that if animals as a olass have dangerous propensi- ties;, owner cannot escape oecause he thought this particular animal lid not have those propensities. In 38 Barb. 14, Plff's horse injured by fr/ioht at sight of an elephant on highvlay; deft, not liable. Kveu if aO aniiral belongs to s dangerous class^ owner is lisble only for such 'Of aairages , ^ . , .f y >-'^<- class as animal has a naLural propensity to cause. BUXENDIN V. SHARP, p. ^^05, Pksch. 3 Will. HI., :..B. ? Sal- keld 632, ' 'declaration for injuries received frow deft's bull is bad if it (does not abege scienter. Oourt holds that intrinsic nature of a bull is not dangerous to ni.in; distinguishes nature of bull here fron: the nature given to elephant cv court in preceding case. VASON V. K!?ELiNS, p. 407. 11 William III. 1?. ?/odern, S3?.. Action on the case. Plff declared that deft, kept a certain dog valde ferocen^. and let hin: go loose unmuzzled, so that plff. was bitten by him. Tt was contended for plff. that charging it to be canem valde feroceni supplied the want of scienter. H'^TiD, that it is not enough that the dog was ferocious, unless deft, knew it to be so. ■' person shall answer for all damage done by a thing in which he has valuable property, but as to a thing, like s dog, in which he has no v.iluable property, he shall not answer unless he had not'ce of dangerous charac- ter, or unless the thing was naturally iiischievous in kind. More, deft. had no notice and a dog is presumed to be not of fierce nature. Sven if the injury had been to a sheep, the declaration would have been defective without the scienter. Scienter must be alleged to recov- er for injury to man or beast by a dog. Statutes generally reverse the comm.on law on the subject even giving double damages occasionally and that without scienter of course. Eish. Non-Oon. Law sec. 1233, 1241, and 1239. The reason for that is probably simply the difficulty of proving the scienter. But the Islegislatures probably differ with Lor J Holt on the question of the 'dog's nature. If scienter is proved, neg- ligence is not an element in ohe case, according to weight of authority. FLE 1N3 V. CRR, p. 41G, quoted in note 2 '/acQueeri's^'cotch Cas- es on House of Lords. 25,- 1853. Lord "ockburn. In Scotland, if a- man's dog worries sheep, the man is liable, regardless of knoiiedge of a dog's vicious propensities, or principle that it is negligent keeping of a dangerous instrument, to leave a dog so that he can get at sheep. Rl^.YMOLDS V. MlJSvSKY, p. 411. N.H., 1886. Gase for injury caused to plff. by deft's horse striking him with his forward feet, while standing harnessed and unattended. "he deft. knew the vicious character of the horse with respect to kicKing, but con- tended that he was not liable unless he knew that the horse had fo-imerly struck ^it^l^. with his forward feet in the manner in which >'r struck plff. 132. HfULD, tjiat propensity to commit the precise form of damage need not have been shown. It is enough if owner had seen or heard enough to convince a man of ordinary prudence of animal's inclination to commit the class of injuries complained of. ]n that case,' he is bound at his peril to keep hin: secure. What is proof of scienter? / Here the injury was by the fore feet and the owner knew that he was liable to injure by the hind feet. That is sufficiently similar. If the injury had been by biting, the proof would probably not support the scienter. "Substantially similar" is the test. You do not have to show the actual performance before of the same or a similar injury, but only a propensity to do substantially sim- ilar injury. It need not be of precisely the same character as the ac- tual injury. "Viciousness" is a misleading term. Propensity to do such harm in play is just as fatal. DSCKER V. 2hnm, p. 413, Maine. 1357. Declaration alleged that deft's horse broke into plff's close and kicked plff's horse so that he died, damages for which plff. seeks to recover. Judge srefused to charge that knowledge by deft, that his horse was vicious was essential to his liability, HF:LC, that this was right. If domestic animals do damage when rightfully in the place where they do it, owner is not liable unless he knew they were vicious. But here the animal is wrongfully in a certain place; as here, owner is liable for damage done, knowledge by owner that he was vicious is net necessary. Ground of the action is that the animal was wrongfully in the place where the damage was done. 1'homas on Neg., 529, ■• 531, very late authorities on this subject. Declaration was not literally in Trespass quare clausum fregit, but it does allege that horse was on plff's land. Often said that, if deft's animal was wrongfully, as against the olff., in i.he place in which, etc, then owner is liable, not merely for the damage done to the land but for all damages although they are not such as could be expected from that an- imal. But it is also said contra tolhis, that even if animal is tres- passing on land and does certain damage apart from the trespass, owner is not liable, even then, unless damage was of a kind he had reason to suppose animal likely to do, ^authorities in conflict ^'-•'^- irreconcila- ble. If the animal is lawfully on the land, scienter must be proved. If trespassing en the land, scienter need not, according to some author- ities be proved. The extended liability referred to above is only Lc the owner of the land and any one who can be identified with him. DOYLS V. VANCE,- p. 416, 6 Victorian Law Reports. Gases at Law, 27, 1S30. Complaint, that. deft, wilfully kept a fierce dog, kncsin^ ils nature and that the dog worried and kiUed a mare of plff's. It appeared that the dog ran on plff's land after the mare, and that she tried to jump a fence but fell and broke her neck. HSLC, that proof of scienter is not necessary. The dog was a trespasser, and owner is responsibl \: \ 133. tor any damages resulting from the trespass. Old notion that dog coul. not trespass is not well founded; there is no difference between a dog and an ox in this respect. \ Held, that if animal wastrespassing owner is liable for the damages caused by his trespass. rihange of tiirie and place produce changes in law. 43 '('fis. 536. Doubtful in some states as to whether owner is liable for dog's going upon land of another. Very little authority but tendency to hold the other way. Statutes generally cover the point. ITALLON V. C'BRK'N, R.I.. ISSO. A '. Trespass to recover damages for injury received by plff., a yonng child, in consequnce of being kicked by plff's horse which was astray in the street. Judge charged that deft,, was liable even if he did not know- horse was vicious and even if he used due care. HKLD,- that last part, of charge was wrong. Deft, is not liable unless he was negligent in allowing horse to escape, or in pursuing him after he escaped.. Dif- fers from the cases where trespass to land is the gist of the action. Horse was not a trespasser as against plff. 49 Conn. 113, deft, turned his horse loose upon the highway; deft, liable for injury to child :0X V. PURp^T'"'^^. V. '1?^. 1-^ Comirion Bench, ■^'el'. ^-ri^=^, ^-^-7. 1S63. There a horse strays on the highway and kicks a person, owner is not liable merely because he was negligent in allowing horse to be there. It must also be proved that owner had reason to expect that the animal might do some injury of that sort, for it was contrary to the ordinary habits of *»he horses. It did not appear how the horse got there. The injury he did was to the person. In 18 C.bIS. 722, Lee v. Reilly, deft's horse got on plff's land and injured plff's horse, d,eft. held liable; his horse was trespassing as against plff. Clerk 5- Lindsell 345, note ''■ distingui sheds these cas- es on ground that it is not in the ordinary nature of horses to kick hu- man beings although it, is to kick other horses. SUMMARY -^^ ""^^^ ^BCTION. ^ If B's horse escapes onto ,A's land and kicks .A's horse and child^ some authorities hold rejecting Decker v. 3amm.cn, that B is liable for the injury to A's horse, it being natural for one horse to kick another, but that he is not liable for injury to the child without proof of scien- ter. The owner of animals is absolutely liable for injury done other than trespass to land if the animal belongs to a class having a natural propensity to do the kind of damage in question; or if the particular an- imal, though belonging to a class not naturally so inclined, has a spec- ial propensity to do this particular kind of damage, and the owner is aware of these propensities. In these two cases, negligence need not be proved. Some authorities hold an owner liable for any damage done while the animal is trespassing en plff's real estate. On this there is l! 134. a contiicL of authority especially in cases where the dansage is of a kind which that class of animals could not be expected to do and the owner has no knowledR^ of the propensity to do such damage. hether an animal is of a dangerous class or not is a question for the court. In 38 Barbar, the owner of an elephant was held not liable for frightening a horse on the highway. If /the animal is known to have a propensity to do the damage, it Is no defence that the owner used the greatest care to prevent, an escape. The owner is liable as an insurer regardless of negligence. But deft, is not' liable as an in insurer if the animal is liberated by vis ir:a,1or or by the tortious act of a third party. There is no case on these defen- ces and the authorities differ, but the above is probably the law. Beven on Neg. UBS; Innes on Torts 7-1, 104; Glerk ^ Lindsell on T. 852. Braniwell in Nichols v. !;iarsland. If an aniiriai belongs to a dangerous class, it is no defence that the particular animal has always been tractable heretofore. i'here scienter is necessary and proved then negligence is cut of the question. As to aniir;als not dangerous as a class,- it would put too great a hard- ship on agriculture and commerce to hold deft, liable without proof of scienter. Decker v. 3an;irion probably goes to an extreme and perhaps most au- thorities hold that in such a case deft, is liable for such damage only as may reasonably be expected from the animal. Cogs stand alone. Bish. Non-Con. Law 1233. Deft, was not liable in the old law for a trespass of his dog, the dog not being regarded as property. The weight of authority is siill that deft, is not liable although dogs are now held to be personal property. Put the owner is liable if the dog is sent en the land or follows the master, or if the owner (deft.) knows of a special propensity in his doe to trespass and do any special damage. .At common law the owner was not liable for damage done by other acts of his dog than trespass without proof of scienter, but this is changed now owing to the difficulty of proving scienter.,- and the grov/th of a feeling that it is the nature of dogs to bite. i^inglish judges however are influenced by the value of dogs for defence of property and by a desire to have them for hunting and sporting. CHAPTER XI. DECEIT^" SECTION I. Generally — Nature of Representation. ti^ob:..\ V. H'RtfcMAN, p. 4.25, 29 George HI. -3 Term Reports (Curn- ford & East.) 51. Action in the nature of a writ, of deceit. eclaration alleged that deft., intending to deceive and defraud piff., persuagfed him to deliver goods of great value to one Falch on credit, by falsely afeserting 135. that he was a person to be trusted; that plff. delivered the goods and suffered great damage, as Faich was not a responsible party as deft. well knew. Verdict for plff. Motion in arrest that deft, had no in- terest in the rr.atter and was not guilty of collusion with Falch. HELD, that this makes no' difference,' as loss to plff. is the essence of the itiatter. An assertion which is false and which jnaker knows to be false and makes in order to injure another is actionable, if that other acts upon it and is injured thereby. This is the leading case on the subject of deceit. declaration i in deceit should contain six allegations: 1, deft, iiiaae a representation; 2, it was false — false is here used frequently to indicate simply not true in point of fact; 3, that the staten:ent was made by deft, with a knowledge of its falsity; 4, that it was made with intent to induce plff. to act upon it; 5, plff. did act in reliance upon it; 6, plff. was dairi- aged by so doing. The declaration need net allege that deft., was or expected to be personal lybenefited by the deceit, or that deft, was in collusion with the person who received the cbenefit. The false statement, here was not for the benefit of deft, but it injured the plff. It was on a matter of opinion ana the deft, lied as to his own opinion. Deft, was not bound to say anything at all, but if he did say anything, he sbculd have done it truthfully. The action was now in fatt, but not in principle at that tinie. There was no privity of contract, and so the action is in the nature of tort and not contract, .mi therefore no consideration was necessary to be shown. And the statute of frauds had no application. Prof. Sirdth says that where A gets goods promising to pay in fu- ture but not intending ever to pay, deceit ought to lie, but it is an open question. See Pollock 442. The seller can at all events rescind the contract. In Long V. ..ccafi.an, p. 43?, deft, promisea pin. that ii he would sell a horse to A, that he, deft., would pay the price. H'^LD, de- ceit did not lie. Seeeextract from Pollock p. ''i4? regarding such prom- issory statements. PJDGIN3T0N v. FITZMAURIO'«:, p. 442.. Law Reports, 29 Chancery Div. 459, 1S82. Action against directors of a company to recover a sum of money ad- vanced by plff. on debentures of the company, on the ground that he was induced to make the advances by fraudulent misrepresentations of defts. Plff., a shareholder, received a prospectus inviting subscriptions. for debenture bonds, the prospectus stating as objects of the. issug of de- bentures, certain improvements which were to be made by the company. Plff. took debenture bonds, relying,, as one inducement, on the objects stated in prospectus. At the trial it appeared that the real object of defts. was to pay off pressing liabilities of the company. 'Jcntended for deft.s. that staiements in prospectus were not statements of fact, but m.ere declarations ofintention, hence there was no actionable deceit. 136. [ HCUD,. that statements of intention is a statb\TsnL ol lact, and if made deceitfully, or recklessly, regardless of truth, is actionable, if it con tributed to inducp plff. to advance his money. Vrhe defts. represented that they wanted the money to enlarge the business. In tfact, they wanted it to pay debts. Defts. pleaded that they iftade no misrepresentation of existing facts, that the misrepresen- tation ^was as pG the state of their minds, that they only misrepresented their intention. But the court held that intention (the state of a man's mind) was a fact,, ana misstatement of intention was a misrepresen- tation of a fact. 25 Atl. Rep. 61S decided thit recision only could be had in such a case, but upon Lord Bowen's view it seems as if plff. could have there brought deceit. The most famous sentence in this case is that of Bcwen at the top of p. 445. In S4 N.'«.R. deft, made a falsi statemetnaas to his opinion and was held liable in deceit. Bowen.L.J. in Smith v. Land ^-c. Corporation says on p. -'1^8, "If the facts are not equally known to both sides, then a statement of opinion by the one who knows the fact.s best involves very often a state- ment of a material fact, for he impliedly states that he knows facts which justify his opinion." SLCnON 11. Representation not True in Fact. KIDN?:Y v.- STODDARD, p. 446. 7 Metcalf, ?52, 1843. Trespass upon the case for an alleged fraudulent representation by deft, as to the credit of his son in a letter in which he said that his son's contracts would unquestionably be punctually attended to. On the strength of this letter plff. sold the son goods. It turned out, that the son was a minor, and the goods were never paid for. Judge charged that intentional concealment of a material fact in a better of recommen- dation amounts to a false representation, and refused to charge that if deft, gave his opinion merely, he was not bound to communicate any facts. HELD, that charge was correct. Fact that the son was a minor was very material. Deft, designedly concealed this fact, thereby inducing plf i . to trust the son, in consequence of which he sustained the loss complain- ed of. Deft, honestly believed his son would pay his debts and had not said anything untrue, but court instructed jury that if nmctive of con- cealment, was that if he did net irention fact of non-age, the son v/ould be given a credit which he would otherwise not receive,' he was liable. The father intended the plff. tc run a risk which he would net otherwise have assumed. P^'^K v. 3URN5Y, p. 450, House of Lords, 1S78. Here non-disclosure of material facts frorr-forms no ground for an action for misrepresentation. There must be some active mis-statement of fact, or at all events, such a partial and fragmentary statem.ent cf fact, as that the withholding cf that which is not stated makes tftat 137. which is i^aled absolutely false. i^^'.^LL .. -/iNijALL, p. -!50, Minn. ,■ 1884, .'iiile.a purchaser,, when buying aon credit,, is not- bound to disclose the facts qf his financial condition, yet if he is questioned and answers he is bound.1 to tell the whole turth, ana not give en evasive or mislead- ing answer, \which, although literally true, is partial, containing only t;alf the truth, and calculated lc convey a false iirpression. In the i^rincipal case the party received credit on saying he was v;orth ^HSOO.-inot ii;eni,ioninfe that he owed $2100. This was such a par- tial statpmen^ that it was calculated to deceive. The statclinent was naturally constured to mean tha.. ol^; i^ari-.y i;.ita •:3300, fr,ee of; siicuDibrance. Pollock Z iid., 556 says "a statement may oe untrue though no part oi it is in terms untrue, if by reason of niste- tial fact? being (intentionally) oniitted, the stateirent as a whole is fitted to deceive. SiOTlON III. :}eft's Belief as to Truth of Fsepresentation. Um'M V. HARDING, p. 451, N.H., 1853. jrtiapass on the case. Declaration that defts. ,■ being possessed oi a mare affected with glanders,, in order to induce plff. to buy her, falsely and faaudulently affirnied to oiff. that the n-are was well and sound, whereupon plff. was induced to take the n;are; the rrare was not well and sound, as deft., well knew, whereoy plff. suffered dairage. Judge charged that it must be proved that defts. knew or believed or suspectpd their stgitements to be false. Hi<';Ln, that this was correct. In assumpsit on the warranty, actual falsity,' without knowledge or bad faith, ■ is enough, but in an action of tort for deceit, intention to de- fraud and knowledge that staoetiients were feise are the gist of the action In an action on a warranty, plff. need not prove scienter, but in aeceit he must prove scienter. iVarranty is defined in Anson on Con- tracts, Huffcutt's F-d, 33S, S72, note: .'grranty is a promise of indem- nity against a failure in the performance of a term in the contract - a promise to fr-ake cotSipensation, Ifiarkby, 3 lA. sec. 89^. Nowadays, plff. can .join counts for warranty and deceit in one action. 122 U.S. 575 is wrong. It is often very doubtful at the time whether there is a warranty Ci" not.; en the other hand it is often hard to prove deft's knowledge, so it is hard to tell which action to bring. Counts for warranty and deceit should therefore be joined if the procedure alJows cl it. Anson on Contracts, 1st 'ilng, -.d. 295. In deceit it is sufficient to prove either that deft, knew the statement to be untrue or that, he had no honest belief in it. PPEK v. -^Y. p. 45S. Chancery Div., 18S7. Appeal Cases. 1859. Action against directors of 3 cer^^in tramway Co., claiming dam- ages for fraudulent misrepresentationflf of defts. whereby plff. was induc- ed to take shares. The alleged iTiis,'»Epresentation was a statement in a 138. statement in a prospectus that the Co. had authority Lo use steam or other- tiiechanical power, ^ whereas in reality they had this authority only on conaition that the Boara ol Trade should consent. Judge in the court below held that as he believdd delts. thought the consent of Board of Trade was certain to be secured, they were honest in issuing the prop Drospectus, and so notliable. This was reversed in Court of App., where it was held that a falst statement, rnade without reasonable ground for .jelieving it true, renders one liable. In the House of Lords this de- cision was reversed. It was HfcLFJ, that without proof of fraud no ac- tion of deceit is maintainable. Absence of reasonable ground for be- lieving statement true is not necessarily evidence of fraud. Fraud is proved whein it is shown that a flase representation has been m.ade. (1) Knowingly, (2) or without belief in its truth, or (3) reck- lessly, carelessly whether it be true or false; in other words,- to pre- vent a false statement being fraudulent there ir.ust always be an honest belief in its truth. If fraud is proved, xotive is immaterial. Ap- plying these rules to the finaing of tlie judge below, it is clear defts. are not liable. An important case. 5 Law Quarterly Rev, 421. It is an open question whether it would be followed in this country. Opinion is generally against the House of Lords as to the facts. Cefts. knew that their statements were not an exact truth, the prospec- tus stated a present right to use steam powef, but they hadn't that right. It was subject to two permissions; they believed they would get permission, and thought that was the same thing. They never got the permission. The House of Lords said that a man was not liable if he honestly believed what he said, however unreasonable his grounds may have been. Assuming the view of Sterling,-!, that defts. stated what was not true in fact, but stated nothing but, which they believed to be true, the Court of Appeals held, that they must have reasonable grounds for belief in what they stated; that if defts, made a statement not true in fact, with the intention to have others act upon it,' deft, is liable if he had no reasonable ground for the belief, even though he believed it to be true. Some of the defts, must have kncv.-n that the facts st2t,ed were not true, and on the facts they could not have honestly believed what was in the prospectus. The H^use of Lords is right in law. A man is not liable for telling a statement which is false if he 'honestly believes it to be true, that is, not liable in deceit. If he makes a false statement in an honest, belief of its truth without any reasonable ground owing to carelessness, negligence 5:C., in looking at, the facts, some writers including Pollock say that he ought to be liable in an action on the case for negligence, andin England such a liability is created by parliament. But the point is not settled by decision. Plff;. could introduce evidence that there was no reasonable ground for the belief siii.ply to show that deft, did not believe what he stated. 139. iViiciaii& ci pdke 478. ■Phe general opinion of the profession has been since Peek v. Derry that anJ^cLion of negligence will notlie in such a case. Frof. Smith thinks thy- taking the view of the facts that the House of Lords took, that the d\cision is right, because the oiff. alleges deceit and pt-cves negligence, vyvfeich is a variance. Hersche\l's three classes of false representation can all be put into one, thst is, \vherevsr^ Lhere is not an honest beliei in the truth of the stat eiiient th_er_e i s £raud . CABOT V. OHRlSflP', p."433. Vermont, 1S89. Case for 'false warranty in the sale of a farm. Declaration that tr the deft., made representations as to the number of a:jres as of his own knowledge,- intending to induce plfi, to believe, and inducing plff . to believe that the farm contained at least 130 acres. The farm did not contain 130 acres. HELD, that a party who is awsre that hehas only an opinion how a fact is and represents that opinion as knowledge, does not believe his representation to be true; when a xan says he knows of his own knowledge that his farm contains a certain number of acres, the fair inference is that it has been surveyed, and that the owner knows its ex- tent through the survey, Clearly right. Plff. joined a count in contract with a count in tort. He could net recover en a contract of warranty unless he had such warranty in the deed. There is a difference between a statement as to the size of a pieve piece of land, and as to t.he credit of a person. The latter is always or nearly always a matter of opinion, ''he forTer i? susceptible of ac- tual knowledge. If a fraudulent representation is material and relied on, the par-1 ty deceived is entitled to recover danagee, even though the jury would ' think that he wouldhave made the purchase without this representation. What the party would have done if the fraudulent, inducement had not bee,r held out is a mere speculative inquiry and not the test of plff's right to recover. HAYCRAFT V. CRF;ASY, p. 4S5, :i Last, 92,- ISQl. Po an enquiry concerning the credit of another recommended by deft, to deal with the plff. s representation was made by the deft, that the party .Tiight be safely credited to any amount, end that he spoke from his own knowledge and not from heresay. HFl.D, this will not sustain action in case for deceit where damage results from default of trusted party who turns cut to be a person of no credit, if it. appear that such rep- resentation was m.ade by deft. )bona fide and with a belief of the truth of it; for the foundation of the action is fraud and deceit in deft. and damage to plf . by means thereof. Taking the assertion of knowledge secundam subjectam m^ateriam,^ biz. ,• the credit of another, it meant only a strong belief founded on what appeared to the deft, to be reasonable and certain grounds. Pollock on ■^. ■• '■ rr *~* ^^, n.s. Aords must be ccnstu I - 140. ' ovia Biust be construed in view of the subject rriatter. nist.tnfeuished trOBi pre'jsding case by subject rriatter. Tn first case, subject matter wa;- a thing which couH be sot at with accuracy, and is usually knkwn i oivniir, but in principal case, it is ainiost impossible to arrive at sbsc- iut« accuracy, and it is a rratter concernin?^ v-hich the ordinary lirpres- sjon is that dett. is giving only his belief, and that whit deft, said as tc her finsncial responsibility «as siinpiy an expression of opinion. !;ai was the meaning of the staten^ent^ is the question; It is 9 jnatter of cof'siruoticn of deft's ststeirent. Frof, Srriith does net say that he agrees with case on the facts, in view cl deft's ststsir,snt that she hsd inherited nicney. ' N.'JJ . . "0 rhUhl not be fcllcwed. 41 R. , . ■ irstler of coiiircn knovdedf e tnat directors have very little kncwledjrie of the business of .vhich they i.re officers, 'istincticn betwrjen intent and fnotiv . here detl. intended to kill, snd woundea and falirisd, and was in5i;;Lia for ?^ounding and niaiirdnr . and pleaded i"'-^' ^is intent ita;?: to kill, i-''"'or intent was to kill an pri;rrv ■-)rd ... '^^e intent was to nmn. lephens His. of Crin;, [.s.v cl' . ill. il . 3rnin.f= ssainst two coinson fallacies, via., the con- fusion betsfeen luotive 3nd intentioa, and the tendency tc deny an i irie- diate intention bsceuss of the existence, resl or supposed,, of soitie ul- terior intentic . ; h to escepe is Ibe ictjvs; stabbing police- !i.&n is the intention. 1 i^ustin on Jurisprudence, . , " . ■nCN v. :3efendsnt*s Intent thai Piaintiff ?ihould sot on the Representation. Cass Lor a^eceit. Heits. false stateuients st-out the honesty of a certain person,- thereby injucin^ piff. tc eniplcy hiui. He errbszzled plff's funds. Hence this action. ''iry charged thai defts. were lia^- ble if they knowingly ir-. ' " ■ lationa, likely to occasion loss to plff., int.sndinfc i,uwi, wtctut iheoDselves. Jury founa ;_ pit'f., but added that defts, iiity of no actual fraud, but only c fraud in law. Hence it was ;i_ ._ \.q enter verdict for -f"*''". "" ?rour; that gist of action for deceit is intent to defrsu" plft . ih^i jury sieant that there was no expectation of personal ;^2in. 'hie, io nc. necessary. It is fraud in ia* if a part^ arakes representat.icRs he knows to be false, ensues, though his tnotives may not, have been 'o»d^ ad no irauduient intent., they seant Ir had nci. ujii; a,Q;.iyi. zi .i^iLish gain tc hiff;seif. Absence of that, scii., selfish ffctive does not prcv :^- -Jction being naintainable. It ii, -ui- licient that deft., lade the; .^^.. .:...:•:-! ;,-n that sco^e one of the public should act on It.. If he did nc. ....... that any of the public would act on it, but ought to have so supposed, as an ^verape reasonable man, he would probably be liable, Phe representation sTUst. be aention that piff. c; the class to ishich plff. belong? .vouid act c another sialsnient of the saire rule. liable of course, as before 141. said, ir an average reasonable ii;an would have i'oreseen that the statement would be acted upon. This latter test is probably the ture one, al- though according to Peek v. Derry, t^e test is, not the average reasona- ble man, in deciding ^hether deft. I^onestly believed thestatement, but whether deft, honestly believed in it himself. POLHILL V. '.^LTIIR. p, 495, 8 Barnsv;all 5: Adolphus, 114, 1532. Action for deceit: Declaration alleged that deft, falsely and fraudulently pretended that he had authority of drawee of a certain bill of exchange to accept it, whereby plff., relying on the pretended accep- tance, received the bill to his loss. It appeared that deft, acted in the belief that the acceptance would sanctioned. Jury found that he was guilty of no fraud. Verdict for deft. Motion to enter verdict for plff. HRLC, that to maintain action for deceit, it is not necessary that deft, should have intended to benefit himself or injure p)Jff. It is enough if he made a statement which he knew to be untrue, and which was intended by him tc induce another to act en the faitji of it., in such a way that he may incur damage, and damage is actually incurred. Rule absolute. Deft, ral not wrong motive. but he made a false representation inLending purchaser to rely upon it. 1 5ish. uV. L. 7 Ed., s. 241. ? Bish. 59B. 6 L.Q.R. 74. In order tc prove the intent necessary tc n:air.t3in an action for deceit, it is not necessary that there be any motive of personal gain, tc deft, or to any one else. It is only necessary that deft., intendeu plff. or the class tc which plff. belonged to rely upon his statement, or that he ought to have foreseen, as a reasonable man, that plff. would rely on il. LANGRIDGft;. v. LRVY, p. 494,. 2 Meeson & 'A'elsby ,• 519, 1837. 3ase. Ceclaration stated that I., the father of the plff., bar- gained with the deft, to buy of him a gun, for the use of himself and his sens, and the deft, then by falsely and fraudently warranting the gun to have been made by N., and to be a good, safe i:nd secure gun, then sold the gun to L., for the use of himself and sons; whereas in truth and in fact the deft, was gulty of a breach of duty and of willful deceit, negligence, etc., in that gun was not made by N..; was not safe, etc., gun, but on the contrary was made by an inferior maker. - It was unsafe; of all which deft, at time of such warranty and sale had notice: — Flff. confiding in warranty used gun as he otherwise would not have dene — it burst and plff. lost the use of his hand. HSLD, (after verdict for plff.) action was maintainable. Oase seems to lay down that one who sells an article with a knowing- ly false representation as tc its fitness for use by the purchaser or those to whom the latter may communicate the representation, isiiable for injuries resulting from such use. Here the m;ctive was tc effect a sals; the intent was that the plff. and those for whom he said he bought the gun should act on the faith of the deft's representations; They did so act. one of them tc hio ^ 142. Decision somewhat like George v. Skiving ton, ante; court decided on the ground that the father had named the son as a user at the time of the purchase. VCourt held that if the person injured is nan;ed at the tine of the purchase,' deft, is liable to him. BODFORO V. BAGSHAW, p. 501, 4 Hurlstcne 5- Norman, 538, ■ 1859. Case for deceit. Deft, was director in a mining company. By fal falsely representing that the subscription list was full and 2/8 of the scrip had been paid in, he induced the Committee of the London Stock Ex- change to insert the company on the official list, a thing which was on- ly done when the above conditions were complied with. Plff., seeing the mining company in the list and knowing the rules, was induced to buy 100 shares. They proved worthless. Hence this action. Objected for deft, that as the representation was not made by deft, to plff. him- self, it was not a ground of action. Verdict for plff. Rule nisi. HPJLD, that direct communication to plff. was not necessary, if plff. was one of the persons to whom deft, contemplated that the representation should be made, or d person whom deft, ought to have been aware he might injure. In this case all persons buying shares on the Stock lixchange must be considered as persons to whom it was contemplated that the rep- resentation would be made. Flff. was one of the persons whom the deft, ought to have contem- plated as liable to act on the representation. Ordinarily speaking there cannot, be a duty toward all the world, out there can be a duty towards a very large class. Representation was made to the class of persons to which plff. belonged - persons who knew the rules of the Stock Exchange. Pollock on ^raud in British India 58. App. of Pollock on f., W2F:d., 555. ?^e doctrine of this case is limitea veyy much by Peek v. Gurney and Hunnewsll v. Duxbury, but Prof. Smith thinks the general statement of the rule in the principal case is correct and disagrees with those two cases. It is well settled that plff. can recover if he relied mainly on the representation, andin this country he can recover where the rep- resentation was one among several other things upon which he relied. The only dispute anywhere is as to how far reliance must have been put upon the representation and how much on other things. This -general subject is taken up in sec. 5 of Smith's Oases, p. 511. PEEK S: 3WMY, p. 50^-, House of Lords, 1873. ■■ prospectus for an inteded co. was prepared by the i.i.o.jcuL,orb (the directors of the company) and issued by their; to the public; it con- tained misrepresentations of facts known to those who issued it and it also concealed the existence of a deed which was material to be known, and which, if known, would in all probability have prevented the forma- tion of the ccnpany. Being addressed to the whole public, any one might take up the prospectus and read its representations and be induced thereby to apply for an allotment of shares. H?LO, that when the al- lotment was completed, the office of the prospectus was exhausted and 1" ¥3,. ■ that pltf., a person who,J;ad not, becoms an allottee but vyas only a subsc ourchaser of shares in the nsarket was not so connected with the prospectus as l^p render those, who had issued it.. liable to in^e.ffinify hiw against the losse^f .which he had suffered in consequence gf His pur- chase. !-iQi-u^iii£;nc;s'.,sU3t,eaie.nv, uau, ino cpn,oni oi page cJc inaL tne prospec- t,,.5> .uad.done its work :[.,§ .vecjy doubU'ui, It, is a question of- fact v^he: - er.^it had or not-- /. The case is criticized in Innss on T. 54;, 55,' note. It h.'is beeri held, that the effect of a prospectus still siirv1v=?^ in sue: a -. . '^.ndrews . . 73 Law Pifi.es, n.s.72c. ^ . have. asked to have the jury find specially whether the prospectiis was part of the general fraud which caused plf£. to take tfte share , ■ tlier' the cl^ft- , should not have contemplated thet niQre than the original allottees would act on the prospectus. "l .will usually be found th^t the lat-tec is t.he case. If, the jury icund' that p|ff. was one of, the ' 'Vhoiri the defts. ou?>ht to have contemplated, as likely tc --i->" ospectus, the case ought to be decl:^'^'^' '"' .--ti-.-r- way, [.[, v,'DUXBQBY,'p; 50^, ■--^.- 1^?T. . _ r - of a. foreign ccrccr artifidite 're-' quired." by^St. o\ 13S^, Z. , . . ■ t>e fi^ the coiririssloner of corporations in order that, the^corporati; - .siness in and file . . it.'on file and was induced by'misstatenient. contains the promissory notes of the corporation, which proved to be wort/iiess, - • , an action of deceit, cannot be iiaintaine against the officers of,, tjie corporatic: . '■"'" ity of court probably thoufeni i::iic jury cGcuia nave csen askea /.:.ou;io*, i.>if. was one of a cI ■ ■- 'Ikely to be ipjure:^ "'■'■ *^- ^-Ir^ -^it- tificf'-"!'' Kent,' ^pntm,, Rol.i-. .; . Fol._ on T. /Ist, \. . ►-,.. - • -- •■• ?S7. .... need not intsni'that plff, should rely on hi~ false repre- sentation; sufticient ] :u.Pht to, ha.ye known tWt pi .aid rely" en it; doubtful whether deft^ . aid nbi'liave conteir:pl3ted that plff. mieht rely on this. . Here the majority of .t,he cpurt apparently held that the certificate was not filed with intent to induce people to act on the faith of it. The court thought that t|ir ' ^t of filing the certificate being dif- ferent here from Bedford v. -L^-shaw, made a difference. Probably the object was to satisfy the statute., but,, the question of left's lia- " bility turns rather on wh&ther deft., ought not to hav^ -or' --"ol-i ----■ tr-- the class to ivhich plff. belcnped nii?ht rely unon ii. iecticr, ■. IS oniittea. :TI0N VI . Whether plaintiff is bar r^"' by' failing to use ths ''p.f>.n^ pt '-^v - - mahd to' detect the ^>^lsehood. '2jh:.-'iLh V. ?^ujv:,i,p. zc'( , :yijLiibOuri, IStv,. ... ..-un to "eccver damag-es for false representations. c^. ±1.- ■ ^?! Jon 8fiw Je^laeii art J nc 'i Ji b9U23i csri oriw i Qi a& ai : iq ariJ ;38noo ni bsial'iiis b£. --tnw esaaoi art J oanisae .'nid .936flC , 'lo moJJod 9t1J J6J JnsniaJfiJa 'asnaiflC bic iJasup 6 8i Jl .luiJduofc Y.^9V ai iJiow 3Ji anoc JDfi;i ■0 esnni ni bssidiJiTO si seeo sri ' . .^on io fcsri Jx is ,3 iiiJe auJosqaoiq fi lo JosTie erij ' ' "' :^'::''' eM JT een eo/Joaqsoiq J9d4 ,3sie[l2 ao Jos ciuow sssJJoj -ig srfJ . ja&o 9ri.J ai i-sJJei bnuc'i sd . J'isb 9(1 J iiioriw aae^o srlJ lo sno Jo srio aa oj Jnstio saeo 9(1 J .auJosqaoac o y,191 oJ " ■ J .:Ji;. -^-i.i- i.' ^J B .098 <""''' . '" . ''-^C 'io .JH yd v-iij.ijp -.'.-liiaud Ob ysni noiJeaoqioo 9(1J -j^,.. ^.. .^ .li anoxJs'ioqioc lo •'Mill Y.d becubni 3£h bns aLi'l no Ji bnuol .1119 .ji b9iil fcne oqioc 3(iJ lo :=;eton y^oaaiinca edJ 9?lsj oJ nieaafiJ bsnieJ,: . , Jonneo .• fioiJoa n; , . rfi 9d oJ b9V0'iq .noijfi-ioqioo sri J lo 2*:. . sri J JanisSB efl bio uf. JBriJ JrfauoriJ YId6do^q J^uc ii'ioni'-^ .J ylejiil 386lo 6 lo sno asw .TUq asriJs'ilw . . ' esmlort ,,!ii(iior .sJsoiliJ ;on I;. >. iiilJduob ;,Ji ' no yLai Jfi^i'Ti ■/fJr!' . jauoc .'.J S'i9H art SOU ^f} ' ;nsi9l sriJ YlsiJsa oJ gfiw Jo9[,qc srlJ vsn oJ Jon iSiUsrl J J yJilid ..;: iolsd . p.nt,ing theiTi to be much more vaiu^.ble than they were. Jud^e i , •"'.fit ir plft.b;^? /d.ilisant . inquiry might have ascertflinp-i the '' truth ity .pt V)ie- ^lileaad representation, *nd f3ile'r'''tL :?uch j invest! , aeflilie txa/i not' recover. H' . I v'„-n ivfiere t!\^ means; of 'kjiowledge, are- 'equally i .. . , 2 man f\as a r'i^^ghUip .r«Jy on a positive represeni^aticn of fact in pvery case, exce ' :;re- a§-!inBt«teme.nts of va'ltie of Opinion, the representa- tion y;as not. calculated to put hirri off his . ■ where, as here, Lh£ iieansrof' knowl^dpe^Sre not equally ave" ' cartis: , objection Ic^ ■■^ .-..^f -i^r t^at par*" '-'•■^tv -^ ,..1..- , be ellowea. Plff .: owed '-po^d'jtv to deft, t? 1 both. sides,. Qontr , Mass.. OrdinaRi,,iy -it 'is no defence to action of d^'isei: Lh:t . could have found cut that he was liein^, by ri'aking further inqtuirieiS- Ogntx-ibutory negligence is no 'defence : tsntional injury,., Plff's failure to make '^n^diries should te' no de- fa nc . ''e owed defti..! no duty to lock up his- sf- . ~ut Lns irulA. Oeft's not wTas in tsntional, was int-: :n, ■jnd when acted on it wa? no dsfeBce-,: that the resuu ''.lii-j;: ne ini^ndo' , could have been prevented by foresight. ii 7'snv r-^?"r '-c--^v?r hnv-^ '--en decided on th^ 'ground that plff. W2^ foolish fit, but in tri:ny of thetF.' the nature cf the repr-c ..ion "was such that vendees senerally d$1'not^ct'"c cesentations. Frof. Smith says representations as to valu ortces, 6f law, ought to be actionable, but point is: in discat . l. ought "to -T;. 3re one stands Qn a better footing t*ia the ot'ljsp , 5o -too , i3 LP rspcescntation cone ' 'ality. section 1 . Publication. action fcr publication, ............ ■.,, aeft. to' plff. ccr:t?1;nir5? the libel. ihird pariy, foiled ut, any' oth^ef" 'peT''feo'n to r-- , , _ WOUl GUbliCr; breach of t suiiiciono, niiL ns oe into; .3 or liSa: _ _ 4- - , , -: i 1 1 i ^ . r U „ ... „ , . „ 4 .r J rJrrSvt JO ,jj.. ... tiOi ,.\^Jai;A vJiniij- ( 3n 1.4 5'. ?N^'... - . . , ... 57, New York, ^ - ■'. Miction on Itie pasejj^jijtf- :>ltibal, conW^an-^ . senXbydefi. to 3..:. . Jlore sending it,' deft, read it to 9' person in his bffi'&e in the presence of his clerk. M' . ..ua,t, thi^ was sufficient publica- lioh to sustain the aotion. If it is connpunicated at eny time to a third person, it is a publi- cation. ' ' • vl-v:.:, p.-389,'lJi&iPflU£, 1S17. ntained in-a letter direoted to piff. /■ oierk, as w.,, :i., ^„...^„, ,.... th^^letter^ it not being nrarksd, "private," He t-^t.ifipi f;h^t."he believed-deft. knew such was his custom. whether deft. :-:'jf !'i(^ie-ht 'evidence' for the ,1urv to considep- whether aeU. ., ntef'd: tt^^'^'tb'obWsi'^o the- han- thi-rd'. pspsonr, which won: ' i. not intended that- a third paci ■ oielhat a-ny one but the jjarty ••ad- dressed wpul . orobablh tioi ' . "fje ocinion niigh:. have besA. made str: . Tt i'snot trcct-^ii-.v iiic.L n e "should -in tShd gno'' •'- V~^-'^ i^; , :-"^'icrient that it W prbba^ble-^iia^- ■> th .) thi. 1^ ■*— - ' • ".; -'^ : ' "/ ' -■-■—> ■>-■"■■• .% :v" f^;.. j-j.p-j^r r;.^ thst DPOof of publfoation H§ -^essentlal-, M IL : ' :oken lfi'''a 'pdWrd plae^, tMy ffliS^t-' hive been oken - n^ ihdefstodd bf'a^thipd person, ^'^dferfe :^ reputation 'in on pf"Ot^ i , ::n/l no; iff^s own-sstimafeion. -No-ao- Lic 3 thtr on present is-^stone deaf or does 'ridt'*understand th:- letter 'r^rtiains-unseaied-ohtf 5 it-'Peaches a(SdPessee it lo not ^iLCuna. lor a civil action for defair.atioR.' Oefamation must be'SornriiijniQaticntci a" third" person in order to be actionable. ■j^T^ ., i.r.->^oni ''ictatirtg to a- stenographer liable, butnot attorney, 70;l.... ........ . . :3^* 'Sending postal card wbiild-seeifiHo niflke liable, tho^ilhii is~^li1':'f delivering' sealed' letter by"set*vaht'wtie' dees- not read it'.'^p.'*Sl6'. :. .jointly coitipose-a-^iibellous ietterV i-t'-'lfe -a pubii6atipW-"by each in the Vre^fenbfe tftWdt^er . '■' Cm¥. 71, Ocnimu- nicatiOn'tp'wli'e by' htisbaM^ is 'fiDt- slanderous. Con^iiinlbatloA'to ? wife defLlniifi*^ husband ^iid: v'ibe versa' is a pubHcat'ibn'. As iit^terers' they are' resaidefd- as* one; as subjects of defamation, they are regarded as two. '"hen the cnlly perscfn to wh^' s'tatem^iT't- is^'i!t-terecl-- spea- ker' t'lVinks 'h.. .0 ;.aonef'"and-'t'alko ..o hifiiself, bel-Ti^ 'i- .^.vo r.^ uo the pt'esen'ce' d/L others,- '^it-'woVicf'^'be heid' 'a ijublioat ion. .,_'n 'letter is mis- directed "t/b another p^s'b'n 'instead b? one defafifed,'="lt- IS' freU'd publioatioi ■hen deft'.- Writ'esietter ^n* puts i. in Ifls deskv whetfe another Darson biZ-eak^^ open' -desk' end'- tbok iette^ ourtr, opinib'fts'-arie-^'ton'tMdiicJtor-y:,. some hol'd'ingliiir: liable ;f9r .a kee0' I't. in. ''•enerally CTinj ■M jGe 'i^ff.t riiB.ffij?. oJ nc ij .30 3B 3 b .t'^vii- itsb ,fiIuo« :i 90 J U8'8'L ■it ,:rl Uons ■;i . r ■':V , ti ^ L 1. ^ )J C| '; r ! x r r n lOi ' -.it .... ...... .,dq 146, speakiH:,, publisher would ordinarily be held liable. for whg(t,,new6pape; contained, although he ■" ' idt know or mi^ht not be . to J^l^.n)e for not. kncAing what was in the y^y^c ch&r.^eable fc5r V^- ---tiv,f 'n^ 'dal'-s ■businss's. p is liable because a Rriijioipal is !1. r ^'i, I / ., LORD' Y: . I , p, i-Vrl , A^i,t;,^u:;L- J;.c:!IUc: . " ' HCiiim to'L libel Gcntaifiel in a iletteE' addressed '"^ pi.^, o„^l-xu^ hijB vihh being f^ hypcorlt,8 and ysin^ the oloa^ of ^eligidri for ■unworthy pucpQSfc.-. .er was delivered unsealed Vo a sed\PM. that for spoken Vr mtsre Menerai abuse no action lies^ ^ "- ■-'■' ~ ' " ' • ■■ ' Slander is oral defan.ation; libel is every other kiritl'' of SiWf alr'it ion . If this. statement had been Mde orallyUt' would not be ^6tionable per SIS.,' but. it.is coniir.unicsted^fey'Bjeans ether than oral, and it is there- fore actionable per S£. if ferences' between libel and slander, i. ilander is;only a' ciVil wrong at OOnniOn law; libel is a'^bfiininai offence as well as a civil wronr. ". ords except certain de- fined classes are actionable ofily on pr. of that' special damage resulted. All written words if coding withifl -the ordinary d-sfinitich of libel are actionable wi,Vhout pr,,iqf ;:3iai -damage. Ijibei consists of words calculated tu'expubv i iran iv- uatred, contempt or ridicule^ . -3.- ,. I'lr-oth is always a, defence t,o a ,oivil .action , tor, slander , bat truth, tftOush at connon law a" defence ig -.. -^Tvi' ^-':t"'0'"' '"'^^- 1^0-! is not always" ■= "efenae to a crirrlnal crosscution. - :■ ... . .70 L. . , .,.''. a. ->3p.; 24S. Ordiriary defir\it3,on, of libel is wc. , . . l-s actionable per se. Class c s actAcinabJa per c ,uch -larger, -in .Ubel than in slander. All words which would, b£i actionable per- SQ if spoken are so if written, •'■ritten words c.alc'ulatjed tp bring «i. nian r into hatre^i, contempt or ridicule are actionable t, , aitjicugh. .tli^-sani^ words iff, spoken woula not. be. "erious question Anpiiier, th^pe- should- be -a d,j;6t{i-nction between oraLajid written words. publication. The dict^tiw;, .._ defanjatpry. words, by ,anattorney to his clerk,, the wtrGh*--i&«4fi*^-tdrM}e'^'f ect, that, a charee 'nss been lodged against ? thir4 perscn^'ig |i©t 3 publicutAon. . _ . A iefanatofy word^' tp^ his, wife 3bcL ird party i? nc ublicatic. , person ytts:r ;;ir.fitocy wordt wife about the huscano , . publicstion. . . '. 1- . . 3^5.' r,.R'.SO^Q.b.:. 53c. >S An. Law Regt n.s. ^118. nibio ciuow isrieilduq .anxsfisqe oJ 9d Jc ^nifiJjiQc ,U on biL'CA' I r V r r; uodjiv, oiJoe o Y :xJ.ouq ^ ! crdinarily a publication. S~Flarv. L&WRev. ^'^' ^"^® '5 "by a' p6st dfffce clerk from a pos- oublicatiofl. M ^- nol ecu 3ken in^ a pdblic 'Ui^ce] ' they 'niust ' -ictlcri -fOfdef^fTiatlon is ncl .^cauajx- ^_-^:;iiy icr,?,aii.i:^co, j,w t^i i^eiing's, 'burwiifere- the'-coni^Qhica- .x^.: enioufit^ to a„pyl)Uc act"''--! iQjury •- 'mgs nit) aken into conKT^-r^tiop in e^tin!a;(,in4;^^:,^^is._^^ '"" "■ "' riil lie even' if the th^rd' p^rtie... .iz nbl^ be 1 1 ... v\. .^;. statement;-. . aptipn, will aiSO lie'' ifHfe^ po^irnni -ra- tion is: fliad£~T3rr tWiH person"*; 3 not repeat ^t, ^ ■ • ufficient Icuiated' tb4n:iWfe. 43 J . . u.entipna,! an n- to a it(JTii|:;fi ,p4j:\ly. IS a. jpiuoJ^iQi5l,i,Oi . . . ''^.^ n.s. tS^". 'o ;',cui ■ ■ , a •publica- t' ■ . :i ;iii^. . , u.'ic uiixi Oi i aiii^iiaL .T>in ircK Ljie dns'~tn- L-...0. .,0^ iwt. i" ,u.it.on 3iobe by ffi t-'-; ^' -55 neither intentional no- n-.3] i.c,=r,t, t_^ nnblicatjoq, but ;...... ..„.,„. .rrOT.^ ''iii^ IT; flffles iL. . Lfust 3 librsrv .vera held not lisfclg fbr'a i^b'lics- tion Tin -^^viBg c libei, rustles t^aVlnt; no reasQi^tjO k tiae puiaiiisr ipaper is liable for "f^e 'tiisertion' of -^ iioij even-VBOUMfe hs is aRGprept l and had forbidden any such-insertion. ;^ooley 228. GQtfers »^re not- ectionabTe- unlesBi ispepi^ttl %e cl '6ntmr\ MlTf^^'to thi^' volume notfc . . As . if wad^ -cfl*adily-/ogn bjg gi?ound pf aotiof^-on-* jv . .OSS of itfapiliise; rsijactiual or special , and rand-untii-statat^ of'I'B^t. O r. • sail t|iat.plfr. ^ -■ 3tion ivith Mm J. ;..i'i.., unable.. i/o ; vocii..-, i-j ;:ci ricceSs^ry ::--2ifs-and"busi- .C^--. . ..-, t)^e gspepxaiaaaia^e^ most not b^ ffencifoltir rs-rtidte,' but must naturally and fairlv'result ffoi'ths wrongful act its'-:!!. Illness .s sqv.i -• ci line jof: -J cejec^nummoo .5 . v: 1318(51 t iniifcin isqoo ^' j_ o -J o /J^jsq 'fclMJ vlc)?i . .f-J '^J I 'ion ■ i i:- - - \J IGO Jic ^Jw ;^.iixvi,v, i:x uOXJ f - n r j ■r't' p:.-,fl5J -„tn!^;-'ft^^1 ■ n3v© .noiJ^aafli ilooa i1 ()b) 148. irofli exciteirent caused .by slanderons lanBiiagfe is not the sort of as:i:i-.^t whicti rdf!ns 8 ground of' action. Judgment for deft. The case holds that the vjif e: did not prove sufficient special dan;- age. 2GWT thought nipr- •-ivoiou? actions might be brought if held suf- ficient. PeGilniary..,L9. - ^.^u\red |pr special damage must be the ef- fect of the inguricus incut^'ticn uccn scn^e cerscns ether th-=.n th- ngrty bringing the:i.cld:: . . . . oberts'/ 5 B6fet 5-^ii;it held that ■merely- d^prl'viTig one-af fiiemb^'rBlrip ih a'"^^elig^ioU;- ty Is hoi' aitl'dh^ble fepeclal d?i- Ho ^tual pecunlsry ber.efit is att smb^rsliibV Teft^fe vvcrds caused plff . to lose an-' •-- ,i lhs' cciipanicn- ship and Ithe- hospltBlity^bf divers frienoc. -^"'^'•'^•ji'Ti.J,- here i6-'sofre tfe»r:por'§l damsge thougli' slight, and'MGor-, .. .,....:.. ^ ^'»ich occurs throusi^ the action of s third person. ^. Tt muSlLt^,*' " "" " ^ "' - terrporal' benefit of' sosre' pecuniary value which v,'oul9 L,i..-ir;!-- "~ "-^tn cohf''"-^-- ""'"'" •"^'^'K -"'■n though conferred gratuitouslv . ■^efsfflat,Tonmn?t be the c*;ui?5"!fi' the-'leeJ^i '5^B^§'fef'^t;'R*^le?'rr of the d&mage, Tfie' first altered- is' soiretimes^ field- nct-!iabe- ?Sr'i^epititich^ of • the slftRder, it beings hel9 generally that that is tbb remote* I'- result, but Prof. ^Frith says'thst it . intended' or fBreSlw- the repititioti' he shGoia be field" liable.' yifji^'^v. ^^^I", f. '17, Oct. Pleas, 187 . '"'•eft. ■ said of plff., a stone mason, that^he was- a rini^ieaaer ci the 9 hour!' system whereby' plff '.lost 'a good situation.' "On 'demurrer. HPL?, §^''Cieie[*idge,'j:3. ; a ststeliient falSelydnd maiicfously-made whereby another uR:3er ^eme'eipeuffistEnces flight probably be damaged! -is -too broad a rule -to allow-i ^feeover^ ijinder. •' ■The'i*ords-!Pust'^'4mii6^ want of soMe general reqaisite afe^hdnesty , 'eapaeiity , fideiity'; or- the like', or dofiriect •the imputation '"#ith the ^plff'^S'Sf fi^e, trade or business. 'Fhe worlds -here'-ar^ -not-^acfetenable in -theifselves. -Judgment -'for -the -cleft. '^he w(^pd'pingl*fader is by -no 'leans a'-'Wepef of b^d -iffipc i . "^eclar^tidn' her^e 'is a warning ^'to pleaders; should have aiieged dsm- ^3.-^'s lo plff; -ih-his cbcupatidn. But if deft;, says something which -he thin^ks will d!d'-daMsge, and says it ih a place where he 'knows -if. isliksly to -cause damage, and he intends it to do damage, and damage results, he ought to be h?ld; i-f'it is fsl:??. even -though^ words -are 'hot'def amatory in their natur. . igers on ' . . ni; Id. by'Big^'iow; 87 to 91. Eul though an adtion of defamation will noilie, it by no means follows that another action will not li . . : . ^97,498. I V-t9.i :3ni3ns I', \; ' '■ edJfti bluoflg iq iO Di H9. Pdi on :. iiL'di -1. '10,'2ili thinks Lne inbuib and not the daniagt should Or f^t^- '■"•-iiTi '-'^ ■^'^\:\CV.. '^■■";i;ION IV. JU:: PI it: AT' ION. (a) I'ruth cji Publication. FOS-: V. HILj^T/''H'', p. 419 , Mass.. 1BS5. - Plff . peqoested oo-ur't tG Ghap^e that, truth is not a defence to an action of =3'lanaer , ' ' - "I'e words ware ' spoken nialiijlcUsiV or without any reesdfl on the part ci aeft.'to believe them true. H^Li), that this was rightly refused. ' .' -^.pr-.^^-.i nj^.o i^ iM-i,-: riggtion ■^^fr- forth the truth of'the^words rrerei , . •Truth is a deffewce- to all civirsctions-forotefafnation although niiade 'wlihout ?t»y reasofi'to believs it is tru6 git- tfi€''tilft#'-deft. siade it aM^althoug! de it With-'m&Iice. ^If'dfeft. s^ts up the def^BcS-of ■ tt'Uth and fails, the'daiiifeges will usually be mfigh'. enhanced. Declaration shoold 'dilegethSt Shapge was false, bat 'iT-iis jrtnecsggary to introduce any-evideace of falsity unless deft, sets up truth as justificaticn. j ' ^' --^TON TV, (GontlDued) i fb) ^:si.c^oition of Arv6ther''s Stuusicni. ) tiaintain such an action there irust be^hialice in deft?'.' Snd derKege to plff. and words mast ;.be untrue, '•here wordi^ ape falsely and n.aliciously spoken as here, -the law, iiicplies dama^'r. ~3ft. by showing he heard 'the slanderous matter fr6iE;anoth:sr does ncL ne£;ative the ciharge of ffalide, for i person rrgymalicsiously. re- peat what another person may have uttered upon a justiliable occasien. '-°= note p. 4??1 of thes;' cases.) Judgrr.snt -foe ipif £■*■;. - ... ■. l')- Contrary to old law, which was supposed for a long tirr.e to be the other wayl*"' OiK '-law overruled distinctly 'by this case. .i^'bsolute: privilege and. eohditional or qualified privilege. "■hief executive ct thq nation or state and ffeo'bersi oft national and of state legislatures are Drivileft, i V the pt'edoBiinating m'otiVe;''ls'1t' T!3licfe? Is^ tfre deft, eniitl? 5 st-ate^sjit true, hcwevefmistak^T .^^ . . a improper mbtive would destroy t le. believed it,. to. be tj?ue. ■ '' ' ■ ■ , liable,* an?l,':if the predoiTiinstir lice then pircbebly he would beliable. ^"*''^RV1ll;i- v. HAvKlfJo, p."S§^; Ooirl'Pleas, 1851. ...cii. nad disfi'issed plff. froir. his service pnswspicion Qi/v£ei&, and when biff; ;was in '•'."^■' - ; Ling roon;, "': C2iled jin ,twc empl9ye§s and in'the prssshce 6f the, ^:,,. .. „ pi'ff . 'uo..... u..is lao^uage, ",I.^h|ye disr triissed this i^an'for 'robbirlg fi;e; do not speak to hiir> or T shall think you aS'bad ss hini." HELC, a , privileged ..ccinunicption. for it was the duty of thedeft. --aiii...8ij.o his if, ..ants- from $s,s©ciating with a TSe'rScjn cI '" :cd,^ desig(|^tsd,,ths plff . to .b It y»-= icii reijut ft,l?.e pre^sumption ot malice, which would oinerwise arise from the nature of the words used. lauoicil an 6 10 '1 noiJcM i 8i/0iJ0JB . Jnsbiinoo .;■: C3 asritJ fcn£ jilsra ■'»*:> 15T. That presomption beint? pebulted, it was fpr tjie pi|i:. \q she. ; - lively that-the words ttstfe spokrn maiiciously. It ^^..certAi^y, QQt, nec'essary in' order to-efrablfc a piff.. lo have t^e-.quest^oD of ,Dialice„ sub- mitted to the' jury 't^iat t)5e evidence shpuid; t)e^ s.uc):v aS: necessarily lead?" t.~;'i»..- concrusion that ;n;elice sxi.s.te6;, l>ut, rjjt ia necess.ary t;.<..o, the ahouid'-Tarse a prcbai>ilit,y of,inal:ice.-; .Here, the, evidence, does ric3t r'atse 'any ptjobabilltiy 'OC" raaiics', .and- so that question ought ■- not to be left! -to ^ he jury. Privi'iee'ed ocoasi'on i& sa ;bei1iter phrase -tha%j|)Piviieged,;CQniinunicatiS(T Plff . rnust 'pr eve' rpa lice -when the occasion'is privileged,, miOV.^ ^: V. ^^OW'^^l, p*.5SQ, Privy Qouncil,ie?C. :stt. wrote a letter oomplsining of plt'f 's'^cts, io an^QUiciai,. po^ siticn, ^'y sent it to the /TonB authority,' but; it was. h,©!;^ t^^iat. this iTi^^'^'^c aiLi.6rence it it was. done throueh an honest, inistake^,, Judge c... ..-,.. lh?kt'/ unlike the cases of meBtpr giyin|< character to servant,, v^h'ere one clMftie a privilese on the- ground tjiat ihe coD'Biunicaticn ',iaz n^e^Tii^'iHscWar^ br- duty , he must prove bona. fide-.. , , , was itfTons'. 'In- all cases of pirivilage alike, .-.bona, .fides wiil be prs- suiirsd until 'iJlff . has shown express malice. 'Point of 'base is, .where was the burden of p^rooH -One. of, the condititwis of ppivfll^e is that defV. should b^liev l. If Got^dition Is privileged ami vltl., c Lai ins that, occcisica c^n nci ce,'.' regarded any longer as .privileged because deft, did not believe 'what he ■-'t^i-' , '1^= b'jr-'-'^ ■•? on Qlff, to prove that deft. .did not beli^v-. L .. yCLYN01JX,: p.:5|3, Ol. of^Ap^.j 1377. Slander. t clei'synan nfiade a defa/iatory stateffien . is curate in Gohsultins hiir^Ee tO' his. Gondust' in. ^n; ecclesiastic. .uer. Jueise' in^ his charge impliedly told jury that as the occasion was privile]?^',^ plff • i^ust prove. -jiial ice. H%D, that this 'if.'as wrong. -• 'pMvilegie^' occasion is. a^). fori ;SOjBe , reason and,.for tii^:t„ reason only. 11 ^ft. u«3es the occasion: for aii; luiirect reason or motiye,,. it is for another r^son and the occas-ion is not privileged. ^ One, but by no meafls the o»ly,.'iiiidireoV rriotive whic^h could b? alleged, is malice. f?9«l. question.-. in this case was, whether deft.d'id in fact i)elieve' his statement; or whether, beini angry or moved by SQuie ether indirect mo- tive, he did not know and did nctioare, -whether statement was true or not. Held that the question' is not d? -reasonable belief; if occasion is conditionally privileged' andSeft. honestly believed what he said, then deft, is privileged, even if' a reasonable man would not have be- lisved. Libel.""" Frllha i'SLild privilokc " ''Oiis false. HivL:., unat deft, needed tp" show' t'not only proper occasion, but good' motive also,. that, i? that the cbmmaniceticn was- Ttiafe' in g'dcd'- faith, for a justifiable pur- J 111391.. .'.iQViJ .... w^. i-^ .1 ^wii aaob .tJ .ftai 80 o.t .Ion A in 11 :.;ilifiv ..liT, on ^t^oi . J t w X -J .1. ,i\iJ f Trrj-TTTv -sn pose, and with a belief founded on reasonable , grounds, of itsstruth. Probably cause for belief in truth of coifimanicatioD is nedessary. ■saded in substance that ttie occasion was' oonditionallv i nxyijLw^ca,, ind that, Me stated what he was informed Waf tpue. Court , |]^ld that it was not enough that deft, should havfe believed but'th^'bs- lief must have been reasonable* Fiff. may /feoii^ conditional privilege vY proof that left, did not believe or that :'he hM no' Reasonable ground ' for that belio. . ^.' as t-6 '"Whetlier* repor ; sxcept legislature ana courts of '.i ;re conditional i Public, has a right of fair criticisW and fair co/imienl, on^s, work pubiishsl and sold to t.hV public; tfeat 'would iae, whether .jury'' tho'ugii.tv tji.e. criticism was fair, if it v:^:; su'' i^asonable man wou^j^- have .iiaae. ^"air cotmnent of a public man oi; iiuiiiiitpd facts is al^j^^wab^e if H i^ such-'lis a reasonable' rr'-'" -^-I'l ^-'.'e -i^ie/' ^ngligh ■MQi), Vli. JoQdit^Lonal Privilege, ' \^ Privileged Reports. .K-tR.ip. '^^=,,Q.-B.., 1860. .. Plff, j.. . . ..1.^... i ^iuition t.>^ ...^ House of Lords cb'ac'ging if'high judicial off icer, with having^ , thirty yegtr a before made Ji stateirient false tp his own knowledge,' in order- -iljc dece^ive a 'eoiiijJR.tt8e of the liouse of Con'mons a>nd praying inqi^ir-y and- .-removal of the off ice|S if the charges :und tf ^yte ^Asued on the presentation of Che petition and the charges were utterly refuted. HELD, that this was a subject Isiled bne ^seoq a J SOI (1 10 1S«J LUOW J jexl Jon r-^fiijn .•fisioi - iJ . .tSlTi :.'J3 est f.«|i .1119 uioiiof, -' -fe'l ■io .^^ .. ^ A. w , ..^. ^-.aw 3::-:Tsdc 9r|J tns 153 of firsat public concern en wi ioh a vy^itenn a public n.«^,aper had a ' coaimenls woula rici be actior jiiy Bfioull t.^Kik '' i- maae in fi-faiip spirit, au^ sueh ;as"v;8re' jusiiile'i 3 eir- ^ui' >' as'ciiscios^d-'in an- ^ccuratfe reps^t cf '^ebatev- A faith- ful Lo^^iu in a (bub lie newspaper of a debalt,e in eiLr.cr House^cf- Faplia- iiiSTit ^^-ti^^niri- mon^sr ^ ■? ---^'H^ing "to tfie ?^'-^"--ter' of an individ^aal v^^'-' --:- ^ - :oiirse6f debs^L. , .0 nbt adticMbie at the ... -'ihe psrs&h-wfibse character had be&n oal led' ih question. Ttie publication is privileged' on'tfie'' same 'prifljeaple', vi?;., tliat the advan- ublici; .he bbn.iounity- at lar^e- out'V any-'pFivate!iT).TOT".v r bruiting from tjie" publieatloin. ' ""iditionsj 9 in'B-Harv. L«W' Rev. ■ o&se GO this subjeci *na also on- the "gfowtti cf the -^ - " - 1 the^ top of.' p. 467' is 'ifliporta'nt ,- and' 4^^ often ■Libel ccirplained of was cont?ined in the; report of an examination of a debtc :ustca.v . ieding^ held in eaol" before a reg- istrar iti'- bankruptcy under t^e bankruptcy IqL ^p^- .judicial a;ad m - publj" ,':i; ; . -^ir report Iherefcre ot tho^^fe profeeedinRs.iS, pro- i . is was- fa pfi' ' even: thoneii' the 'prcceefliie^^ were bsfori a.: lofcci not in a public plac^ . fair report - cv -J ii. i.-3lfevant. public. :.o exfee-ptioh-s are .: -- . .-. -.- -:.- .-:--.. _ _ is for,' th^' public Seed that it b^ kho^nl ' An' officer >'aki aurt Record ■ public 'V/'ouTd be"h6lrf'to. sbch'-'a'- purpose. '■-^n/ . . Pa^as', 1876. ■RC believer- elves • rieveclr by- the conduct laii> upon hi ?es er sala- , applied tc i: tT3£istrat£ m cpsr court 'for Y^surrncns under the master c: - 1-.-'- -+ - ngf^jbtrgte- ^*clined to entertain the appiica-- ti:,:, ..,.— .-...;.- JL ' -'' ^'■■' •'•^■;-'-;t •>'-- "dt a critrcinal court. If'e J-JL„. aftewerdf: puW ^ ,;. . i ,.,port which "t.he jury f oui d tc bd'S- rtr^ort of i hicb >k- oc^ tile magi-stratfe.'' ffi?L!J,' thi^B '■ -rrret^t-^-dr Dublicatic^n. A ithoaoh it- va?; f(>tiin*d'-iri '4iii-s :•-? :. ■ f have pc ■ ' V'jupjsdic- jion enou tifrony and so i -ot the result-.Qf the . DtiL the -nature of ^t he oa-se. ort of ex parte proceedings is con- :iLion3iiy p.-iviiegeJ . -ccosainss are ex parti, ^hare on* -party ori- ■^ ;■ "".-"■^'zntei!"' If liic court should order a case to be Mid behind . .Mo:. -a-:oPSi -Fr(9f J '?''^'^''^"t:'^"^"''t(S a ir:an fieht^ be-.;PQnish^-'' t'--- contempL _- couft if he'r§poptc- ,., ..-„ hardly bscauss tb- n-^v, _ 3 not prj - ileged.' ' Thi is dcabtfui-ho'.ev^r. Matter .dn : . . ongress duriig s^ret session is not priviler^ed. S Vlk 1 1^ wou . 6t)H 0- jyr-liceis yi i ! 1„K '1 -j' r-o'c-i-ct r-r-r-'c ->r>7ir-l ^r >,b ■i)0 ■.'0 •?!: ^c•ii^•^i■ Fdyq " r ^ «BW ^^Ini- ■ Jo sr .tpffj leJTJ IsnoiJ 154. ... .vOurL of App,^ 1S77. ■lea ana c ^a ior conspiracy Diff-. to defraxia uii.:_r'.'.-ribri.--.. Plf':. iioroad at the time oi ine tr'' ' -' I'snce was tnaL qhl. >^ -vii.^n-? and then giving an aBstir^ct of the speech for the defence an ' suTr^'iri? Rib 'in full. .ff.'sues deft, for libel. : -,; the report was fair or not. ;le Is that a report should.be s' fai; It must give ?/it,h' substantial accui ui.iiL passea, de' ' ' ' ^ ;• ^ ~ ' " ■ . lull report. 01 lxu-.-icii the report is found in a paniphlet no diffsr^..^... . r-^^^ ^..co ..i iftiH is a fair reooft is'fcuna on*t:.-''76 of iiiicj^'' '^?>ses. The tp'^^t i^^ does the repc. .3 peot ir notion of pi ace ':^ ceedm^s -c eral-'^^^CL, c It. need not b ■' true report of the newspaper by an attorney in privileged nc^ : ^ ' jourt of justi- Unibrf ~w6rl '— i-L '^J i Libel for oublishint: t-iole about the plff . in e rredicfcl jour- nal •■'. -. :ii£acti3r; dI' ' efl . : ?- gave a brief acct. c: . c-iefcyr' ilted - ekpuflsicn 0; pl ntiali . ' : , leri I- for I- ^ ■ all r ments till the closs. ri^l, sbr I Sfl>f .nu mo 3(1 la 155. Dose A iiisi?- dii ixoeeaineiy aelainaLory aeciaration or bill akiiu ' iuring the vacation of the court. Suppose C, a newspaper man, pubiio :^.. it.. H':Lr, that i^ is not privileged.- lf^ Mass. ?.0? . that case the defencs was j/art of a judicial procei^ing. But the Cc: sucDose-cl" "is not a jud'i'ci a/ proceeding, but sirply ^n act of the -p^rrtv If,' end so t . . to privilege it does ;^ot apply. ;■■■ ' ' V. ".yPB'^LL, . ^2,--N.h', 187^. yf accusing plff. of crime/ Flea, teftg.'''Were publl dws/03per and as such it was part of their dnty'^'tt ■giVte to their readers su6h ifenis of rnews as the/ might prooerly .ji^dge''-t(J be or intefes't 'and ■value to the community, >r-'*-?t they published- th^'ar- ticie tc-'^t'^'i'^^'^ 6f in good faith,- belie vi/i.-., with good reason that 'it was tous. , , that the plea is not a good defence. Deft's judgment of the 'crbtf'^iet^^ of the publication '-t^rtcf evidence of it^^awf-ijlness. It . 'been alleged ■that the interests of tfre ■6on^niunity-'wol w8iild hcivd'be^'n promoted by the pa bite at; ion if tfue. Lai. linitely settled fn accord; "except where statutes cover. NewspafJer publisher would be jQ^^tifl^i-if 'ant oth^r citizen wo^li-M jtistified: rrers fact of his '^'basin^ss gives Mw. no greater ri^ftt ■■Shari ^any ofie else in- the corririihity. ' ''■" ■■--' i-f. v.-.-nt. '.v>!3t reports -are priifi'fel^df • Ansi-.d : i-.n i,,uOii,^. vhat ■•bod?ies? fthswer: all public, judicial and legialstive bodies though ex parte.- Also nothing is Isbel which is merely cofi^nient on a subject fairly open to public cOrrinent.' Siich 'as -Matters-'ofpablio welfare. In the case Of printing a bodlr," the inatter 4-s-opei^"t'6'tF)^ j^ul^iic to 'read by the act o 6t t'he-'par4fes theinselvesv it "siiKJh 'bo6R'4i ^3:3/ -s^^ criticis-iB is of llsHtobe 8 fair conirent and so jastifiab-li^r '-<4. K.* F'.]197. See p. AA7 . ' was well settled until lately ^^t leat^t^^that a criminal prosecu- tion would lie for defamation on a deceased if it -injured the relations. Odgers on Hef. star paging 375-6. L.R. 1? O.B.H. Queen v. Londshevr holds that no civil action lies for slandering the dead. In the Ij.i. tflere- is no case of a civil action beine carried to th= hi-jh^-r '^oor-:,-- thpt Prof .- '^tiith knows of. Probably there are none. -p'OTION VIL (continued) ?b) Coftin'unications in the conmon interest of the ipfiker and receiver, or in the interest of the rraker alone. H^ ; ^y^!.' V. FUGH . p. 484, Con'. Fleas, -.1B8S. •''Cticn for libel. Plff. had sold his stock in trace at aucLion iiu; ihe proceeds were in the hands of the auctioneers. Heft., who haa sold plff. goods on credit, procured his attorney to send a notice to auctioneers not to part with the money, plff. having coDinltted an act of bankrut)tcy. This was' the alleged libel. Judge charged that this was not a case ih which eood faith and belief in truth of the words ■ were justification. HELDv that this was wrong. A communication made- by- c person im.mediately concerned in interest. In the subject matter to whp.ch it relates,' to protect himself, believing it true and acting without •; J '1U0( 1 janiBSfi -iBilduq 1 10 •! ^ : -^ t aua ■Jill 'ic bluow ■no Wv/ -^ X -I J U \J ., .) ^nrt.Txqq Iq jw noiJ . feOiOfi I. o 3 L i. IKS aialicious motive is no libel. Occasion was a matter of interest to the speaker. LAALl^SS V. Tgli AN3E:L0-E3YPTIAN COTTON CO. ,. p.' 486, G.B., 1869. Action for libel: defts. published of plff. their manager, in a report of the affairs; of the con:pany, these words:-"Shareholders will ob- serve a charge of IS'OO.e for deficiency of stock, which the manager is responsible for; his, accounts "^have been badly kept and have been ren- dered very irregularly." HSLD, that as the report was a necessary and reasonable mode of cormunicating to the stockholders what they had a right to hear, the communication is prima facie privileged. And there being no evidence that it was not made bona fide and without malice, plff has no cause of action. The communication here is of mutual interest. The publication by printing was held necessary and proper here. 81 Howard 802 has a dic- tum contra, but Prof. Smith thinks the case at bar right. PADMORS: v. LA'^RSiNCIi,, p. 488, Q.B., 1840. Cass for slander, in charging plff. with having stolen a brooch be- longing to deft's wife. It appeared that plff. had cal.ced at deft's house and soon afterwards the brooch was missed; that deft, then went to an in where plff. was and stated his suspicions in the presence of a third party; that plff. with her concurrence was searched by two womien called in for the purpose, and to whom deft, repeated the charge. The brooch ivas not found but it turned cut later that deft's wife had left it elsewhere. Judge charged that verdict must be for plff. if the words imputed felony, as they were clearly not privileged. HELD,, that the question should have eone to the jury whether the charge was made bona fide. Charges otherwise slanderous are protected if nade bona fide in the prosecution of. an inquiry into a suspected crime. HARRISON v.- BUSH. p. ^90, Q.B., 1855, m Action for libel. Plff, was a justice of the peace. Deft, had and others, inhabitants of the borough, sent a mem.orial to the Secy, of State, complaining of plff's conduct as magistrate, and making criminato- ry charges against him. HSL", th3t question was whether deft, acted bon a fide. A communication madebona fide upon a matter in which the party has an interest or regarding which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which would be slanderous without this privilege. Deft, here certainly had both an interest and a duty. Two sentences in this case contain a good summary of the law on the sub.'ject and are often quoted. They are "A co.Tmunicaticn made bona fide upon any subject natter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a per- son having a corresponding interest or duty, although it contain crimin- atory matter which, without this privilege, would be slanderous and ac- tionable." "Duty, in the proposed canon, cannot be confined to legal duties which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation." . 157. PROCTOR V. WEBSTER, p. 493. Q.B., 1885. Libel. Pitt', was sanitary inspector of the borough of Newark. Dfeft. wrote a letter to the Privy Council, charging plff. with irregu- larities in the exercise of his office and with taking a bribe. It was coi^tended that the comniunication was absolutely privileged, but the judge chaVged that malice would make deft, liable. 'itlC,- that tjiis was ccr- rect\. The charge .vas only prima facie privileged.- Analogy of judicial proceedings does not apply, S'eCTIOl^ VII. (continued) (c) Communication made in the interest of the recipient. CHILD V. APFLKCK.. p. 495. King's Bench,' 1829. Libel. Flff. had been in the service of defts. Later another person enplcyed her, and wrote to deft, for her character. Deft, wrote that while in her employ plff. frequently acted disgracefully, and since her dismissal has become a prostitute. Deft,, afterwards made similar statements to the persons who had recon.mended plff. to her. Judge charged that letter was privileged, and communications to the persons who had recoiLmended plff. were not evidence of malice. HFLD,- that, this was correct. The wholeletter was prima facie privileged. The gist of de- famation in giving character of a servant is actual malice, of which there was no evidence hers. Notice that here Mrs. A was asked for a statem.ent concerning the girl. It is the statement of what the girl did or had been since she left *.Ts. Affleck's employ that was the chief bene of contention in this case, but Prof. Smith :thinks this is fairly in ansv/sr to the letter that f/rs. .A received from !/rs. 3. CCXHfr AC V. ^ICH ARD>, p. 497, Com. Fleas,' 1845. Action for libel. One case, 1st mate of a ship,' wrote to deft, that plif . the captain, had been in a state of constant drunkeness during the voyage. Communication of this by deft, to shipowner was the libel alleged. The charges were found to be false. Verdict on general is- sue was for deft, as plff, had not shown malice on part of deft. Rule fo for a new trial refused by an evenly divided court, two judges holding that the communication was prima facie privileged, as a person, having information materially affecting the interests of another, and honestly conmunicating it, though having no personal interest. Other two judges thai privilege did not extend so far, as here there was not even any mor- al duty on deft, to ccmriiunicste. Notice that hers the deft,, volunteered the Infcrmation. The law is new settled in favor of this decision. Notice on p. 501 "I cannot but, think the mcrsl duty not to publish of the latter (captain) defamatory matter which he did not know to be true, was quite ss strong as the duty tc conmiunicete to the ship owner that which he believed to be true." This theory if carried out would destroy conditional privilege. The argumient proves too much. The question is, is there a duty sorr.etimss tc conxunlcate matter without be- ing asked. The law is now settled by the weight of authority in favor of Tindall's view, that it is often a duty to tell things unasked which you do not know to be true. Volunteered conmiunicaticns are no differ- ent in law froiT: asked for coiiiiiunications. Ahere there is an enquiry for the information, the jury is more like ly to find for the deft. But the duty is net Confined to legal duties, but is extended to moral and social duties - imperfect obligations. It would seem c.s if information given in good fsith where plff . is a political candidate ought to be conditionally privileged, but the au- thorities are in conflict. Chase,- S3 Am. Law Rev., 346. Joannes v. BFJNNli'TT, p. 504, >/ass.,^ 1882. Action of tcrt fcr libels contained in letters to a woman to whom, s the plff, was then a suitor, and was afterwards married, endeavoring to 'dissuade her from entering into the marriage. i- The deft, was the former tWily minister and being at the house on a visit had been requested by thi^ parents to write this letter. H?LC, that the deft, was answerable since he haa no interest in communicating this intelligence and had no duty to perform. The statement was made after the .c-it. ii.-ja ceased to be pastor to the family. The court decides nothing es to whether he was privileged when he was. s'lhy was net this really the same as a communication from the father, being at his request? The point is net not.iced. BENNf<;TT V. DEACON, p. 503, Com. Flees, 1846. Case fcr slander of plff. in his trade, ''^C. entered into a treaty cf sale of timber tc plff. Bennett, but before the sale had been finally agreed upon, deft, meeting C, asked if he had sold. "^ said "Ibelieve 1 have to Bennett." Deft, said: "If you let. him have it, you will lose it,,- as he owes m.e 25F and I em going to have him arrested." a;.C. re- fused to sell, HIi'LD,' judgment for plff,- the information was volunteered and not bona fide made in response to inquiries. The court, here were equally divided and so the verdict before the single justice stood. SECTION VII. (d) excess of Privilege. TCOGOOD v. SPYRING, p. 508, > Rx.-, 1834, This case will be found at the end of this section, DUNCOi^Ei^; V. C/^NISL, p. 510, Q.B.,>1838. Libel. Plff. had been a candidate for Parliaiftnt, he had ad- dressed a circular letter to the electors of the borough, of whom deft, was one, asking for their votes. In response to this circular deft. wrote a communication tc the newspaper containing matter relatinfe to the private conduct of the piLf.,i imputing to him fraudulent conduct in cer- tain m:oney transactions. Later deft, wrote another similar communicatic Contended for deft, that as the communicitions were made by an elector to his brother electors regarding a candidate fcr office,- they were priv- ileged, and question of whether they, were made bona fide should be left to jury. rJELBv-that -it was--not necessary to leave this question tc the; 159. jury, tor however large may be the privilege of electors, it would be extravagant to supDOse that they can justify publication to all the world of facts injurious to tjie character of a candidate. Probably the better view is that taken in the next case. Assuming tnat the communication 'was privileged, if only .T,ade to voters, then ii, is a question for the jury whether the rr^ethod of coniip.unication was rea- sonable or not. MARKS v, BAKRR. p. 512, S.iinn., 1881. Libel. Plff . , City Treasurer, was candidate for re-election. Defts., publishers of a newspaper, called attention in their columns tp 8 discrepancy in the accounts of plff. The insinuation that plff. had : enibeazled was not true, as the accounts were all right, but deft, acted in good faith.' HSLD, that as the subject matter of the coiinr-unication was one of public interest, it was prina facie privileged, and the defts. were not lisble without nalice. Undoubtedly a communication to voters ought to be privileged, just HS n:uch as 3 conniunicaticn to a firn; about to hire a private person ought to be privileged. Private and public ought to ri'ske no difference, ^ee 22 Am. Law ^ev . 346 for discussion. Fair -o .- consinent on candidates is a different question. Commenting on admitted facts is generally not actionable. In order to make a statement concerning a candidate priv- ileged in states where such privilege exists, there must be an actual canvass for ncminaticTi, or something going on to show thst the plff. In- tends to take office if elected. Conditions other than the occasion. Under this heading two questions present themselves. 1. Was the occasion privileged? 2. '''ere there other considerations present? Prof. Rmith thinks that there are other conditions besides actual malice. HATCH v. lAW. p. 514', Mass., 1870. Tort for publishing in the Taunton Faily Gazette the following no- tice concerning plff.': "George Hatch, having left mi employ, and taken u upon him;self the privilege of collecting my bills, this is to give notice- that, he has nothing further to do with m,y business." Plff. requeste. court to rule deft, was not authori2;ea in publishing notice in a newspa- per. Judge left it to jury to say whether it *^as a reasonable miode of communication. Verdict for deft. ^'<:Uj, that judge did right. ^ere ■ fact that notice came to persons not custom.ers of deft, would not of it- self defeat the privilege. It is a question of reasonableness. The question here and in the next case is whether the communication exceeded the occasion. Communication must not exceed in matter. The statement miust not be given greater publicity than is apparently reason- ably necessary to discheree the duty or protect the interest giving to rise to the occasion. This case is in conflict with Duncan v. Daniel and Prof. Smiith thinks that on the question of privilege, it is nearer right. '.W ILLIAMSON v.-FRR:AP , n. 515, Con. Pleas,. ie7;'V\v .>.'■';' ;■?•}'.''>■( "^i" '., 1 iX ft I'-Vi' ■.'!'<'.' ■.',i>';>?A'>- ^^/■V'V';^