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 ENCYCLOPEDIA 
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 BY SOMK OF 
 
 The most Eminent Conveyancing and Commercial Counsel. 
 
 UNDER THE GENERAL EDITORSHIP OF 
 
 ARTHUR UNDERHILL, M.A., LL.D., 
 
 Of Lincoln's Inn, Biirrister-at-Law ; 
 
 Reader of the Law of Jieul and Personal Property in the Inns of Court; and Author of " The 
 
 Law of Trusts" and "J. Treatise on the Settled Land Acts," etc.; 
 
 Editor of " Fisher on MorUjafje." 
 
 ASSISTANT Editors : 
 
 C. 0. BLAGDEN, M.A., I W. E. C. BAYNES, B.A., LL.B, 
 
 Of Gray's Inn, Barrister-at-Iiaw. | Of the Inner Temple, Barrister-at-Law. 
 
 With the Aissistance of the following CONSULTING EDITORS, wlio have consented to give their 
 Advice on any I'oints of Ditticiiity that may arise. 
 
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 Author of " The Spcdfic Performance of i Of the Jliildle Temple, Ba.rrister-at-Law, 
 
 Contracts 1399." Author of ''The Laio oj Settlements.' 
 
 A. MACMORRAN, K.C., S. P. BUTLER, 
 
 Editor of " Lumley's Public Health." i One of the Conveyancing Counsel to tlie Court. 
 
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 Editor of " TudorS Lcaditiq Cases on Of Tiincoln's Inn, Barrister-at-Law, 
 
 Convpyancimi, "tc" 1 A uthor of " The Imic of Landlord and Tenant. 
 
 T C WRIGHT J- B. DYNE, 
 
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 A Joint Editor of "Davidson's Precedents and W. A. COPINGER, LL.D., 
 
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 Of Lincoln's Inn, Barrister-at-Law. I Conveyancing," etc. 
 
 P. S. GREGORY, 
 
 One of the Conveyancing Counsel to the Court. 
 
 THE purpose of this Work is to supply, in a convenient and easily 
 accessible arrangement, a complete collection of all the Forms 
 and Precedents which are necessary to the lawyer in the 
 practice of his profession. 
 
 Unlike existing Collections of Forms, which are mostly the work 
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 will be secured by their passing under the eye of the General Editor. 
 
 In short, this "Work will be a complete Library 
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 Forms — that a LaviTyer can possibly require. 
 
 ( 2 )
 
 UNDEEHILL'S 
 
 LAW OF TORTS 
 
 EIGHTH EDITION.
 
 A SUMMARY 
 
 LAW OF TOETS; 
 
 OR, 
 
 WRONGS INDEPENDENT OF CONTRACT. 
 
 AETHUE UNDEEHILL, M.A., LL.D., 
 
 OF LI>-COLX'S IXN, ESQUIRE, BARRISTER-AT-LAW ; 
 
 Header of the Law of Meal and Personal Properti/ in the Inns of Court ; 
 
 External Examiner in English Lair in the Uiiirrrsiti/ of Liverpool. 
 
 Aiitlior of A Concise Treatise on the Late relating to Private Trusts and Trustees; 
 
 " Tlie Settled Land Acts," and " The Law of Partnership" ; Joint Author of 
 
 " The Principles of the Interpretation, of Wills and Settlements" 
 
 and Editor of the Fifth Edition of '■ Fisher on Mortgar/e." 
 
 lExgbtb Edition 
 BY THE AUTHOE, 
 
 AND 
 
 J. GEEALD PEASE, B.A., 
 
 IK 'IIIE INNER TEMPLE, E.SQIIRE, BARRISTER-AT-LAW 
 
 Assistant Header in Common. Law in the Inns of Court; 
 Joint Author o/" The Lain relating to Mnrlrts and Fairs." 
 
 LONDON : 
 
 BUTTERWOl^TH &{V., U .^, 12. Bkll Yard, Temple Bar. 
 Xaw ipublisbcrs. 
 
 litOf).
 
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 LO.NDO.N : 
 
 BuTTEKwoKTH & Co., Crank Coukt, Flket Stkkkt. V..C. 

 
 iSi 
 
 §\\m (lolorh, 
 
 WHICH WAS FORMERLY DEDICATED TO MY LATE COUSIN 
 
 JOSEPH UNDERHILL, ESQ., Q.C., 
 
 THEN 
 
 Recorder of Newcastle-under-Lyme 
 
 AND A 
 
 Master of the Bench of the Honoitrable Society of 
 tite Middle Tcmjjlc, 
 
 IS NOW 
 MOST REGRETFULLY INSCRIBED 
 
 Zo bis /iftcmorv?.
 
 PREFACE 
 
 TO THE EIGHTH EDITION. 
 
 The facts that seven Editions of this Work have 
 been sold, that an American firm have thought 
 it worth tlieir wliile to issue an unauthorised 
 edition in the United States, and that a 
 Canadian edition has been pubUshed, render 
 it no longer necessary to apologise for its 
 existence. 
 
 Many of my friends and clients have expressed 
 surprise that an Equity and Conveyancing 
 Counsel should have written a Treatise on the 
 Law of Torts. The answer is, that every lawyer, 
 whatever his speciahty may be, ought to know 
 the jninciples of every branch of the law ; and, 
 in my student days, my endeavours to fathom 
 the principles of the Law of Torts were sur- 
 rounded with so much unnecessary difficulty, 
 owing to the absence of any text-book separating 
 imnciple from illustration, that I became con- 
 vinced that a new crop of students would 
 
 a 4
 
 viii Preface. 
 
 welcome even such a guide as I was capable 
 of furnishing. The result has proved that I 
 was not mistaken. 
 
 Indeed, however useful the great treatises 
 then existing were for the practitioner, they 
 were almost useless to the student. In the 
 first place, to his unaccustomed mind they pre- 
 sented a mere chaos of examples, for the most 
 part unexplained, and, in the absence of explana- 
 tion, seeming very often in direct contradiction. 
 What student without careful explanation would 
 grasp the difference between Fletcher v. BijlancU, 
 and Nichols v. Marsland for instance ? 
 
 In the second place, the men are few indeed 
 who can trust their memories to retain the 
 contents of a large treatise with accuracy ; and 
 although that is not necessary, yet it is essential 
 that they should accurately remember the 
 princij^les of the law. 
 
 For these and other reasons, I ventured to 
 write this work ; and I still think that if a 
 student will thoroughly master it, he will know 
 as much of the j^rinciples of the Law of Torts 
 as will suffice to make hnn a competent general 
 practitioner, and to pass him through his exami- 
 nations so far as that subject is concerned.
 
 Preface. ix 
 
 I do not assert for one instant that it will 
 enable him to answer every case that comes 
 before him, but T am not acquainted with any 
 man wdiose mental stock enables him to do this. 
 In the vast majority of cases the practitioner 
 who has any regard for the interests of his 
 clients, or the reputation of himself, will turn 
 to his digests and his reports; for however well 
 he may understand the principles of the law, it 
 is only very long practice indeed, or the intui- 
 tion of genius, which enables him to apply these 
 principles to complicated facts with ease and 
 certainty. 
 
 The present Edition has been somewhat 
 shortened by the elimination of the Chapter 
 on Infringement of Patents, Copyright, and 
 Trade Marks. Although no doubt such wrongs 
 are torts in the strict sense, they are of a very 
 special nature, and are but rarely the subject 
 of a common law action for damages. In a 
 students' work such as this it has been thought 
 better on the whole to exclude them. 
 
 The typography of this Edition has been 
 altered by placing all cases in foot notes instead 
 of (as formerly) in the body of the text. It is 
 hoped and believed that this will facilitate the 
 reading of the book by students.
 
 X Preface. 
 
 Lastly, I have to express my thanks to Mr. J. 
 Gerald Pease, of the Inner Temple and Western 
 Circuit, Barrister-at-Law (who has edited the 
 present Edition jointly with me, and upon whom 
 the greater share of the labour has fallen), and 
 Mr. Hubert Stuart Moore, of the Inner Temple, 
 Barrister-at-Law, who wrote the articles upon 
 Fisheries and Ferries for the last edition. 
 
 ARTHUR UNDERHILL. 
 
 5, New Square, Lincoln's Inn, W.C. 
 Uf June, 1905.
 
 TABLE OF CONTENTS. 
 
 I'.uM-: 
 PitEyACE ... ... ... ... ••• ••• ••• ^ii 
 
 T.A.BLP: OF Casks citki) ... ... ■•• ••• -■• ^i^ 
 
 Tabi,e of Statutes cited xli^ 
 
 Introduction ... ... .-■ ••• ••• ••• ^ 
 
 PART I. 
 OF TORTS IN GENERAL. 
 
 ClIAI'TER I. 
 
 OF THE NATURE OF A TORT. 
 
 Art. 1. Definition of a Tort 7 
 
 2. Classification of unauthorised Acts or Omissions 
 constituting one Element of a Tort 1'^ 
 
 3. Of Volition and Intention in relation to the 
 unauthorised Act or Omission !•') 
 
 4. Malice and Moral Guilt -1 
 
 5. Of the connection of the Damage with the unautho- 
 rised Act or Omission ... ... ■•• ••• --^ 
 
 {]. Where Damage would have been suffered in the 
 
 absence of the unauthorised Act or Omission ... 2('> 
 
 7. To what extent Civil Remedy interfered with 
 where the unauthorised Act or Omission con- 
 stitutes a Felony ... ... ••• ••• ••• '^^
 
 xii Table of Contents. 
 
 Chapter II. 
 
 VARIATION IN THE GENERAL PRINCIPLE 
 WHERE THE UNAUTHORISED ACT OR 
 OMISSION IS ONE FORBIDDEN BY STATUTE. 
 
 PAGE 
 
 Akt. 8. General Rule 32 
 
 9. Where the Act or Omission is forljidden to prevent 
 
 a particular Mischief ... ... ... ... .^4 
 
 ., 10. The Observance of Statutory Precautions does not 
 
 restrict Common Law Liability ... ... ... 35 
 
 Chapter III. 
 
 RELATION OF CONTRACT AND TORT. 
 
 Art. 11. Distinction between Actions for Tort and for 
 
 Breach of Contract ... ... ... ... 36 
 
 12. Privity not necessary where the Remedy is in Tort 37 
 
 13. Duties gratuitously undertaken ... ... ... 40 
 
 Chapter IV. 
 
 VARIATION IN THE GENERAL PRINCIPLE 
 WHERE THE UNAUTHORISED ACT OR 
 OMISSION TAKES PLACE OUTSIDE THE 
 JURISDICTION OF OUR COURTS. 
 
 Art. 14. Torts committed Abroad ... ... ... ... 42 
 
 Chapter V. 
 
 OF PERSONAL DISABILITY TO SUE AND TO 
 BE SUED FOR TORT. 
 
 Art. 15. Who may sue ... ... ... ... ... 44 
 
 ., 16. Who may be sued for a Tort ... ... ... 45 
 
 Chai'IER VI. 
 
 LIABILITY FOR TORTS C0M:\IITTED BY OTHERS. 
 
 Section I. — Liahility ok Hr;<p.ANi) for Torts of Wife. 
 Art. 17. Wife's Ante-nuptial and Post-nuptial Torts ... 48
 
 Table of Contents. xiii 
 
 Sectiuii [[. — LiAniLirv von Torts of Aoexts, Skkvaxts, 
 AM) Contractors. 
 
 PAGE 
 Art. 18. QidfacUperaJiuinfacitijerxe ... ... ••• -i'J 
 
 „ 1<». Ratification of Tort committed by an Agent ... 50 
 
 „ 20. Unauthorised Delegation by Agent 50 
 
 „ 21. Liability for Contractors and other Agents ... 52 
 
 „ 22. Increased Liability where the Agent is a Servant 56 
 
 Section III. — Liabilitv to Servants eor Injuries 
 CAUSED Hv Fellow-Servants. 
 
 (1) Gimnmn Lair Lidhlliti/. 
 
 Art. 23. Greneral Immunity ... ... ... ••• ••• ^^^ 
 
 ,, 24. Volunteer Servants... 
 
 70 
 
 (2) Under EinjiloyerM LiabiUti/ Art, 1880. 
 Art. 25. Epitome of Act ... ... ••• ••• ••• 71 
 
 Section IV. — LtAiuLurv ov Partners for each 
 other's Torts. 
 
 Art. 26. Statutory Rule 75 
 
 Chapter VII. 
 OF THE LIMITATION OF ACTIONS FOR TORT. 
 
 Section I. — LiJirrATioN hv the Statutes of 
 Lijutation. 
 
 Art. 27. Commencement of Period ... ... ... ••• '' 
 
 „ 28. Continuing Torts ''^- 
 
 „ 29. Disability 83 
 
 Sertion //.—Public Authorities Protection Act, 1894. 
 
 Art. 30. Special Limitation in favour of Public Officers and 
 
 Authorities ... ... ... ... ••• 84
 
 xiv Table of Contents. 
 
 Chapter VIII. 
 OF DAMAGES IX ACTIONS FOE TORT. 
 
 PAGE 
 
 Art. 31. Damages for Personal Injury ... ... ... 86 
 
 32. Damages for Injury to Property ... ... ... 88 
 
 33. Presumption of Damage against a Wrongdoer ... 'JO 
 
 34. Consequential Damages ... ... ... ... 'Jl 
 
 35. Prospective Damages ... ... ... ... 93 
 
 3(3. Aggravation and Mitigation ... ... ... 95 
 
 37. Joint Tort-feasors 98 
 
 Chapter IX. 
 
 OF INJUNCTIONS TO PREVENT THE CON- 
 TINUANCE OF TORTS. 
 
 Art. 38. Injuries remediable by Injunction... ... ... 100 
 
 „ 39. Threatened Injury 105 
 
 ,, 40. Public Convenience does not justify the Con- 
 tinuance of a Tort ... ... ... ... 106 
 
 ,, 41. Mandatory Injunctions ... ... ... ... 107 
 
 ,, 42. Delay in seeking Relief ... ... ... ... 109 
 
 Chapter X. 
 
 THE EFFECT OF THE DEATH OR BANKRUPTCY 
 OF EITHER PARTY. 
 
 Art. 43. Death generally destroys the Right of Action ... 110 
 „ 44. Effect of Bankruptcy 112 
 
 PAKT II. 
 OF RULES RELATING TO PARTICULAR TORTS. 
 
 Chapter I. 
 
 OF DEFAMATION. 
 
 .\i;r. 45. Detinitions of Libel and Slander ... ... ... 115 
 
 „ 46. What is Defamatory H'j 
 
 „ 47. Special Damage essential to Action for Slander ... 121
 
 Table of Contents. 
 
 XV 
 
 Ai:r. 48. Publication ... 
 
 4'.l. Justification 
 
 50. Malice and Privilege 
 
 51. Repeating Libel or Slander 
 
 ,, 52. Libels by Newspaper Proprietors 
 
 53. Limitation ... 
 
 PAGE 
 126 
 
 128 
 130 
 137 
 1 1'A) 
 139 
 
 Chaptek II. 
 OF MALICIOUS PROSECUTION. 
 
 Art. 54. Definition 
 
 55. Prosecution by the Defendant 
 
 56. Want of Reasonable and Probable Cause 
 
 57. Malice 
 
 58. Failure of the Prosecution 
 5'J. Damage 
 
 140 
 140 
 142 
 144 
 146 
 147 
 
 Chaptek III. 
 OF MAINTENANCE. 
 
 Akt. 60. Definition 
 
 14'J 
 
 Chapter IV. 
 OF SEDUCTION. 
 
 Ai;t. 61. General Rule 152 
 
 62. Relation of Master and Servant in ordinary 
 
 Actions for Seduction ... ... ... ... 153 
 
 „ 63. Misconduct of Parent ... ... ... ... 155 
 
 „ 64. Damages ... ... ... ... ... ... 156 
 
 65. Limitation ... ... ... ... ... ... 157 
 
 Chapter V. 
 OF DECEIT OR FRAUD. 
 
 Aki'. 66. Definition of Fraud ... ... ... ... 158 
 
 „ 67. When an Action will lie for Fraudulent State- 
 ments 160 
 
 „ 68. There must be active Fraud I'i6 
 
 ,, 6y. Limitation 1 '>S
 
 Table of Contents. 
 
 Chaptkk YI. 
 OF ILLEGAL COERCION. 
 
 Art. 70. General Rules 
 
 PAGE 
 
 11)9 
 
 Ak 
 
 Chapter VII. 
 OF NEGLIGENCE. 
 
 T. 71. Definition 
 
 72. Contributory Negligence 
 
 73. Proximate Cause 
 
 74. Onus of Proof 
 
 75. Duties of Judge and Jury 
 
 76. Limitation ... 
 
 77. Actions by Personal Representatives of Persons 
 killed by Torts ... 
 
 176 
 184 
 187 
 189 
 190 
 192 
 
 192 
 
 Ch.\pter VIII. 
 OF NUISANCE. 
 
 Art. 78. Description of Nuisances ... 
 
 195 
 
 Section I. — Of Private Dam.a.CxE from Public Nuisance. 
 Art. 79. General Rule 197 
 
 Section II. — Of Private Nulsances to Corporeal 
 Hereditaments. 
 
 Art. 80. General Liability 
 
 ,, 81. Reasonableness of Place 
 
 200 
 204 
 
 Section III. — RuLEi^ Applicable to Public and Private 
 Nuisances. 
 
 Art. 82. Plaintiff coming to the Nuisance ... ... ... 206 
 
 „ 83. How far Right to commit a Nuisance can be 
 
 acquired ... ... ... ... ... ... 206 
 
 „ 84. Liability for Nuisances created by Ruinous 
 
 Premises ... ... ... ... ... ... 210
 
 Table of Contents. xvii 
 Section IV. — XuiSAXCES TO Incorporeal Hekkditamexts. 
 
 PAGE 
 Art. 85. Disturbance of Right of Support for Land without 
 
 Buildings ... ... ... ... ... ... 212 
 
 86. Disturbance of Support of Buildings ... ... 21(> 
 
 87. Disturbance of Right to Light and Air ... ... 21H 
 
 88. Disturbance of Water Rights 224 
 
 89. Disturbance of Private Rights of Way ... ... 227 
 
 90. Disturbance of Rights of Common ... ... 230 
 
 91. Disturbance of Rights of Fishery 2;-53 
 
 92. Disturbance of Ferries ... ... ... ... 23() 
 
 93. Remedy for Nuisances by Abatement ... ... 2.')7 
 
 94. Remedy of Reversioners for Nuisances ... ... 240 
 
 95. Limitation 240 
 
 Chapter IX. 
 
 OF TORTS FOUNDED OX THE DIRECT IXFRIX^^E- 
 MEXT OF PRIVATE RIGHTS. 
 
 Sectio/i I. — Trespass to the Person. 
 
 Art. 9G. General Liability for Trespass to the Person ... 241 
 
 97. Definition of Assault ... ... ... ... 242 
 
 98. Definition of Battery 243 
 
 99. Definition of False Imprisonment ... ... 245 
 
 100. Justification of Trespass to the Person 245 
 
 101. General Authority of Judicial Officers of Superior 
 Courts to Imprison ... ... ... ... 247 
 
 102. Prima facie Jurisdiction sufficient to excuse 
 Judicial Officer of Inferior Court 249 
 
 103. Conviction must be set aside ... ... ... 250 
 
 104. Power to Imprison for Contempt of Court ... 251 
 
 105. Power of Magistrates to Imprison ... ... 252 
 
 lOG. Arrest by Constables and Private Per.sons ... 252 
 
 107. Arrest for Misdemeanor ... ... ... ... 255 
 
 108. Institution of Criminal Proceedings endangers 
 right of Action ... ... ... ... •■• 256 
 
 109. Amount of Damages ... ... ... ... 257 
 
 110. -Limitation 258
 
 XVlll 
 
 Table of Contents. 
 
 Section II. — Of Trespass to Land and Dispossession. 
 Sub-section (1). — Of Trespass Qiiare Clausum Fregit. 
 
 Art. 111. Definition ... 
 
 ,, 112. Tres'passers ab initio 
 
 ,, 113. Possession necessary to maintain an Action for 
 
 Trespass 
 
 „ 114. Trespasses by Joint Owners 
 
 ,, 115. Continuing Trespasses 
 
 116. Limitation ... 
 
 PAGE 
 
 258 
 261 
 
 261 
 263 
 263 
 264 
 
 Sub-section (2). — Of Dispossession. 
 
 Art. 117. Definition ... 
 
 „ 118. Onus of Proof of Title ... 
 ,, 119. Character of Claimant's Estate 
 „ 120. Limitation ... 
 
 121. Commencement of Period of Limitation 
 
 265 
 265 
 266 
 267 
 268 
 
 Section III. — Of Trespass to and Conversion of 
 Chattels. 
 
 Art. 122. General Eule 
 
 ,, 123. Possession necessary to maintain an Action of 
 
 Trespass 
 ,, 124. Trespasses by Joint Owners 
 ,, 125. Trespassers ab initio 
 „ 126. Remedy by Recaption 
 ,, 127. Remedy by ordinary Action 
 „ 128. Remedy by Action of Replevin 
 
 „ 129. Waiver of Tort 
 
 ,, 130. Recovery of Stolen Goods 
 131. Limitation ... 
 
 269 
 
 273 
 276 
 276 
 
 277 
 277 
 278 
 279 
 280 
 280 
 
 INDEX.
 
 TABLE OF GASES CITED. 
 
 A. 
 
 PAGE 
 
 A. r. B., 2i L. R. Ir. 234 : 16 Cox, 566 30 
 
 Abrahams r. Deakin. [1891] 1 Q. B. 516 : 55 J. P. 212 ; 60 L. J. 
 
 Q. B. 288 ; 63 L. T. 690 ; 39 W. K. 183 61 
 
 Abrath r. North Eastern Rail. Co., 11 App. Gas. 247 ; 50 J. P. 659 ; 
 
 55 L. J. Q. B. 457 ; 55 L. T. 63 46, 142, 145 
 
 Adamson r. Jervis, 4 Bin?. 66 ; 5 L. J. (O.S.) C. P. ^]>^ ; 12 Moore 
 
 C. P. 241 ; 29 R. R. 503 99 
 
 Ajello v. Worslev. [1898J 1 Ch. 274 ; 67 L. J. Cli. 172 ; 77 L. T. 
 
 783 ; 46 W.'R. 245 161 
 
 Alabaster r. Harness, [1895] 1 Q. B. 339 ; 64 L. J. Q. B. 76 ; 14 R. 
 
 54; 71 L. T. 740 ; 43 W. R. 196 150 
 
 AUlin r. Latimer, Clark & Co., [1894] 2 Ch. 437 ; 63 L. J. Ch. 601 ; 
 
 8 R. 3.52; 71 L. T. 119; 42 W. R. 453 220 
 
 Aldred v. Constable, 6 Q. B. 370 ; 8 Jur. 956 269 
 
 Alexander c. Jenkins, [1892] 1 Q. B. 797 ; 56 J. P. 452 ; 61 L. J. 
 
 Q. B. 634 : 66 L. T. 391 ; 40 \V. R. 546 126. 
 
 AUbut (-.General Coundl. etc.. 23 Q. B. D. 400 ; 54 J. P. 36 ; 37 W. R. 
 
 771 ; 58 L. J. Q. B. 606 ; 61 L.T.585 134 
 
 Allen r. Flood, [1898] A. C. 1 ; 62 J. P. 595 ; 67 L. J. Q. B. 119 ; 
 
 77L. T. 717; 46 W. R. 258 22,171,175 
 
 r. New Gas Co., 1 Ex. D. 251 ; 45 L. J. Ex. 668 ; 34 L. T. 
 
 541 64 
 
 c. Taylor, 16 Ch. D. 355 ; 50 L. J. Ch. 178 220 
 
 r. Woods, 68 L. T. 143 ; 4 R. 249 267 
 
 Ambler i: Gordon, [1905] 1 K. B. 417 ; 74 L. J. K. B. 185 ; 92 L. T. 
 
 96 ; 53 W. R. 300 223 
 
 Anderson v. Goirie, [1895] 1 Q. B. 668 ; 14 R. 79 : 71 L. T. 382 ... 248 
 
 i: ( )ppenheimer, 5 Q. B. D. 602 ; 49 L. J. Q. B. 708 ... 203 
 
 r. Radcliffe, 29 L. J. Q. B. 128 ; El. B1.& El. 806 ; 6 Jur. 
 
 (N.s.) 578 ; 1 L. T. 487 : 8 W. R. 283 262 
 
 Andrews r. Nott-Bower. [1895] 1 Q. B. 888 ; 59 J. P. 420 ; 64 L. J. 
 
 Q. B. 536 : 14 R. 404 ; 72 L. T. 530 ; 43 W. R. 582 134 
 
 An^lo-Italian Bank v. Davies, 9 Ch. 1).275 ; 47 L. J. Ch. 833 ; 39 L.T. 
 
 "244;27W. R. 3 ... : 104 
 
 Angus }-. Clifford, [1891] 2 Ch. 449 ; 60 L. J. Ch. 443 ; 65 L. T. 274 ; 
 
 39 W. R. 498 163 
 
 AjhiUo (Owners of) r. Port Talbot Co., [1891] A. C. 499 ; 55 J. P. 
 
 820 ; 61 L. J. P. 25 ; 65 L. T. 590 ; 7 Asp. M. C. 115 182 
 
 Applebee r. Percy. L. R. 9 C. P. 647 ; 43 L. J. C. P. 365 ; 30 L. T. 
 
 785 ; 22 W. R. 704 180 
 
 Appleby v. Franklin. 17 Q. B. I). 93 ; 50 J. P. 359 ; 55 L. J. Q. B. 
 
 129 ; 54 L. T. 135 ; 34 W. R. 231 30 
 
 Arbuckle r. Taylor. 2 Dow. P. C. 160 76 
 
 Arcedeckne r. Kelk, 2 Gife. 683 ; 5 Jur. (x.s.) 114 ; 7 W. R. 194 ... 224 
 
 b 2
 
 XX Table of Cases Cited. 
 
 PAGE 
 Argentino, The, 14 App. Cas. 519 ; 57 L. J. Adm. 17 : 61 L. T. 706 ; 
 
 6 Asp. M. C. -133 93 
 
 Arkwright v. Newbold, 17 Ch. D. 301 ; 50 L. J. Cli. 872 ; 44 L. T. 
 
 393 ; 29 W. K. 655 166 
 
 Armory r. Delamirie, 1 Str. 504 ; 1 Sm. L. C. 343 90, 275 
 
 Ashby r. White, 2 Lord Raymond. 938 ; 3 id. 320 ; 1 Sm. L. C. 
 
 (11th ed.), 251 ; 14 How. St. Tr. 695 12 
 
 Asher r. Whitlock, L. R. 1 Q. B. 1 ; 35 L. J. Q. B. 17 ; 11 Jur. 
 
 (N.S.) 925 ; 13 L. T. 254 ; 14 W. R. 26 260, 265,266 
 
 Ashton r. Stock, 6 Ch. D. 719 ; 25 W. R. 862 268 
 
 Aslatt r. Corporation of Southampton, 16 Ch. D. 143 ; 45 J. P. Ill : 
 
 50 L. J. Ch.31 ; 43 L. T. 464 ; 29 W. R. 117 105 
 
 Aspden r. Seddon, L, R. 10 Ch.394 ; 44 L. J. Ch. 359 : 32 L. T. 415 ; 
 
 23W. R. 580 213 
 
 Atkinson r. Newcastle Water Co., 2 Ex. D. 441 ; 46 L. J. Ex. 775 ; 
 
 36 L. T. 761 : 25 W. R. 794 32 
 
 Att.-Gen. r. Birmingham Town Council, 6 W. R. 811 ; 4 K. & J. 
 
 528 198 
 
 V, Brighton, etc. Supply Association. [1900] 1 Ch. 276 ; 
 
 69 L. J. Ch. 204 ; 81 L. T. 762 ; 48 W. R. 314 ... 196 
 
 v. Cole, [1901] 1 Ch. 205 ; 65 J. P. 88 ; 70 L. J. Ch. 148 ; 
 
 83 L. T. 725 205 
 
 ■ — r. Conduit Colliery Co., [1895] 1 Q. B. 301 ; 59 J. P. 70 ; 
 
 64 L. J. Q. B. 207 ; 15 R. 267 ; 71 L. T. 777 ; 
 
 43 W. R. 366 213, 215 
 
 r. Dorking Union, 20 Ch. D. 595 ; 51 L. J. Ch. 585 ; 
 
 46 L. T. 573 ; 30 W. R. 579 104 
 
 . — V. Emerson, [1891] A. C. 649 ; 55 J. P. 709 : 61 L. J. 
 
 Q. B. 79 ; 65 L. T. 564 235, 236 
 
 r. Heatley, [1897] 1 Ch. 560 ; 66 L. J. Ch. 275 ; 76 L. T. 
 
 164 ; 45 W. R. 394 19.5, 196, 198 
 
 r. London and North Western Rail. Co., [1900] 1 Q. B. 
 
 78 ; 63 J. P. 772; 69 L. J. Q. B. 2ii ; 81 L. T.649... 107 
 r. Luton Local Board, 5 Jur. (N.s.) 180 198- 
 
 r. jNIayor, etc. of Birmingham, 4 K. & J. 528 ... ... 106 
 
 r. Mayor of Manchester, [1893] 2 Ch. 87 ; 57 J. P. 343 ; 
 
 62 L. J. Ch. 459 ; 3 R. 427 ; 68 L. T. 608 : 41 W. R. 
 
 4.59 106,-208 
 
 V. Nottingham Corporation, [1904] 1 Ch. 673 : 68 J. P. 
 
 125 ; 73 L. J. Ch. 512 ; 90 L. T. 308 ; .52 W. R. 281 ; 
 
 2 L. G. R. 698 ; 20 T. L. R. 257 106 
 
 r. Wright. [1897] 2 Q. B. 318 ; 66 L. J. Q. B. 834 : 
 
 77 L. T. 295 ; 46 W. R. 85 218 
 
 Augusta, The, 6 Asp. M. C. 58. 161 ; 57 L. T. 326 43 
 
 Australian Newspaper Co. r. Bennett, [1894] A. C. 284 ; 58 J. P. 
 
 604 : 63 L. J. P. C. 105 ; 6 K. 481 ; 70 L. T. 597 117 
 
 Avnslev r. Glover. L. R. 18 Eq. 544 ; 43 L. J. Ch. 777 ; 31 L. T. 
 
 219; 23 W. R. 147 224 
 
 Ayre v. Craven. 2 Ad. & Ell. 2 ; 4 N. & M. 220 ; 4 L. J. K. B. 35 : 
 
 41 R. R. 359 125 
 
 B. 
 
 Backhouse r. Bononii. 9 II. L, Cas. 503 ; 34 L. .1. Q. B. ISl ; 7 Jur. 
 
 (K.S.) 809 ; 4 L. T. 754 ; 9 W. R. 769 80,213 
 
 Baily & Co. r. Clark. Son, and Moreland, [1902] 1 Ch. 649; 
 
 71 L, J, Ch. 396; 86L. T. 309; .50 W. R. 511 225. 
 
 I
 
 Table of Cases Cited. xxi 
 
 PAGE 
 
 Baldwin v. Casella, L. R. 7 Ex. 325 ; 41 L. J. Ex. I<i7 : 2(i L. T. 707 ; 
 
 21 W. K. 1(5 ISO 
 
 Ball, jEx parte, Shepherd, i?^', 10 Ch. D. 667 ; 48 L. J. Bkcy. .t7 ; 
 
 27 W. R. 568; 40L. T. 141 ; 14 CoxC. C. 237 28.30 
 
 V. Ray, L. R. 8 Cb. 471 ; 28 L. T. 346 ; 21 W. R. 282 ... 201.205 
 
 Ballard r. Dyson, 1 Taunt. 279 ; 9 R. K. 770 228 
 
 r. Tomlinson. 29 Ch. D. 115 ; 49 J. P. 692 ; 54 L. J. Ch. 
 
 4.54 ; 52 L. T. 942 ; 33 W. R. 533 225. 227 
 
 Bamford r. Turnley. 31 L. J. Q. B. 286 ; 3 B. & S. 62 ; 9 Jur. (x.s.) 
 
 377; low. R. 803 204 
 
 Barber r. Penley, [1893] 2 Ch. 447 ; 62 L. J. Ch. 623 ; 3 R. 489 ; 
 
 68 L. T. 662 201 
 
 Barker r. Faulkeiier, W. N. (1898) 69 ; 79 L. T. 24 236 
 
 r. Furlong-, [1891] 2 Ch. 172 ; 60 L. J. Cb. 368 ; 64 L. T. 
 
 411 : 39 W. R. 621 275 
 
 Barley r. Walford, 9 Q. B. 197 : 15 L. J. Q. B. 369 ; 10 Jur. 917 ; 
 
 72 R. K. 218 160 
 
 Barnardiston r. Chapman, 4 East, 121 ; Bui. N. P. 34 276 
 
 Barnes v. Ward, 9 C. B. 392 ; 2 Car. & K. 661 ; 19 L. J. C. P. 195 ; 
 
 14 Jur. 334 198 
 
 Barratt r. Kearns, [1905] 1 K. B. 504 ; 74 L. J. K. B. 318 ; 92 L. T. 
 
 2.55 ; 53 W. R. 356 : 21 T. L. R. 212 133 
 
 Bartonshill Coal Co. r. Reid, 4 Jur. (x.s.) 767 : 3 :\Iacq. H. L. Ca. 
 
 266;6W. R. 664 65 
 
 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 ; 36 L. J. Ex. 
 
 147; 16L. T. 461 ; 15 W. R. 877 59,165,166 
 
 Basebe r. Matthews, L. R. 2 C. P. 684 ; 36 L. J. M. C. 93 ; 16 L. T. 
 
 417 ; 15 W. R. 839 146 
 
 Bass r. Gregory, 25 Q. B. D. 481 ; 55 J. P. 119 ; 59 L. J. Q. B. 574 : 
 
 219, 223 
 
 Batchelor y. Eortescue, 11 Q. B. 1). 474; 49L. T. 644 183 
 
 Battersea (Lord) r. Commissioners of Sewers, [1895] 2 Ch 708 ; 
 
 59 J. P. 728 ; 65 L. J. Ch. 81 ; 18 R. 795 ; 73 L. T. 116 ; 
 
 44W. R. 124 221 
 
 Battishill r. Reed, 25 L. J. C. P. 290 : 18 C. B. 696 203 
 
 Baxter r. Taylor, 4 B. & Ad. 72 ; 1 N. & M. 13 ; 2 L. J. K. B. 65 ; 
 
 38 R. R. 227 240 
 
 Bayley r. Manchester, etc. Rail. Co., L. R. 7 C. P. 415 ; 41 L.J. C. P. 
 
 278 61 
 
 Bayliss r. Fisher, 7 Bing. 153 ; 33 R. R. 407 98 
 
 Beard v. London General (Jmnibns Co., [1900] 2 Q. B. 530 ; 69 L. J. 
 
 Q. B. 895 ; 83 L. T. 362 ; 48 W. R. 658 59 
 
 Beasley r. Roney, [1891] 1 Q. B. 509 ; 55 J. P. 566 ; 60 L. J. Q. B. 
 
 408 ; 65 L. T. 153 ; 39 W. R. 415 44 
 
 Beaver r. Mayor, etc. of Manchester. 26 L. J. Q. B. 311 ; 8 El. & Bl. 
 
 44 ; 4 Jur. (X.S.) 23 260 
 
 Beck r. Pierce, 23 Q. B. D. 316; 54 J. P. 198 ; 58 L. J. Q. B. 516 ; 
 
 61 L. T. 448 ; 38 W. R. 29 49 
 
 Beckham r. Drake. 2 H. L. Cas. 579 ; 13 Jur. 921 112 
 
 Beckwith v. Philby, 6 B. & C. 635 ; 9 1). & R. 487 ; 5 L. J. (O.s.) 
 
 M. C. 132 ; 30 R. R. 484 253 
 
 Bedford r. M'Kowl, 3 Esp. 120 87,156 
 
 Bedingfield r. Onslow, 1 Saund. 322 240 
 
 Belfast Rope Works c. Boyd. 21 L. R. Ir. 560 226 
 
 Bell c. Stone. 1 B. & P. 331 : 4 R. R. 820 117 
 
 licllamv r. Wells, 60 L. J. Ch. 1.76 ; 63 L. T. 635 ; 39 W. R. 158 ... 201 
 Benjamin r. Storr, L. R. 9 C. P. 400 ; 43 L. J. C. P. 162 ; 30 L. T. 
 
 362 ; 22 W. R. 631 13,198
 
 xxii Table of Cases Cited. 
 
 PAGE 
 
 Bennett r. Alcott, 2 T. R. 166 154 
 
 Bernina, The, Mills r. Armstrong, 13 App. Cas. 1 ; 52 J. P. 212; 
 57 L, J. P. 65 ; 58 L. T. 423 ; 36 W. K. 870 : 6 Asp. M. C. 257 : 
 
 186, 187 
 Berringer r. Great Eastern Rail. Co., 4 C. P. D. 163 ; 48 L. J. C. P. 
 
 400 ; 27 W. R. 681 13 
 
 Betts V. Gibbins. 2 A. & E. 57 ; 4 N. & M. 64 ; 4 L. J. K. 15. 1 ; 
 
 41R. R;381 9» 
 
 T. Thompson, L. R. 6 Cli. 732 ; 2.5 L. T. 363 ; 19 W. R. 1100 : 232 
 
 Bird V. Holbrook. 4 Bing. 628 ; 1 Moo. & P. 607 ; 6 L. J. (O.S.) C.P. 
 
 146; 29 R. R. 657 183 
 
 r. Jones, 7 Q. B. 743 ; 15 L. J. Q. B. 82 ; 9 Jur. 870 : 68 R. R. 
 
 564 245 
 
 Birmingham Corporation r. Allen, 6 Ch. \). 284 ; 46 L. J. Ch. 673 : 
 
 37L. T. 207 ; 25 W. R. 810... 213,215 
 
 Black V. Christchurch Finance Co., [1894] A. C. 48 : 58 J. P. 332 : 
 
 63 L. J. P. C. 32 ; 6 R. 394 ; 70 L. T. 77 55 
 
 Blackman r. Bryant, 27 L. T. 491 124 
 
 Blades r. Higgs, 10 C. B. (K.S.) 713 : 30 L. J. C. P. 347 : 7 Jur. (n.s.) 
 1289 ; 4 L. T. 551 ; affirmed 11 H. L. Cas. 621 : 20 C. B. (N.s.) 
 214 ; 34 L. J. C. P. 286 ; 11 Jur. (x.s.) 701 : 12 L. T. 615 : 
 
 13 W. R. 927 247.277 
 
 Blair r. Dcakin, 57 L. T. 522 : 52 J. P. 327 98 
 
 Blake r. Lanyon, 6 T. R. 221 ; 3 R. R. 162 1.52 
 
 r. Midland Rail. Co., 18 Q. B. 93 ; 21 L. J. Q. B. 233 ; 16 Jur. 
 
 562 92 
 
 Bliss %: Hall, 4 Bing. N. C. 183 ; 5 Scott, 500 ; 6 D. P. C. 442 ; 
 
 1 Am. 19 ; 7 L. J. C. P. 122 ; 2 Jur. 110 ; 44 R. R. 697 ... 206 
 
 BUssett r. Hart, Willes, 508 237 
 
 Bloodworth r. Gray, 7 Man. & G. 334 ; 8 Sco. N. R. 9 ; m R. R. 
 
 720 121,124 
 
 Bloomfield f. Johnston, 8 Ir. R. C. L. 97 234 
 
 Blount r. Layard, [18911 2 Ch. 681 n 234 
 
 Blyth V. Birmingham Water Co., 25 L. J. Ex. 212 ; 11 E.x. 781 ; 
 
 2 Jur. (N.s.) 333 ; 4 W. R. 294 176, 178 
 
 V. riadgate, [1891] 1 Ch. 337 ; 60 L. J. Ch. 66 ; 63 L. T. 546 ; 
 
 39 W. R. 422 76 
 
 Boden r. Roscoe, [1894] 1 Q. B. 608 ; 58 J. P. 368 ; 63 L. J. Q. B. 
 
 767; 10 R. 173; 70L. T. 450; 42 W.R. 445 264 
 
 Bolton r. Bolton, 11 Ch, D. 968; 48 L. J. Ch. 467; 40 L. T. 
 
 582 228 
 
 Bonnard r. Perryman. [1891] 2 Ch. 269 ; 60 L.J. Ch. 617 : 65 L.T. 
 
 506 ; 39 W. R. 435 101,104.105 
 
 Bonner r. Great Western Rail. Co., 24 Ch. I). 1 : 47 J. P. 580; 
 
 48 L.T. 619: 32 W. R. 190 107 
 
 Bonomi r. Backhouse, E. B. & E. 622 215 
 
 Booth V. Arnold, [1895] 1 Q. B. 571 ; 59 J. P. 215 ; 64 L. J. Q. B. 
 
 443 ; 14 R. 326 ; 72 L. T. 310 ; 43 W. li. 360 121, 126 
 
 Borlick r. Head, 50 J. P. 327 ; 34 W. R. 102 ; 53 L. T. 909 ... 72 
 Bound r. Lawrence, [1892] 1 Q. B. 226 ; 56 J. P. 118 ; 61 L. J. M. C. 
 
 21 ; 65 L. T. 844 ; 40 W. R. 1 72 
 
 Bowen r. Anderson, [1894] 1 Q. B. 164 : 10 R. 47 ; 42 W. R 236... 210 
 r. Hall, 6 Q. B. 1). 333 ; 45 J. P. 373 ; 50 L. J. Q. B. 305 ; 
 
 44 L. T. 75 ; 29 W. R. 367 170 
 
 Bower v. Peate, 1 Q. B. I). 321 ; 45 L. J. Q. B. 446 : 35 L. T. 321... 55 
 
 Bowyer r. Cook, 4 C. B. 236 264 
 
 Box )'. Jubb, 4 Ex. Div. 76; 48 L. tl. Ex. 117; 41 L.T. 97; 
 
 27W. R. 415 18.20,202
 
 Table of Cases Cited. xxiii 
 
 Boxsius r. Goblet Ereres, [1894] 1 Q. B. 842 ; 58 J. P. G70 ; 
 
 63 L. J. Q. B. 401 ; 9 R. 224 ; 70 L. T. 368 ; 42 W. R. 392 ... 127 
 Bojle V. Tamlvii, (5 B. & C. 329 ; 9 Dow. & R. 430 ; 5 L. J. (O.s.) 
 
 K. B. 134 ; 30 R. R. 34.5 259 
 
 Bradlnirn r. JMorris, 3 Ch. D. 812 228 
 
 Bradford Corporation t: Ferrand, [1902] 2 Ch. 655 ; 67 ,). P. 21 ; 
 
 71 L. J. Ch. 859 ; 87 L. T. 388 ; 51 W. R. 
 
 122 225.226 
 
 r. Pickles, [1895] A. C. 587 ; 60 J. P. 3 ; 
 
 64 L. J. Ch. 759 ; 11 R. 286 ; 73 L. T. 3.53 ; 44 W. R. 190 : 196, 197. 
 
 202, 226 
 Bradlaugh v. Newdigate, 11 Q. B. D. 1 ; 52 L. J. Q, B. 454 ; 31 W. R. 
 
 792 149,150 
 
 Bradsimw r. Lancashire and Yorkshire Rail. Co., L. R. 10 C. P. 189 ; 
 
 44 L. J. C. P. 148 ; 31 L. T. 847 ; 23 W. R. 310 194 
 
 Bramley r. Chesterton, 2 C. B. (N.S.) 605; 27 L. J. C. P. 23; 
 
 3 Jur. (N.s.) 1144: 5 W. R. 690 i»:^ 
 
 Brassino-ton r. Llewellyn, 27 L. J. Ex. 297 267 
 
 Brewer >. Dew, 11 M. & W. 625 ; 1 D. & L. 383 : 12 L. J. Ex. 448 : 
 
 7 Jur. 953 : 63 R. R. 690 98, 112 
 
 V. Si)arrow. 7 B. & C. 310 ; 1 Man. & R. 2 : 6 L. J. (o.s.) 
 
 K.B.I • 279 
 
 Brinsmead v. Harrison. L. R. 6 C. P. 584 ; 40 L. J. C. P. 2S1 ; 
 
 24 L. T. 798 ; 19 W. R. 956 278 
 
 r. , L. R. 7 C. P. 547 ; 41 L. J. C. P. 19(> : 
 
 27 L. T. 9i» : 20 W. R. 784 98 
 
 British Mutual Banking Co. r. Charnwood, 18 Q. B. 1). 714 ; 52 J. P. 
 
 150 ; 56 L. J. Q. B. 449 ; 57 L. T. 833 ; 35 W. R. 590 165 
 
 British S. Africa Co. r. The Companhia de Mu(^ambique. [18i)3] 
 
 A. C. 602 : 63 L. J. Q. B. 70 ; 6 R. 1 : 69 L. T. 604 43 
 
 Britton r. South Wales Rail. Co., 27 L. J. Ex. 355 87 
 
 Brocklebank r. Thompson, [1903] 2 Ch. 344 : 72 L. J. Ch. 626 : 
 
 89 L. T. 209 227 
 
 Bromage v. Prosser, 4 B. & C. 247 : 6 Dow. & R. 29() ; 1 Car. cV: 1'. 
 
 475 : 3 L. J. (O.S.) K. B. 203 ; 24 R. R. 241 21 
 
 Broomfield v. Williams, [1897] 1 Ch. 602 : 66 L. J. Ch. 305 : 
 
 76 L. T. 243 ; 45 W. R. 469 220 
 
 Brown r. Alabaster. 37 Ch.D. 490 ; 57 L. J. Ch. 255 ; 58 L.T. 2(55 ; 
 
 36W. R. 155 229 
 
 r. Boorman. 11 CI. & F. 1 ; 3 Q. B. 511 ; 65 R. R. 1 ... 1 
 
 r. Hawkes, [1891] 2 Q. B. 718 ; 55 J. P. 823 ; 61 L. J. Q. B. 
 
 151 ; 65 L. T. 108 144,145 
 
 r. Robins. 4 H. & N. 186 ; 28 L. J. Ex. 250 216 
 
 Brunsden r. Humphrey. 14 Q. B. D. 141 ; 49 J. P. 4 : 53 L.J. Q. B. 
 
 476 ; 51 L. T. ,529 ; 32 W. R. 944 95 
 
 Bryant c. Lefever, 4 C. P. D. 172 : 48 L. J. C. P. 380 : 40 L. T. 
 
 579 ; 27 W. R. .592 219,222 
 
 Buckley v. Buckley, [1898] 2 Q. B. 608 ; 67 L. J. Q. B. 953 ... 202 
 
 Bullew r. Langdon, Cro. Eliz. 876 ... ... ... 231 
 
 Bulli Coal Mining Co. v. Osborne, [1899] A. C. 351 ; 68 L. J. P. C. 
 
 49; 80 L. T. 430 ; 47 W. R. 545 80 
 
 Burnard r. Haggis, 14 C. B. (N.S.) 45 ; 32 L. J. C. P. 189 ; 9 Jur. 
 
 (N.s.) 1325 ; 8 L. T. 320 : 11 W. R. 644 45 
 
 Burrows r. Rhodes, [1899] 1 Q. B. 816 ; 63 J. P. 532 : 68 L. J. Q. P.. 
 
 545 ; 80 L. T. 591 ; 48 W. R. 13 l'>-t 
 
 Burton r. Hughes, 2 Bing. 173 : 9 Moore. 334 : 3 L. J. C. P. 213 ... 276 
 Butcher r. Butcher, 7 B. & C. 399 ; 1 Man. .>c R. 220 : 6 L. J. (O.S.) 
 
 K. B. 51 ; 31 R. R. 237 262
 
 xxiv Table of Cases Cited. 
 
 PAGE 
 Butler r. Manchester, etc. Rail. Co.. 21 Q. B. D. 207 ; h'l J. P. 611 : 
 
 o7L. J. Q.B. 56-1 ; 60L. T.S9; 36 W.R. 726 246 
 
 Butt r. Imperial Gas Co.. L. R. 2 Ch. 158 ; 16 L. T. 820 ; 1.5 W. R. 
 
 92 12 
 
 Butterfield r. Forrester. 11 East. 60 ; 10 R. R. 433 185, 187 
 
 Byne r. Moore, 5 Taunt. 187: 1 Marsh. 12 1-47 
 
 Byrne v. Boadle, 2 H. & C. 722 ; 33 L. J. Ex. 13 : 1) L. T. 450 ; 
 
 19 w R '^7') 189,190 
 
 c. 
 
 Cakill r. Fitzgibbon, 16 Ir. L. R. 371 253 
 
 Calder i;. Halket, 3 Moo. P. C. C. 28 ; 50 R. R. 1 249 
 
 Caledonian Rail. Co. v. Mnlholland, [1898] A. C. 216; 67 L.J. 
 
 P. C. 1 ; 77 L. T. 570 : 46 W. R. 236 176 
 
 Cameron r. Nystrom. [1893] A. C. 308 ; 57 J. P. 550 ; 62 L.J. P. C. 
 
 85 ; 1 R. 362 ; 68 L. T. 772 ; 7 Asp. M. C. 320 67 
 
 Canadian Pacific Rail. Co. v. Parke, [1899] A. C. 535 ; 68 L.J. P. C. 
 
 89; 81 L.T. 127; 48 W.R. 118 208 
 
 Canon r. Rimington, 12 C. B. 1 ; 21 L. J. C. P. 137 268 
 
 Capital, etc. Bank r. Henty, 5 C. P. D. 514 ; 45 J. P. 188 , 49 L. J. 
 
 C. P. 830 ; 43 L. T. 651 : 28 W. R, 
 
 851 119 
 
 r. , 7 App. Cas. 741 : 47 J. P. 214 : 52 L. J. 
 
 Q. B. 232 ; 47 L. T. 662 ; 31 W. R. 157 117,119 
 
 Carlisle (Mayor of) r. Graham, L. R. 4 Ex. 361 ; 38 L. J. Ex. 226 ; 
 
 21 L. T." 133 ; 18 W. R. 318 236 
 
 Carlyon v. Lovering, 1 H. & N. 784 ; 26 L. J. Ex. 251 ; 5 W. R. 
 
 347 227 
 
 Carr r. Clarke, 2 Chit. R. 261 : 23 R. R. 748 154 
 
 . r. Lambert. L. R. 1 Ex. 168 ; 4 H. ct C. 257 : 35 L. J. Ex. 121 ; 
 
 12 Jur. (N.S.) 194 ; 14 L. T. 255 : 14 W. R. 405 231 
 
 Carslake r. ]Mappledoram, 2 T. R. 473 124 
 
 Carter r. Clarke, 78 L. T. 76 73 
 
 V. St. Mary Abbotts, Kensington (Vestry of), (54 J. P. 548 ... 50 
 
 Castrique r. Behrens, 30 L. J, Q. B. 163 ; 3 El. ^i El. 709 ; 7 Jur. 
 
 (N.S.) 1028 ; 4 L. T. 52 146 
 
 Chandler r. Robinson. 4 Ex. 163 ; 19 L. J. Ex. 170 217 
 
 Chaplin (\V. H.) r. Westminster Corporation. [1901] 2 Ch 329; 
 
 65 J. P. 661 ; 70 L. J. Ch. 679 ; 85 L. T. 88 ; 49 W. R. 586 ... 10 
 
 Chapman r. Pickersgill, 2 Wils. IKJ 14 
 
 Charles r. Taylor, 3 C. P. D. 492 ; 38 L. T. 773 ; 27 W. R. 32 ... ()8 
 
 Charleston v. London Tramways Co., 36 W. R. 367 .. 61 
 
 Chasemorc r. Richards. 7 H. L. Cas. 349 : 29 L. J. Ex. 81 ; 5 Jur. 
 
 (X.S.) 873 ; 7 W. R. 685 197.225,226 
 
 Chastey r. Ackland, [1895] 2 Ch. 389 ; 64 L. J. Q. B. 523 : 12 R. 
 
 420 ; 72 L. T. 845 ; 43 W. 11. 627 219 
 
 r. . [1897] A. C. 155 ; 66 L. J. Q. B. 518 : 76 L. T. 
 
 430 219,222 
 
 Chatterton r. Secretary of State for India. [1895] 2 Q.B. 189; 
 
 59 J. P. 596 ; 64 L. J. Q. B. 676 ; 14 R. 504 ; 72 L. T. 858 ... 133 
 Cheshire r. Bailey. [1905] 1 K.B.237; 74 L. J. K. B. 176 ; 92 L.T. 
 
 142 ; 53 W. R. 322 62 
 
 Chinery r. Viall. 5 II. & N. 295 ; 29 L. J. Ex. 180 : 2 L. T. 466 ; 
 
 8 W. R. 629 37 
 
 Christie r. Cowell, Peake, 4 ; 3 R. R. 642 123 
 
 r. Davey, [1893] 1 Ch. 316; 62 L. J. Cli. 439; 3 R. 
 
 •710 202.205
 
 Table of Cases Cited. xxv 
 
 PAGE 
 
 Christopherson c. Bare, 11 Q. B. 477 ; 17 L. J. (^. B. lOil ; 12 .Jur. 
 
 374 ■;• -^ 
 
 Churchill r. Siggers. S El. & Bl. 937 ; 2 C. L. K. 1S<'9 : 23 L. J. Q. B. 
 
 308 ; 18 Jur. 773 ; 2 W. K. 551 •■• ^^^> 
 
 Citv Commissioners of Sewers v. Glasse, L. K, lit Eq. 134 : 44 L.J.Ch. 
 
 ' 129 : 31 L. T. 495 ; 23 W. R. 102 -'-^1 
 
 City of Lincoln. Tlu: 15 P. D. 15 ; 59 L. J. V. & D. 1 ; G2 L. T. 49 ; 
 
 38 W. K. 345 ; G Asp. M. C. 475 ••• -''^ 
 
 City of London Brewery Co. r. Tennant, 9 Ch. App. 212 ; 43 L. J. Ch. 
 
 457 : 29 L. T. 755 : 22 W. R. 172 ■• ■•■ ^-'-^ 
 
 Claridse r. South Staffordshire Tramway Co., [1892] 1 Q. B. 42L ; ^ 
 
 56^J. F. 408 ; 01 L. J. Q. B. .503 ; 66 L. T. 655... ... ... 2.6 
 
 Clark r. Freeman, 11 Beav. 112 ; 17 L. J. Ch. 142 ; 12 Jur 149 104 
 r. Molyneux, 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 37 L. T. 
 
 694 ; 26 W. R. 104 ; 14 Cox C. C. 10 1-^V-- ' '^ 
 
 Clarke c. Army and Navy Co-operative Society, [1903] 1 K. B. l.o-i ; 
 
 78 L. J. K. B. 153 : 88 L. T. 1 . -; ^r !' ' 
 
 Cleary r. Booth, [1893] 1 Q. B. 465 ; 57 J. V. 375 ; 62 L. J. M L. 
 
 87; 5R.263; 68 L. T. 349 ; 41 W. R. 391 ; 17 Cox 0. C.61] ... 24/ 
 Cleather t. Twisden, 28 Ch. D. 340 ; 54 L. J. Ch. 408 ; 52 L. T. 330 : _ 
 
 33W. R. 435 " 
 
 Clement v. Chivis, 9 B. & C. 172 ; 4 M. & R. 127 ; 7 L. J. (o.s.) K. 15. 
 
 189: 32 R. R. 624 ^^' 
 
 Clifford r. Holt. [1899] 1 Ch. 698 ; 63 J. P. 22 ; 68 L. J. Ch. 332 ; ^ 
 
 SOL. T. 48 :"* 
 
 Cobbett t-. Gray, 4 Ex. 744 ; 19 L. J. Ex. 137 -;^^ 
 
 Cocke V. Jennor, Hob. 66 .-,■ 
 
 Cockroft r. Smith, 11 Mod. 43 • -Vi 
 
 - -Cocrgs r. Bernard. 1 Sm. L. C. 177 ; 2 Ld. Raym. 909 ..._ 40, i - < 
 
 Coflard V. Marshall, [1892] 1 Ch. 571 ; 61 L. J. Ch. 26s ; (,b L. T. _ 
 
 248 ; 40 W. R. 473 , r\, -,.;:' 
 
 CoUis r. Laugher, [1894] 3 Ch. 659 ; 63 L. J. Cn. S.,1 ; 8 R. -60 ; 
 
 71 L. T. 226; 43 W.R. 2(12 ., t' t nV " 
 
 ^- Colls V. Home and Colonial Stores, [1904] A. C. 1<9 : /3 i- J- <-»• 
 
 484 : 90 L. T. 687 ; 53 W, R. 30 ; 20 T. L. R. 4..< ...102 219, 22i 
 Colwell V. St. Pancras Borough Council, [1904] 1 Ch. 70/ ; 68 J. P. 
 286 ; 73 L. J. Ch. 275 ; 90 L. T. 153 ; 52 \V. R. 523 ; 2 L. &. R. 
 
 518; 20T. L. R. 236 -^A^ 
 
 Complon V. Richards, 1 Pr. 27 ; 15 R. R. 682... ... ... ■_•• — ^ 
 
 .. Consolidated Co. r. Curtis & Son. [1892] 1 Q. B. 49., ; :>6 J. 1 . •>(.■> ; 
 
 61 L. J. Q. B. 325 ; 40 W. R. 426 2' J 
 
 Cook r. Beal, Ld. Raym. 177 • „ ;" ,,.,•••_. ^ iV " 
 
 r. North :SIetropolitan Tramways Co.. 18 Q. B. iJ. (.s.i ; oj .K i . 
 
 630 ; 56 L. J. Q. B. 309 ; 56 L. T. 448 ; 57 L. T. 476 ; 35 ^^ . R. _^ 
 577 
 
 Cooke r. Wildes, 5 E. & B. 328 ; 3 C. L. R. 1090 ; 24 L. J. Q. L. 
 
 207 ; IJur. (N.s.) 610 ; 3 W. R. 458 ■••,•••. ■] 
 
 Cooper r. Booth, 3 Esp. 144 ; 4 Dougl. 339 ; 1 T. R. .•3.> n. ... I4i 
 
 .. Hubbock, 31 L. J. Ch. 123 ; 30 Beav. 160 ; . .Tnr. (x>.) 
 
 457 : 9 W. R. 352 "l 
 
 r. Marshall, 1 Burr. 259 ; 2 Ken. 1 ; 2 Wils. .5^1 "• ^ ., •" -'^^ 
 
 .. Phibbs. L. R. 2 H. L. 149 ; 16 L. T. 078 ; 15 W- «• lOl^:" ^'^^ 
 r. Shepherd, 3 C. B. 266 ; 4 D. & L. 214 ; 15 L. J. C . P. 23 - ; 
 
 10 Jur. 758 ; 71 R. R. 349 ■■■ ■•• 2-8 
 
 c. Straker, 40 Ch. D. 21 ; 58 L. J. Ch. 26 ; 59 L. T. M9 ; ^^^ 
 
 r.Wilia^;^! a'^ BT672rH L--^- C. P. 219 V !1 J'vr 
 
 598 
 
 274.270
 
 ^ 
 
 xxvi Table of Cases Cited. 
 
 PAGE 
 Corby v. Hill, 4 C, B. (x.s.) 556 ; 27 L. J. C. P. 318 ; 4 Jur. (N.S.) 
 
 512 ; 6 W. R. 575 183 
 
 Cornfuot r. Fowke, 6 M. & W. 858 ; 9 L. J. Ex. 297 ; i Jur. 919 ; 
 
 55 K. R. 655 165 
 
 Cornford r. Carlton Bank, [1899] 1 Q. B. 392 ; 68 L. J. Q. B. 196 ; 
 
 80 L. T. 121 : on appeal, [1900] 1 Q. B. 22 ; 68 L. ,J. Q. B. 1020 ; 
 
 81 L. T. 415 46. 145 
 
 Corporation of London v. Riggs, 13 Ch. D. 798 ; 44 J. P. 345 ; 
 
 49 L. J. Ch. 297 ; 42 L. T. 580 ; 28 W. R. 610 228 
 
 Costar r. Hetherington, 28 L. J. M. C. 198 257 
 
 Coughlin r. Gillison, [1899] 1 Q. B. 145; 68 L. J. Q. B. 147; 
 
 79 L. T. 627 ; 47 VV. R. 113 ISO 
 
 Coulson r. Coulson, 3 T. L. R. 846 105 
 
 Coward r. Baddeley, 28 L.J. Ex. 26J ; 4 H. & N. 478 ; 5 Jur. (N.S.) 
 
 414;7W. R. 466 244 
 
 Cowles V. Potts, 34 L. J. Q. B. 247 ; 11 Jar. (N.S.) 946 ; 13 W. R. 
 
 8.58 136 
 
 Cowley V. Newmarket Local Board, [1892] A.C.34o ; 56 J. P. 805 ; 
 
 62 L. J. Q. B. 65 ; 1 R. 45 ; 67 L. T. 486 199 
 
 Cowling r. Higginson, 4 M. & W. 245 ; 1 U. k. X. 269 ; 7 L. J. Ex. 
 
 265 ; 51 R. R. 555 228 
 
 Cox r. Burbidge, 13 C. B. (N.S.) 430 ; 32 L. J. C. P. 89 ; 9 Jur. 
 
 (N.S.) 970; 11 W. R. 435 180 
 
 r. Glue, 17 L. J. C. P. 162 ; 5 C. B. 533 ; 12 Jur. 185 ... 262 
 
 r. Great Western Rail. Co., 9 Q. B. D. 106 ; 47 J. P. 116 ; 
 
 SOW. R. 816 74 
 
 ?•. Lee, L. R. 4 Ex. 284 ; 38 L.J. Ex. 219; 21 L. T. 178 ... 117 
 
 V. Mousley, 5 C. B. 533 262 
 
 Coxhead r. Richards, 15 L. J, C. P. 278 ; 2 C. B, 569 : 10 Jur. 987 ; 
 
 69 R. R. 530 136 
 
 Creagh r. Gamble, 24 L. R. Ir. 458 2.54 
 
 Crespigny (de) r. Wellesley. 5 Bing. 392 ; 30 R. R. 665 ; 12 M. k P. 
 
 695 ; 7 L. J. (o.S.) C. P. 100 138 
 
 Cresswell r. Hedges, 31 L. J. Ex. 497 ; 1 H. & C. 421 ; 8 Jur. (N.S.) 
 
 767 : 10 W. R. 777 " ... 263 
 
 Cripps r. .Judge, 13 Q. B. D. 583 ; 49 J. P. 100 ; 53 L.J. Q. B. 517 ; 
 
 51 L. T. 182 ; 33 W. R. 35 73 
 
 Croft r. Alison, 4 B. & A. 590 ; 23 R. R. 407 59 
 
 Crossley v. Lightowler, L. R. 2 Ch. 478 ; 36 L. J. Ch. 584 ; 
 
 16 L. T. 438 ; 15 W. R. 801 ... ' 207,226 
 
 Crowhurst r. Amersham Burial Board, 4 Ex. D. 5 ; 48 L. J. Ex. 109 ; 
 
 39 L. T. 3.55 ; 27 W. R. 95 17 
 
 Crump V. Lambert, L. R. 3 Eq. 409 ; 15 L. T. 600 ; 15 W. R. 417 ... 200 
 Cubitt r. Porter, 8 B. & C. 257 ; 2 Man. & R. 267 ; G L. .1. (o.S.) 
 
 K. B. 306 ; 32R. R. 374 263 
 
 Cundy v. Lindsay, 3 App. Cas. 459 ; 47 L. J. Q. B. 481 ; 38 L. T. 
 
 573 ; 26 W. R. 406 271 
 
 D. 
 
 Dalton v. Angus, 6 App. Cas. 740 ; 46 J. P. 132 ; 50 L. J. Q. B. 689 ; 
 
 44 L. T. 844 ; 30 W. R. 191 55.216—218 
 
 V. South Eastern Rail. Co., 4 C. B. (n.s.) 296 ; 27 L. J. C. P. 
 
 227 ; 4 Jur. (n.s.) 711 ; 6 W. R. 574 92, 194 
 
 Daly r. Dublin, etc. Rail. Co. 30 L. R. Ir. 514 194 
 
 Dand r. Sexton, 3 T. R. 37 269 
 
 Daniel r. Ferguson. [1891] 2 Ch. 27 ; 39 W. R. 599 108, 109
 
 Table of Cases Cited. xxvii 
 
 PAGE 
 
 Dansey r. Richardson, 3 E. & B. \U ; 2 C. L. K. 1442 ; 2S L. J. 
 
 Q. B. 217 ; 18 Jur. 721 2C0 
 
 Darley Main Colliery Co. r. Mitchell.ill App. Cas. 127 ; :.l J. 1'. 148 ; 
 
 .10 L. J. Q. B. 529 ; 54 L. T. 882 80, 88, 94 
 
 Dauncey r. HoUoway. [1901] 2 K. B. 441 ; 70 L. J. K. B. 695 ; 
 
 84 L. T. 649 ; 49 W. R. 546 125 
 
 Davey v. London and South Western Rail. Co.. 12 Q. B. 1). 7n ; 
 
 48 J. r. 279 ; 53 L. J. Q. B. 58 : 49 L. T. 739 189 
 
 Davies v. Mann, 10 M. & W. 549 ; 12 L. J. E.\. M ; 6 Jur. 954 : 
 
 62 R. R. 698 177,185 
 
 r. Petley. 15 Q. B. 276 239 
 
 r. Snead, L. R. 5 Q. B. 608 ; 39 L. J. Q. B. 202 : 23 L. T. 
 
 126 136 
 
 r. Williams, 10 Q. B. 725 ; 16 L.J. Q. B. 369 : 11 Jur. 750 ; 
 
 74 R. R. 491 153 
 
 r. , 16 Q. B. 556; 20 L. J. Q. 330 ; 15 Jur. 752 ... 239 
 
 Davis r. London and North Western Rail. Co., 7 W. R. 105 ; 
 
 4 Jur. (N.s.) 1303 95 
 
 r. Russell, 5 Biug. 354 ; 2 M. & 1'. 590 ; 7 L. J. (o.s.) M. C. 
 
 52 ; 30 R. R. 637 254 
 
 V. Shepstone, 11 App. Ca*. 187 ; 50 J.R. 709 , 55 L. J. P. C. 
 
 51 ; 55 L. T. 1 ; 34 W. R. 722 130.135 
 
 Daw r. Eley, L. R. 7 Eq. 49 ; 38 L. J. Ch. 113 : 17 W. R. 245 ... 251 
 Dawkins r. Lord Rokeby, L. R. 7 H. L. 744 : 23 W. K. 931 : 45 L. J. 
 
 Q. B. 8 ; 33 L. T. 196 133 
 
 Dean v. Peel. 5 East, 45 : 7 R. R. 653 : 1 Su.ith, 333 155 
 
 Degg V. Midland Rail. Co., 1 II. & N. 773: 26 L. J. Ex. 171 ; 
 
 3 Jur. (N.S.) 395 ; 5 W. R. 364 70 
 
 Delanev >: Fox, 26 L. J. C. P. 248 ; 2 C. B. (X.s.) 768 266 
 
 Dent r. Auction Mart Co., L. R. 2 Eq. 238 : 35 L. J. Ch. 555 ; 
 
 12 Jur. (N.s.) 447 : 14 L. T. 827 ; 14 W. R. 7o9 219 
 
 Derry c. Handley, 16 L. T. (N.S.) 263 138 
 
 r. Peeke, 14 App. Cas. 337 ; 54 J. P. 148 : 58 L. J. Ch. 864 ; 
 
 61 L. T. 265 ; 38 W. R. 33 : 1 Mag. 292 158, 163 
 
 Devonshire (Duke of) r. Pattinson, 20 Q. B. D. 263 ; 52 J. P. 270 ; 
 
 57 L. J. Q. B. 189 ; 58 L. T. 392 233,234 
 
 Dickenson r. North Eastern Rail. Co., 2 H. ^V: C. 735 ; 33 L. J. Ex. 
 
 91 ; 9 L. T. 299: 12 W. R. 52 193 
 
 Digby V. Thompson, 4 B. & Ad. 821 ; 1 N. 6c :M. 485 ; 2 L. J. K. B. 
 
 140 ; 38 R. R. 378 lll> 
 
 Dillon r. Balfour. 20 L. R. Ir. 601 132 
 
 Dixon r. Bell, 5 M. & S. 198 ; 1 Stark. 287 ; 17 K. R. 308 ... 91, 177. 179 
 Dobell 'r. Stevens, 3 B. & C. 623 ; 5 1). .V: R. 490 : 3 L. J. (O.s.) 
 
 K. B. 89 ; 27 R. R. 441 162 
 
 Dobson f. Blackmore. 9 Q. B. 991 ; 16 L. J. Q. B. 233 ; 11 Jur. 
 
 556 ; 72 R. R. 493 240 
 
 Doe d. Carter r. Bernard. 13 Q. B. 945 265 
 
 d. Johnston r. Baytup, 3 A. .\c E. 188 ; 4 M. & N. 837 ; 1 H. & 
 
 W. 270 ; 4 L. J. (N.s.) K. B. 263 ; 42 R. R. 359 266 
 
 f/. Knight c. Smith, 4 M. cVc S. 347 266 
 
 d. Marriott ;•. Edwards, 5 B. & Ad. 1065 ; 6 Cur. & P. 208 : 
 
 3N. &M. 193 266 
 
 d. North v. Webber, 5 Scott, 189 ; 3 Bing. N. C. 922 ; 3 Hodges, 
 
 203 ; 6 L. J. C. P. 319 266 
 
 rZ. Oliver r. Powell. 1 A. &E. 531 : 3 H. &M. 616 266 
 
 Donald r. Suckling, L. R. 1 Q. B. 585 ; 7 B. & S. 783 ; 35 L. J. Q. B. 
 
 232 ; 12 Jur. (N.S.) 795 ; 14 L. T. 772 : 15 W. R. 13 273 
 
 Donovan r. Laing, Limited. [1893] 1 Q. B. 629 , 57 J. P 583 : 
 
 63 L. J. Q. B. 25 ; 4 R. 317 : 68 L. T. 512 : 41 W. H. 455 ... 57
 
 xxviii Table of Cases Cited. 
 
 Doormaa r. Jenkins, 2 A. & E. 256 ; 4 N. & M. 170 ; -i L. J. K. B. 
 
 29 ; 41 H. K. 429 41 
 
 Dormer c. Cook, 88 L. T. 629 250 
 
 Dormont r. Furness Rail. Co. 11 Q. B. D. 496; 47 J. T. 711 ; 
 
 52 L. J. Q. B. 831 ; 49 L. T. 134 ; 5 Asp. M. C. 127 33 
 
 Doswell r. Impey, 1 B. & C. 169 247 
 
 Doughty v. Eirbank. 10 Q. B. D. 358 ; 48 J. F. 55 ; 52 L. J. Q. B. 
 
 480 ; 48 L. T. 530 74 
 
 Dovaston r. Payne, 2 H. Bl. 527 ; 2 Sm. L. C. 157 ; 3 R. R. 497 ... 260 
 Drury r. North Eastern Rail. Co., [19011 2 K. B. 322 ; 70 L. J. K. B. 
 
 830 : 84 L. T. 658 :'. 184 
 
 Dublin, etc. Rail. Co. r. Slattery, 3 App. Cas. 1155 ; 39 L. T. 365 ; 
 
 27 W. R. 191 185,189 
 
 Duck c. Mayeu, [1892] 2 Q. B. 511 : 57 J. P. 23 ; 62 L. J. Q. B. 
 
 69 ; 4 R. 38 ; 67 L. T. .547 ; 41 VV. R. 56 98 
 
 Duke of Brunswick r. King of Hanover, 6 Bea. 1 ; 13 L. J. Ch. 
 
 107 ; 8 Jur. 253 ; 63 R. R. 1 45 
 
 Dulien r. White & Sons, [1901] 2 K. B. 669 ; 70 L. J. K. B. 837 ; 
 
 85 L. T. 126 ; 50 W. R. 76 91 
 
 Dunn i: Birmingham Canal Co., L. R. 8 Q. H. 42 ; 42 L. ,J. Q. B. 
 
 34 ; 27 L. T. 683 ; 21 W. R. 266 216 
 
 i^urell V. Pritchard. L. E. 1 Ch. 244 ; 35 L. .1. Ch. 223 ; 12 Jur. 
 
 (N.S.) 16 ; 13 L. T. 545 ; 14 W. R. 212 107, 108 
 
 Dyer r. Munday, [1895] 1 Q. B. 742 : 59 J. P. 276 ; 64 L. J. Q. B. 
 
 448 ; 14 R. 306 : 72 L. T. 448 ; 43 W. R. 440 62 
 
 E. 
 
 Eager v. Grimwood, 16 L. J. Ex. 236 : 1 Ex. 61 ; 74 R. R. 584 ... 157 
 Eardley r. Lord Granville, 24 W. R. 528 ; 3 Ch. D. 826 ; 45 L. J. Ch. 
 
 669 ; 34 L. T. 609 259 
 
 Earl f. Lubbock, [19051 1 K. B. 2.53 ; 74 L. J. K. B. 121 ; 53 W. R. 
 
 145 " 40 
 
 Earl of Dundonald r. Masterman, L. R. 7 Eq. 504 ; 38 L. J. Ch. 
 
 3.50 ; 20 L. T. 271 ; 17 W. R. 548 78 
 
 -Earle r. Kingscote, [1900] 1 Ch. 203 48 
 
 •Eastern, etc. Telegraph Co. r. Capetown Tramwavs Co., [1902] 
 
 A. C. 381 ; 71 L. J. P. C. 122 ; 86 L. T. 4.57 ; 50 W. R. 
 
 657 202 
 
 Eaton V. Johns, 1 Dowl. (N.S.) 602 117 
 
 Edwards r. Clay, 28 Beav. 145 81 
 
 V. Midland Rail. Co.. 6 Q. B. D. 287 ; 45 J. P. 374 ; 
 
 .50 L. J. Q. B. 281 ; 43 L. T. 694 ; 29 W. R. 609 ... 46. 145 
 Elliott, E.r parte. 3 Mont. & A. 110 ; 2 Deac. 172 28, 30 
 
 V. North Eastern Rail. Co., 10 H. L. Cas. 333 : 32 L. J. Ch. 
 
 402 ; 9 Jur. (x.s.) 555 ; 8 L. T. 337 ; 11 W. R. 604 ... ... 106 
 
 Ellis V. Loftus Iron Co., L. R. 10 C. P. 10; 44 L. J. C. P. 24 ; 
 
 31 L. T. 483 ; 23 W. R. 246 259 
 
 V. Manchester Carriage Co., 2 C. P. D. 13 ; 35 L. T. 476 ; 
 
 25 \V. R. 229 220 
 
 r. Sheffield Gas Co., 23 L. J. Q. B. 12 : 2 El. .\c Bl. 767 ; 
 
 2 C. L. H. 249 ; 18 Jur. 146 ; 2 W. R. 19 52, 54 
 
 Embrey r. Owen, 6 Ex. 369 ; 20 L. J. Ex. 212 ; 15 Jur, 633 : 225, 226 
 Emmens r. Pottle, 16 Q. B. D. 354 ; 50 J. P. 228 ; 55 L. J. Q. B, 
 
 51 ; 53 L. T. 808; 34 VV. R. 116 45, 127 
 
 Englehart v. Tarrant, [1897] 1 Q. B. 24(1; W, L.J. Q. B. 122; 
 
 75 L. T.617: 15 \V.R.179 51,187
 
 Table of Cases Cited. xxix 
 
 PAGE 
 Erlander r. New Sombrero Phosphate Co., 8 App. Cas. 1218 : 39 L. T 
 
 269 ; 26 W. R. (55 168 
 
 Evans v. Walton, L. K. 2 C. P. GU ; 'M L. J. C. P. 307 : 17 L. T. 
 
 92 ; 15 W. R. 1062 ... 152—154 
 
 Every i\ Smith, 26 L. J. Ex. 345 263 
 
 F. 
 
 Faldo V. Ridge, Yelv. 74 2611 
 
 Ealvey r. Standford. L. R. 10 Q. B. 54 ; 44 L. J. Q. B. 7 ; 31 L. T. 
 
 677 ; 23 W. R. 162 87 
 
 Farmer r. Hunt, Brownl. 220 272 
 
 Farquharson Brothers v. King & Co.. [1902] A. C. 325 ; 71 L. J. K. B. 
 
 667 ; 86 L. T. 810 ; 51 W. R. 94 271 
 
 Feltham r. England, L. R. 2 Q. B. 33 ; 7 B. & S. 676 : 36 L. J. Q. B. 
 
 14 : 15 W. R. 151 Gii 
 
 Fenna r. Chxre & Co., [1895] 1 Q. B. 199 ; 64 L. J. (2. B. 23s ; 
 
 15 R. 220 199 
 
 Fenwick r. East London Rail. Co., L. R. 20 Eq. 544 : 44 L. J. Ch. 
 
 602 ; 23 W. R. 901 102 
 
 Fetter f. Beal, 1 Ld. Raym. 339 94 
 
 Filburn v. People's Palace Co., 25 Q. B. D. 258 ; 55 J. P. 181 ; 
 
 38 W. R. 706 ; 59 L. J. Q. B. 471 180 
 
 Firbank's Executors r. Humphreys. IS Q. B. D. 54 ; 56 L. J. t^. B. 
 
 57 ; 56 L.T. 36 ; 35 W. R. 92 167 
 
 Fitzgerald r. Firbank, [1897] 2 Ch. 96 ; 66 L. J. Ch. 529 : 76 L. T. 
 
 584 236 
 
 Fitzjohn r. Mackinder, 30 L. J. C. P. 257 ; 9 C. B. (x..s.) 505 ; 
 
 7 Jur. (N.s.) 1283 ; 4 L. T. 149: 9 W. R. 477 141 
 
 Fitzwalter's (Lord) Case, 1 Mod. 105 233 
 
 Fletcher c. Rylands, L. R. 3 H. L. 330 17—20.35 
 
 r. Smith. 2 App. Cas. 781 ; 47 L. J. Ex. 4 ; 37 L. T. 367 : 
 
 26 W. R. 83 202 
 
 Flight i: Thomas, 11 A. & E. 688 ; 3 P. i: D. 442 ; 10 L. J. Ex. 
 
 .529 ; 8 CI. & F, 231 ; 52 R. R. 468 ; 5 Jur. 811 221 
 
 Fordham v. London, Brighton and South Coast Rail. Co.. L. R. 4 C. P. 
 
 619 184 
 
 Foreman r. Canterbury (Mayor of), L. R. 6 Q. B. 214 ; 40 L. J. (l B. 
 
 138 ; 24 L. T. 385 ; 19 \V. R. 719 200 
 
 Foulger v. Newcomb. L. R. 2 Ex. 327 ; 36 L. J. Ex. 169 ; 16 L. T. 
 
 595 ; 15 W. R. 1181 121 
 
 Foulkes V. Metropolitan District Rail. Co.. 5 C. P. D. 157: 
 
 49 L. J. C. P. 361 ; 42 L. T. .345 : 28 W. R. .526 41 
 
 Fowler v. Hollins, L. R. 7 Q. B. 616 ; 41 L. J. Q. B. 277 : 27 L. T. 
 
 168 ; 20 W. R. 868 270 
 
 France v. Gaudet, L. R. 6 Q. B. 199 : 40 L. J. Q. B. 121 : 19 W. R. 
 
 622 89 
 
 Franklin r. South Eastern Rail. Co., 3 H. & N. 211 ; 4 Jur. (N.S.) 
 
 565 ; 6 W. R. 573 92, 193. 194 
 
 Fray r. Fray, 34 L. J. C. P. 45 : 17 C. B. (N.s.) 603 ; 10 Jur. (N.s.) 
 
 1153 116 
 
 Fritz V. Hobson, 14 Ch. D. 542 ; 49 L. J. Ch. 735 ; 42 L. T. 677 : 
 
 28 W. R. 722 1(1.198 
 
 Fryer r. Kynnersley, 33 L. J, C. P. 96 ; 15 C. B. (N.s.) 422 ; 10 Jur. 
 
 (N.s.) 441 ; 9 L. T. 415 ; 12 W. R. 155 136
 
 XXX Table of Cases Cited. 
 
 G. 
 
 PAGE 
 Gallwev v. Marshall, 23 L. J. Ex. 78 ; 9 Ex. 295 ; 2 C. L. E. 399 ; 
 
 2 iV. R. 106 12.") 
 
 Gaiilev c. Ledwidge, 14 Ir. L. R. 31 271 
 
 Gardener r. Slade, 18 L. J. Q. B. 334 ; 13 Q. B. 796 ; 13 Jur. 
 
 826 136 
 
 Garrett r. Taylor, Cro. Car. 567 172 
 
 Gathercole cMiall, 15 M. & W. 319 ; 15 L. J. Ex. 179 ; 10 Jur. 337 ; 
 
 71 R. R. 679 ... 130 
 
 Gee c. Pritchard, 2 Swan. 402 ; 19 R. R. 87 104 
 
 Geon/e and Richard, The, L. R. 3 Ad. & Ec. 466 ; 24 L. T. 717 ... 193 
 . George v. Skivington, L. R. 5 Ex. 1 ; 39 L. J. Ex. 8 : 21 L. T. 495 ; 
 
 18W. R. 118 39.177,179 
 
 Gibbs r. Guild. 9 Q. B. D. 59 ; 51 L. J. Q. B. 313 ; 46 L. T. 248 ; 
 
 30\V. R. 591 80,168 
 
 V. Great Western Rail. Co., 12 Q. B. D. 208 ; 48 J. P. 230 ; 
 
 53 L. J. Q. B. 543 ; 50 L. T. 7 ; 32 W. R. 329 74 
 
 r. Wolliscott, 3 Salk. 290 233 
 
 Giblan v. Labourers' Union, [1903] 2 K. B. 600 ; 72 L. J. K. B. 
 
 907 ; 89 L. T. 386 174.175 
 
 — — Giles V. Walker. 24 Q. B. D. 656 ; 54 .J. P. 599 ; 59 L. J. Q. B. 416 : 
 
 62 L. T. 933 ; 38 W. R. 782 203 
 
 Gillard v. Laxton, 31 L. J. M. C. 123 252 
 
 Gilpin r. Fowler. 9 Ex. 615 ; 23 L. J. Ex. 152; 18 Jur. 292 : 
 
 2 W. R. 272 137 
 
 Gipps r. Woollicott. Holt, 323 235 
 
 -"^- Gladwell r. tSteggall. 5 Bing. N. C. 257 38 
 
 r. . 5 Bing. N. C. 753 ; 8 Scott, 60 ; 8 L. J. C. P. 
 
 361 ; 3 Jur. 535 ; 53 R. R. 257 178 
 
 Glamorgan Coal Co. r. South Wales ^Miners' Federation, [1903] 
 
 2 K. B. 545 ; 72 L. J. K. B. 893 ; 89 L. T. 393 174 
 
 Glasier f. Rolls, 62 L. T. 133 162 
 
 Glover r. London and South Western Rail. Co.. L. R. 3 Q. B. 2."i ; 
 
 37 L. J. Q. B. 57; 17L. T. 139 92 
 
 Glyn. :M;11s & Co. v. East and West India Docks Co., 7 App. Cas. 
 
 591 : 52 L. J. Q. B. 146 : 47 L. T. 309 : 31 W. R. 201 ... 270 
 
 Goff V. Great Northern Rail. Co., 3 El. i: El. 672 ; SO L. J. Q. B. 
 
 148; 7 Jur. (N.S.)286 ; 3 L.T. 8.50 61 
 
 Goffin r. Donnelly, 6 Q. B. D. 307 ; 45 J. P. 439 ; 50 L. J. Q. B. 
 
 303 ; 44 L. T. 141 ; 29 W. R. 440 133 
 
 Goodman r. Saltash (Mayor of), 7 App. Cas. 633 ; 47 J. P. 276 ; 
 
 52 L. J. Q. B. 193 : 48 L. T. 239 ; 31 W. R. 293 ... 218, 235 
 
 Goodtitle r. Alker. 1 Burr. 133 ; 1 Ld. Ken. 427 262 
 
 Gordon r. Cheltenham Hail. Co., 5 B. 233 ; 2 Rail. Cas. 800 ; 59 R. R. 
 
 486 109 
 
 — ~ Gorris r. Scott, L. R. 9 Ex. 125 ; 43 L. J. Ex. 92 ; 30 L. T. 431 ; 
 
 22W. R. 575 34 
 
 Gourley v. Plimsoll. L. R. 8 C. P. 362 ; 42 L. J. C. P. 121 ; 28 L. T. 
 
 598 ; 21 W. R. 083 115 
 
 Grainger r. Hill, 4 Bing. N. C. 212 ; 5 Scott, 561 ; 7 L. J. C. P. 
 
 S5 148,245 
 
 Grand Trunk Rail. Co. r. Jennings, 13 App. Cas. 800; 58 L. J. 
 
 P. C. 1 ; 59 L. T. 679 : 37 W. R. 403 92, 194 
 
 Great Western Rail. Co. r.Bennett. L. R. 2 II. L. 27 : 36 L. J. Q. B. 
 
 133; 16 L. T. 186; 15 W. R. 647 216 
 
 Green r. Duckett, 11 Q. B. 1). 275 ; 47 J. P. 487 : 52 L. J. C^. B. 
 
 435 ; 48 L. T. 677 ; 31 W. K. Ii07 264
 
 Table of Cases Cited. xxxi 
 
 PAGE 
 Greenslade i: Halliday, 6 Bing. 379 ; i Moo. & P. 71 ; 8 L. J. (o.s.) 
 
 C. P. 124 ; 53 K. K. 241 240 
 
 Greo-ory v. Piper, 9 B. & C. 591 ; 4 Man. & K. SOU : 33 R. K. 2G8... 259 
 
 — V. Williams, 1 C. & K. 568 92 
 
 Greta Holme, The, [1897] A. C. 596 ; 66 L. J. AJm. 166 ; 77 L. T. 
 
 23 ; 8 Asp. M. C. 317 90 
 
 Oreville r. Chapman, 5 Q. B. 744 ; D. & M. 553 ; 13 L. J. Q. B. 172 ; 
 
 8 Jur. 189 117 
 
 Griffin r. Coleman, 28 L. J. Ex. 134 ; 4 H. & N. 265... 246, 253, 254 
 
 Griffiths r. Dudley (Earl of), 9 Q. B. D. 357 ; 51 L. J. Q. B. 543 ; 
 
 47L. T. 10 ; 30 W.R. 797 72 
 
 V. London and St. Katharine's Dock Co., 13 Q. B. D. 259 ; 
 
 49 J. P. 100; 53 L. J. Q. B. 504 ; 51 L. T. 533 ; 
 
 33 W. \\. 35 68 
 
 v. Teetgen. 15 C. B. 344 ; 24 L. J. C. P. 35 ; 1 Jur. (N.S.) 
 
 426 : 3 \V. R. 11 155 
 
 Guy r. Churchill, 40 Ch. D. 481 ; 58 L. J. Ch. 345 ; 37 W. R. 504 : 150 
 Guy Manncrhui, The, 7 P. D. 52, 132 ; 58 L. J. Ch. 345 ; 60 L. T. 
 
 473 ; 37 W. R. 504 43 
 
 GwilHam v. Twist, [1895] 2 Q. B. 84 ; 59 J. P. 484 ; 64 L. J. Q. B. 
 
 474 ; 14 R. 461 ; 72 L. T. 579 ; 43 W. R. 566 51 
 
 Gwinnell r. Earner, L. R. 10 C. P. 658 ; 32 L. T. 835 210 
 
 H. 
 
 Haddrick v. Heslop, 12 Q. B. 267 ; 17 L. .J. Q. B. 313 ; 12 Jur. (JOO : 144 
 
 Hadesdon v. Gryssel, Cro. Jac. 195 269 
 
 Hadley r. Taylor, L. R. 1 C. P. 53 ; 11 Jur. (n..s.) 979 ; 13 L. T. 
 
 368; 14 VV. R. 59 13 
 
 Halestrap v. Gregory. [1895] 1 Q. B. 561 ; 64 L. J. Q. B. 415 ; 
 
 15 R. 306 ; 72 L. T. 292 ; 43 \V. R. 507 188 
 
 Hall r. Byron, 4 Ch. D. 667 ; 46 L. J. Ch. 297 : 36 L. T. 367 ; 
 
 25 W.R. 317 232 
 
 r. Lichfield Brewery Co.. 49 L. J. Ch. 655 ; 43 L. T. 380 ... 219 
 
 Hallei/, The, L. R. 2 P. C. 193 ; 7 Moo. P. C. (N.a.) 263 ; 37 L. J. 
 
 Adm. 933 ; 18 L. T. 879 ; 16 W. R. 998 43 
 
 Hanbury r. Hanbury, 8 T. L. R. 560 46 
 
 Hancock r. Somes, 28 L. J. M. C. 196 ; 1 E. i; E. 795 ; 5 Jur. (N.S.) 
 
 983 ; 7 W. R. 422 ; 8 Cox C. C. 172 257 
 
 Hannani v. Mockett, 2 B. & C. 939 ; 4 D. & K. 51.s ; 2 L. J. (o.s.) 
 
 K. B. 183 ; 26 R. R. 591 264 
 
 Hanson v. Waller, [1901] 1 K. B. 390 ; 70 L. J. K. R. 231 ; 84 L. T. 
 
 91;49W. R. 445 61 
 
 Hardy v. Ryle, 9 B. & C. 608 ; 4 M. .V R. 295 ; 7 L. J. (o.s.) U. C. 
 
 118 83 
 
 Hargreave v. Spink, [1892] 1 Q. B. 25 ; 61 L.J. Q- B. 318 ; 65 L. T. 
 
 6.50 ; 40 W. R. 254 271 
 
 Hargroves Aronson & Co. r. Hartopp, [1905] 1 K. B. 472 ; 74 L. J. 
 
 K. B. 233 : 53 W. R. 262 ; 21 T. L. R. 226 1S2, 21 ) 
 
 Harman r. Johnson. 2 El. & Bl. 61 ; 3 Car. & Kir. 272 ; 22 L. J. 
 
 Q. B. 297; 17 Jur. 1096 77 
 
 Harrington (Earl of) r. Derbv Corporation, [1905] 1 Ch. 205 ; 
 
 69 J. P. 62 ; 74 L. J. Ch. 219 ; 92 L. T. 153 104 
 
 Harris v. Brisco. 17 Q. B. D. 504 ; 55 L. J. Q. B. 423 ; 55 L. T. 14 ; 
 
 34W. R. 729 151 
 
 r. Butler, 2 M. & W. 542 : M. & H. 117 ; 6 L. J. Ex. 133 ; 
 
 1 Jur. 60S ; 46 R. R. 695 153
 
 186, 
 
 199 
 
 
 127 
 
 7. 
 
 
 
 257 
 
 
 245 
 
 b". 
 
 
 
 111 
 
 
 
 
 139 
 
 
 46 
 
 ; 
 
 
 
 220 
 
 
 49 
 
 B. 
 
 
 177, 
 
 ,181 
 
 xxxii Table of Cases Cited. 
 
 PAGE 
 Harris r. Perry & Co., [1903 J 2 K. B. 219 ; 72 L. J. K. B. 725 ; 
 
 89 L. T. 174 41 
 
 Harrison r. Rutland (Duke of), [1893] 1 Q. B. 142; 57 J. I'. 278 : 
 62 L. J. Q. B. 117 ; 4 K. 155 ; 68 L. T. 35 ; 41 W. K. 
 
 322 259 
 
 i: Southwark, etc. Water Co.. [1891] 2 Cli. 409 ; 60 L. J. 
 
 Ch. 6.30 ; 64 L. T. 864 ' 102,202 
 
 Harrold r. Watney, [1898] 2 Q. B. 320 ; 67 L. J. Q. B. 771 : 78 L.T. 
 
 788 : 46 W. R. 642 
 
 Hart r. Wall. 2 C. P. D. 146 ; 46 L. J. C. P 227 ; 25 W. R. 373 
 Hartley v. Hindmarsh, L. R. 1 C. P. 553 ; 1 H. .V \i. 607 ; 35 L. 
 
 M. C. 255 ; 12 Jur. (N.s.) 502 ; 14 L. T. 795 ; 14 W. R. 862 
 
 Harvey r. Maine, 6 Ir. C. L. R. 417 
 
 Hatchard r. Mege, 18 Q. B. D. 771 : 51 J. P. 277 ; 56 L. J. Q. B. 
 
 397 ; 56 L. T. 662 ; 35 W. R. 576 
 
 Hawkesley v. Bradshawe, 5 Q. B. D. 22. 302 ; 44 J. P. 473 ; 49 L 
 
 Q. B. 333 ; 42 L. T. 285 : 28 W. R. 557 
 
 Haycroft r. Creasy, 2 East, 92 ; 6 R. R. 380 
 
 Havnes v. King, [1893] 3 Ch. 439 ; 63 L. J. Ch. 21 : 3 R. 71 
 
 69 L. T, 855 ; 42 W. R. 56 
 
 Head r. Briscoe, 5 C. & P. 484 ; 38 R. R. 841. 
 
 Heaven r. Pender, 11 Q. B. D. 503 ; 47 J. P. 709 ; 52 L. J. Q. 
 
 702 ; 49 L.T. 357 
 
 Hebditch r. Macllwaine, [1894] 2 Q. B. 54 ; 58 J. P. 620 ; 63 L. J. 
 
 Q. B. 587; 9 R. 452; 70 L.T. 826; 42 W. R. 422 137 
 
 Hedges r. Tagg, L. R. 7 Ex. 283 ; 41 L. J. E.k. 169 ; 20 W. R. 
 
 976 153,154 
 
 Hedley v. Pinkney Co.. [1892] 1 Q. B. 58 ; 56 J. P. 308 : 61 L. J. 
 
 Q. B. 179 ; 6ij L. T.""71 ; 40 W. R. 113 ; 7 Asp. M. C. 135 ... 65 
 Heniing c. Power, 10 M. & W. 564 ; 6 Jur. 858 ; (12 R. R. 705 ... 124 
 Henderson r. Preston. 21 Q. B. D. 362 ; 52 J. P. 820 ; 57 L. J. Q. B. 
 
 607 ; 36 W. R. 834 250 
 
 /•. Williams, [1895] 1 Q. B. 521 ; 64 L. J. Q. B. 308 ; 
 
 72 L. T. 98 ; 43 W. R. 274 276 
 
 Henvvood r. Harrison. L. R. 7 C. P. 606 ; 41 L. J. C. P. 206 ; 
 
 26 L. T. 938 ; 20 W. R. 1000 130 
 
 Hermann-Loog r. Bean, 26 Ch. D. 306 ; 48 J. P. 708 ; 53 L. J. Ch. 
 
 1128; 51 L. T. 442; 32 W. R. 994 105 
 
 Heske r. Samuelson, 12 Q. B. I). 30 ; 53 L. J. Q. B. 45 ; 49 L. T. 
 
 474 73 
 
 Hetherington r. North Eastern Rail. Co.. 9 Q. B. 1). 160 ; 51 L. J. 
 
 Q. B. 495 ; 30 W. R. 797 194 
 
 Hewlett r. Cruchley, 5 Taunt. 283 143 
 
 Hickman v. Maisey, [1900] 1 Q. B. 752 ; 69 L. J. Q. B. 511 ; 82 L. T. 
 
 321 : 4.S W. R. 385 104,260 
 
 Hicks r. Faulkner, 8 Q. B. D. 167 ; 51 L. J. Q. B. 268 ; 30 W. R. 
 
 545 143,145 
 
 Higham r. Kabett, 5 Bing. N. C. 622 ; 7 D. P. C. 653 ; 7 Scott, 827 ; 
 
 50 R. R. 811 228 
 
 Hill r. Metropolitan Asylums Board, 6 App. Cas. 193 ; 45 J. P. 664 ; 
 
 50 L. J. Q. P.. 353": 44 L. T. 653 ; 29 W. K. 607 ... 107, 204 
 
 Hinton r. Heather, 14 M. & W. 131 ; 15 L. J. Ex. 39 145 
 
 Hisco.x V. Greenwood, 4 Esp. 174 ... ... ... ... ... 273 
 
 Hodgson r. Sidney, L. R. 1 Ex. 313 ; 4 H. .V; C. 492 ; 35 L. J. Ex. 
 
 182 ; 12 Jur. (n.S.) 694 ; 14 L. T. 624 ; 14 W. R. 923 112 
 
 Hodson v. Pare. [1899] 1 Q. B. 455; 68 L. J. Q. B. 309 ; 80 L. T. 
 
 13; 47 W. R. 241 133 
 
 Hogg r. Ward, 27 L. J. Ex. 443 ; 3 II. & N. 417 ; 4 Jur. (N.S.) 885 ; 
 
 6 W. R. 595 254
 
 Table of Cases Cited. xxxiii 
 
 PAGE 
 Hole V. Barlow, 27 L. J. C. V. 208 ; 4 C. B. (x.s.) 334 ; 4 .lur. (x.s.) 
 
 lOiy ; (i W. 11. 619 20G 
 
 c. Sittingbourue, etc. Rail. Co., 6 H. & N. 488 ; 30 L. J. Ex. 
 
 81 ; 3 L. T. 7.')U; 9 W. K. 274 52, .54 
 
 Holford V. Bailey. 13 Q. B. 42t> ; 18 L. J. Q. B. loi) ; 13 Jur. 278 ... 235 
 
 Holleran r. Bagnell, 4 L. K. Ir. 740 193 
 
 Holliday v. Holgate, L. R. 3 Ex. .299 ; 37 L. J. Ex. 174 ; 18 L. T. 
 
 6.56 ; 17 W. K. 13 273 
 
 Hollins (,'. Fowler, L. K. 7 H. L. 757 ; 44 L. .1. Q. B. 169 ; 33 L. T. 
 
 73 270,271 
 
 r. Verney, 13 Q. B. D. 304 ; 48 J. l\ 580 ; 53 L. J. Q. 15. 
 
 430; 51 L. T.753; 33 W. R. 5 229 
 
 Holmes v. Goring, 2 Bing. 76 ; 9 Moore, 166 : 2 L. J. C. l\ 134 ; 
 
 27 R. li. 549 ... 228 
 
 V. Matiier, L. R. 10 Ex. 261 ; 44 L. J. Ex. 176 ; 33 L. T. 
 
 361 ; 23 W. R. 364 244 
 
 Holt V. Scholetield, 6 T. R. 691 ; 3 R. R. 318 124 
 
 Hope V. Evered, 17 Q. B. D. 338 ; 55 L. J. M. C. 146 ; 55 L. T. 320 ; 
 
 34 W. R. 742 ; 16 Cox C. C. 112 142 
 
 Horwood V. Smith, 2 T. R. 750 ; 2 Leach C. C. 5S6 ii ; 1 R. R. 
 
 613 272 
 
 Houlden v. Smith, 14 Q. B. S41 ; 19 L. .1. ^. B. 170; 14 Jur. 
 
 .598 249 
 
 Hounsell v. Smyth, 29 L. J. C. R. 203 : 7 C. B. (N.s.) 731 ; 6 Jur. 
 
 (N.s.) 897 ; 1 L. T. 440 : 8 W. \l. 277 182, 183, 199 
 
 Howe r. Finch, 17 Q. B. D. 187 ; 51 J. P. 276 ; 34 W. R. 593 ... 73 
 Hubback & Co. r. Wilkinson & Co., [1899] 1 Q. B. 86 ; (!8 L. J. Q. B. 
 
 34;79L. T. 429 116,120 
 
 Huckle r. Money, 2 Wils. 205 86 
 
 ■,2Wils. 587 87 
 
 Huo-hes V. Mactie. 2 H. & C. 744 ; 33 L. J. Ex. 177 ; 10 Jar. (x.s.) 
 
 682; 9 L. T. 513; 12 W. R. 315 186 
 
 r. Percival, 8 App. Cas. 443 ; 47 J. P. 772 ; 52 L. J. Q. B. 719 ; 
 
 49 L. T. 189 ; 31 W. R. 725 "'•"> 
 
 Hull V. Picker.sgill, 1 B. & B. 286 ; 3 Moore. 612 : 21 K. R. 598 ... 50 
 
 Hume r. Oldacre, 1 Stark. 252; 18 R. K. 779 
 
 Humphries v. Brogden, 12 Q. B. 739 ; 20 L. J. Q. B. 10 ; 15 Ju 
 
 Hunt r. Great Northern Rail. Co!,' [1891] 2 Q. B. 189 ; 55 J. P. 648 ; 
 
 60 L. J. Q. B. 498 B^< 
 
 r. Peake, 29 L. J. Ch. 785 ; 1 Joliiis. 705 ; 6 Jur. (N.s.) 107... 21f 
 
 Hutchinson ?•. York, Newcastle, and Berwick Rail. Co., 5 Ex. 343 ; 
 
 6 Rail. Cas. 580 ; 19 L. J. Ex. 296 65 
 
 98 
 
 213 
 
 136 
 218 
 
 FAnson v. Stuart. 1 T. R. 748 ; 1 R. R. 392 116 
 
 lUidge r. Goodwin, 5 C. & P. 190 ; 38 R. R. 798 ... ... ... 188 
 
 Imperial Gaslight and Coke Co. r. Broadbent, 7 II. Ii. Cas. 600 ; 
 
 29 L. J. Ch. 377 ; 5 Jur. (N.s.) 1319 
 
 Inchbald v. Robinson, L. R. 4 Ch. 388 : 20 L. T. 259; 17 \V. K. 
 
 459 _ z. 
 
 .Indermaur v. Dames. L. R. 1 C. P. 274 ... ... ... ^' '• 181 
 
 . r. ; L. R. 2 C. P. 311 : 36 L. J. C. P. 181 ; 16 L. T. 
 
 293 ; 15 W. R. 434 ... 17.181 
 
 Irwin r. Brandwood, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; 10 Jur. 
 
 (N.S.) 370 ; 9 L. T. 772 ; 12 W. R. 438 ... ... 12^ 
 
 100 
 201
 
 xxxiv Table of Cases Cited. 
 
 J. 
 
 PAGE 
 Jackson r. Normandy Brick Co., [1899] 1 Ch. 438 ; 68 L.J. Ch. 
 
 407 ; 80 L. T. 482 109 
 
 Jacobs r. Seward, L. R. 5 H. L. 464 ; 41 L. J. C. l\ 221 ; 27 L. T. 
 
 185 263,276 
 
 Jenkins r. Jackson, 40 Ch. D. 71 ; 58 L. J. Ch. 124 ; 60 L. T. 105 ; 
 
 37W. R. 253 201 
 
 Jenner v. A'Beckett. L. R, 7 Q. B. 11 : 41 L. J. Q. B. 14 ; 25 L. T. 
 
 464 ; 20 W. R. 181 125 
 
 Jennings r. Rundall, 8 T. R. 335 ; 4 R. R. 680 45 
 
 Jenoure r. Delmege, [1891] A. C. 73 ; 55 J. P. 500 ; 60 L. J. V. C. 
 
 11 ; 63 L. T. 814 ; 39 W. R. 388 131 
 
 Jewson V. Gatti, 2 T. L. R. 441 186 
 
 Job r. Potton, L. R. 20 Eq. 84 ; 44 L. J. Ch. 262 ; 32 L. T. 110 ... 263 
 Johnson r. Emerson, L. R. 6 Ex. 329 ; 40 L. J. Ex. 201 ; 25 L. T. 
 
 337 140 
 
 1: Lindsay, [1891] A. C. 371 ; 55 J. P. 644 ; 61 L. J. Q. B. 
 
 90 ; 65 L. T. 97 ; 40 W. R. 405 67 
 
 Jones V. Boyce, 1 Stark. 493 ; 18 R. R. 812 89 
 
 V. Chapman, 2 Ex. 821 262 
 
 l: Festiniog Rail. Co., L. R. 3 Q. B. 733 ; 9 B. .t S. 835 ; 
 
 37 L. J. Q. B. 214 : 18 L. T. 902 ; 17 W. R. 28 ... 177 
 
 r. Gooday, 8 M. & W. 146 : 1 D. (N.S.) 50 ; 10 L. J. Ex. 275 ; 
 
 58 li. R. 649 89 
 
 r. Heme, 2 Wils. 87 123 
 
 r. Sculhird. [1898] 2 Q. B. 565 ; 67 L. J. Q. B. 895 ; 
 
 79 L. T. 386 57 
 
 V. Williams, 11 M. & W. 176 ; 12 L. J. Ex. 249 ; 63 R. R. 
 
 564 238 
 
 Jordeson r. Sntton, etc. Gas Co., [1899] 2 Ch. 217 ; 63 J. P. 692 ; 
 
 68 L. J. Ch. 457 ; 80 L. T. 815 213, 215 
 
 Joynt V. Cycle Trade Publishing Co.. [1904] 2 K. B. 292 : 73 L. J. 
 
 K. B. 752 ; 91 L. T. 155 130 
 
 K. 
 
 Kansas Pacific Rail. Co. r. Mihlman, 17 Kansas Rep. 224 83 
 
 Kcane r. Reynolds, 2 E. & B. 748 ; 2 C. L. R. 245 ; 18 Jur. 242 ... 260 
 Keates r. Cadogan, 20 L. J. C. P. 76 ; 10 C. B. 591 ; 15 Jur. 428 ... 211 
 Keen r. Henry, [1894] 1 Q. B. 292 ; 58 J. P. 262 ; 63 L. J. Q. B. 
 
 211 ; 9 R. 102 ; 69 L. T. 671 ; 42 W. R. 214 58 
 
 v. Milwall Docks Co., 8 Q. B. D. 482 ; 46 J. P. 435 ; 51 L. J. 
 
 Q. B. 277 ; 46 L. T. 472 ; 30 W. U. 503 74 
 
 Keighlev, Maxsted & Co. r. Durant, [1901] A. C. 240 ; 70 L. J. K. B, 
 
 662"; 84 L. T. 777 50 
 
 Kellard r. Rooke, 21 Q. B, D. 367 ; 52 J. P. 820 ; 57 L. J. Q. B. 
 
 599 ; 36 W. R. 875 73 
 
 Kelly t: Metropolitan Rail. Co., [1895] 1 Q. B. 944 ; 59 J. P. 437 ; 
 64 L. J. Q. B. 568 ; 14 R. 417 ; 72 L. T. 551 ; 43 W. R. 
 
 497 36,37 
 
 V. Sherlock, L. R. 1 Q. B. 686 ; 6 B. & S. 480 ; 35 L. J. Q. B. 
 
 209; 12 Jur. (N.S.) 937 88,96 
 
 V. Tinling, L. R. 1 Q. B. 699 ; 35 L. J. Q. B. 231 ; 12 Jur. 
 
 (x.s.) 940 ; 13 L. T. 255 ; 14 W. H. 51 130 
 
 Keudillou r. Maltby, Car. & M. 402 ; 2 M. & Rob. 438 137
 
 Table of Cases Cited. xxxv 
 
 PAGE 
 Kensit r. Great Eastern Rail. Co., 27 Ch. D. 122 ; 54 L. J, Ch. 19 ; 
 
 51 L. T. 862 ; 32 W. R. 885 226 
 
 Keyse v. Powell, 22 L. J. Q. B. 305 ; 2 El. & Bl. 132 ; 17 .Tur. 1052 : 262 
 Kidgill V. Moor, 9 C. B. 364.'; 1 L. M. & P. 131 ; lit L. J. C. P. 
 
 177 ' 229, 240 
 
 Kimber r. Press Association, [1893] 1 Q. B. 65 ; 57 J. P. 247 ; 
 
 62 L. J. Q. B. 152 ; 4 R. 95 ; 67 L. T. 515 ; 41 W. R. 17 ... 134 
 Kine v. Jolly, [1905] 1 Ch. 480 ; 74 L. J. Ch. 174 ; 53 W. R. 462 ... 223 
 King v. London Improved Ca'o Co., 23 Q. B. I). 281 : 53 J. P. 788 ; 
 
 58 L. J. Q. B. 456 ; 61 L. T. 34 ; 37 W. R. 737 58 
 
 r. Rose, 1 Freem. 347 272 
 
 Kirk r. Gregory, 1 Ex. D. 55 ; 45 L. J. Ex. 186 ; 34 L. T. 488 : 
 
 24 \V. R. 614 270 
 
 r. Todd, 21 Ch. D. 484 ; 52 L. J. Ch. 224 ; 47 L. T. 676 : 
 
 SIW. R. 69 110,111 
 
 Knight c. Fox, 5 Ex. 721 ; 20 L. J. Ex. 9 ; 14 Jnr. 963 54 
 
 Knox c. Havman, 67 L. T. 137 163 
 
 Krehl r. Burrell. 11 Ch. D. 146 ; 48 L.J. Ch. 252 ; 40 L. T. 637 ; 
 
 27W. K.805 108 
 
 L. 
 
 Lafond v. Ruddock, 13 C. B, 819: 1 C. L. R. 339 ; 22 L. J. C. P. 
 
 217: 17 Jnr. 624 ; 1 W. R. 371 83 
 
 Lamine r. Dorrell, 2 Ld. Raym. 1216 279 
 
 Lancashire Waggon Co. v. Fitzhugh, 6 H. & N, 502 ; 30 L. J. Ex. 
 
 231 ; 3 L. T. 703 270, 274, 276 
 
 Lane r. Capsev, [1891] 3 Ch. 411 ; 61 L. J. Ch. 55 ; 65 L. T. 375 ; 
 
 40 W. R. S7 239 
 
 *•. Cox, [18!»7] 1 Q. B. 415 ; (iH L. J. Q. B. 193 ; 76 L. T. 135 ; 
 
 45 \V. R. 261 182,211 
 
 Langridge r. Levy, 2 M. & W. 519 ; 6 L. J. Ex. 137 ; 46 R. R. 689 : 160. 
 
 162 
 r. , 4 M. & W. 338 ; 1 H. & N. 325 ; 7 L. J. Ex. 387 : 
 
 46 R. R. 689 39 
 
 Latter i\ Braddell, 29 W. R. 239 243 
 
 Lawrence c. Horton, 38 W. R. 555 ; 59 L. J. Ch. 440 ; 62 L. T. 749 : 109 
 
 r. Obee, 1 Stark. 22 259 
 
 Lay 1-. Midland Rail. Co., 34 L. T. 30 186 
 
 Leake r. Loveday, 4 M. & G. 972 ; 5 Scott, N. R. 908 ; 2 Dowl. 
 
 N. S. 624 ; 12 L. J. C. P. 65 ; 7 Jur. 17 ; 61 R. R. 707 ... 275 
 
 Lee V. Riley, 34 L. J. C. P. 212 ; 18 C. B. (N.s.) 722 ; 11 Jur. (x.s.) 
 
 527 ; 12 L. T. 388 ; 13 W. R. 751 259 
 
 Leggot V. Great Northern Rail. Co., 1 Q. B. D. 599 ; 45 L. J. Q. B. 
 
 .557 : 35 L. T. 334 ; 24 W. R. 784 194 
 
 Leith v: Pike, 2 W. Bla. 1326 144 
 
 Le Lievre v. Gould, [1893] 1 Q. B.491 ; 57 J. P. 484 ; 62 L. J. Q. B. 
 
 353 ; 4 R. 274 ; 68 L. T. 626 ; 41 W. R. 468 39. 158 
 
 Lemaitre v. Davis, 19 Ch. D. 281 ; 46 J. P. 324 ; 51 L. J. Ch. 173 ; 
 
 46 L. T. 407 ; 30 W. R. 360 218 
 
 Lemmon v. Webb, [1895] A. C. 1 ; 59 J. P. 564 : 64 L.J. Ch. 205 : 
 
 11 R. 116 ; 71 L. T. 647 203,238,239 
 
 Lemon c. Simmons. 57 L. J. Q. B. 260 ; 36 W. R. 351 124 
 
 Lethbridge i: 'Kirkman, 25 L. J. Q. B. 89 ; 2 Jur. (N.s.) 378 : 
 
 4W.R. 90 82 
 
 Ley r. Peter, 27 L. J. Ex. 239 ; 3 H. & N. 101 ; 6 W. R. 437 ... 267 
 Leyman r. Latimer. 3 Ex. D. 352 ; 47 L. J. Ex. 470 : 37 L. T. 819 : 
 
 26 W. R. 305 ; 14 Cox C. C. 51 115, 117
 
 xxxvi Table of Cases Cited. 
 
 PAGE 
 Limpus i\ London General Omnibus Co.. 1 H. & C. .526 ; 32 L. J. 
 
 Ex. 34 ; 9 Jnr. (N. s.) 333 ; 7 L. T. (Ul : 11 W. K. U9 : 59, 60 
 
 Lister v. Ferryman, L. R. 4 H. L. .521 ; 39 L. J. Ex. 177 ; 23 L. T. 
 
 269 ; 19 W. R. 9 142, 144 
 
 Littledale r. Liverpool College. [1900] 1 Ch. 19 ; 69 L. J. Ch. 87 ; 
 
 81 L. T. 564 ; 48 W. K. 177 268 
 
 London, Brighton and South Coast Kail. Co. r. Truman, 11 App. Cas. 
 
 45 ; 50 J. P. 388 ; 55 L. J. Ch, 354 ; 54 L. T. 250 ; 34 W. K. 
 
 P.57 106, 107, 207, 208 
 
 Long V. Keightley, 11 Ir. R. C. L. 221 154 
 
 Lotan r. Cross, 2 Camp. 464 ... ... ... ... ... ... 276 
 
 Lovell r. Howell. 1 C. P. D. 161 ; 45 L. J. C. P. 387 ; 34 L.T. 183 ; 
 
 24W. R.672 66 
 
 Low Moor Co. r. Stanley Co., 34 L. T. (N.s.) 186 268 
 
 Lumley v. Gye, 2 E. & B. 216 ; 22 L. J. Q. B. 463 ; 17 Jur. 827 : 
 
 1 W. R. 432 122. 170, 171 
 
 Lynch r. Knight, 9 H. L. Cas. 577 ; 8 Jur. (x.s.) 724 ; 5 L. T. 291 : 
 
 121,122 
 r. Nurdin. 1 Q. B. 29 ; 4 P. & D. 672 ; 10 L. J. Q. B. 73 : 
 
 5 Jur. 797; 55 R. R. 191 186,188 
 
 Lyon i: Fishmongers' Co., 1 App. Cas. 662 ; 46 L. J. Ch. 68 ; 35 L. T. 
 
 569 ; 25 W. R. 165 10 
 
 Lyons, J. & Son r. Wilkins, [1899] 1 Ch. 255 ; 63 J. P. 339 ; 68 L. J. 
 
 Ch. 146; 79 L.T. 709; 47 W. R. 291 172,175 
 
 M. 
 
 Macdougall r. Knight, 14 App. Cas. 194 ; 53 J. P. 691 ; 58 L.J. Q. B. 
 
 537 ; 60 L.T. 762; 38 W.R. 44 134 
 
 Machado r. Pontes, [1897] 2 Q. B. 231 ; 66 L. J. Q. B. 542 ; 
 
 76 L. T. 588 : 45 W. R. 565 42.43 
 
 Mackey r. Ford, 29 L. J. Ex. 404 ; 5 H. & N. 792 ; 6 Jur. (N.S.) 
 
 587 ; 2 L. T. 514 ; 8 W. R. 506 133 
 
 Macleodr. Wakley, 3C.& P. 313 129 
 
 McCartney r. Londonderry and Lough Swilly Rail. Co. [1904] A. C. 
 
 301 :"73 L. J. P. C. 73 ; 91 L. T. 105 22» 
 
 McCord r. Cammell, [1896] A. C. 57 : 60 J. P. 180 ; 65 L. J. Q. B. 
 
 202 ; 73 L. T. 634 74 
 
 McDowall r. Great Western Rail. Co., [1903] 2 K. B. 331 ; 72 L. J. 
 
 K. B. 6.52 : 88 L. T. 825 188 
 
 McGiiten r. Palmers Shipbuilding Co., 10 Q. B. 1). 5 ; 47 J. P. 
 
 70 ; 52 L. J. Q. B. 25 ; 47 L. T. 346 ; 31 W. R. 118 73 
 
 M'Gregor r. Thwaites. 3 B. & C. 35 ; 4 iJow. & Ry. 695 ; 2 L. J. 
 
 K. B. 217 ; 27 R. R. 274 138 
 
 M'Pherson r. Ihuiiels, 10 B. .\: C. 263 ; 5 M. & Rv. 251 : 8 L. J. 
 
 (o.s.) K. B. 14 ; 34 R. R. 397 '. 128, 137 
 
 McQnire r. Western IMorning News. [1903] 2 K. B. 100; 72 L. J. 
 
 K.B. 612 ; 88 L.T. 757 ; 51 W.R. 689 130 
 
 Magdaleua Vak r. Martin, 28 L. J. Q. B. 310; 2 El. .V: El. 94 : 
 
 5 Jnr. (N.S.) 1260 ; 7 W. R. 598 45 
 
 Magnolia Co. >: Atlas Metal Co., 14 R. P. C. 389 104 
 
 Malconison r. O'Deii. 10 H. L. Cas. 593 ; 9 Jur. (N.S.) 1135 ; 9 L. T. 
 
 93;12W. R. 178 234 
 
 Manchester (Mayor of) c. William.s. [IS91] I Q. B. 94 ; 54 J, P. 
 
 712 ; 60 L. .5. Q. B. 23 ; 63 L. T. 805 ; 39 W. R. 302 ... 44, 115, 120
 
 Table of Cases Cited. xxxvii 
 
 PAUE 
 :Mangan r. Attertoii, L. R. 1 Ex. 239 ; -1 II. & C. 88S ; 35 L. .1. Ex. 
 
 ICl ; 14 \V. K. 771 1S(> 
 
 Manley r. P^ield, 2'J L. J. C. P. 7*.) ; 7 C. B. (N.-S.) '.)() ; (! .Tur. (n.s.) 
 
 3U0 l.").'j 
 
 Manzoni r. Donglas. (! Q. B. 1). 14.-> ; -15 J. P. 2!)1 ; r.U L. J. Q. H. 
 
 289 ; 29 W. K. 42.-) IS'J 
 
 Marks r. Frogley, [1898] 1 Q. B. 888 ; (i7 L.J. g. 15. CO:. ; 7S L. T. 
 
 G07 ; 4(i W. K. 548 217 
 
 r. Samuel, [1904] 2 K. B. 287 ; 73 L. J. K. B. .->.S7 ; 90 L. T. 
 
 590 ; 53 W. H. 88 ; 20 T. L. K. 430 124 
 
 Marsh r. Joseph. [1897] I Ch. 213 ; 66 L.J. Ch. 128 ; 75 L.T. .5.58 : 
 
 45 W. R. 209 76 
 
 r. Keating, 1 Bing. N. C. 198 ; 1 Scott, 5 ; 2 CI. .»c F. 250 ; 
 
 8 Bli. (N.s.) 651 ; 37R. li. 75 28 
 
 r. Loader. 14 C. B. (N.s.) 535 ; II W. K. 784 2.53 
 
 Marshall r. York, etc. Kail. Co., II C. B. 655 ; 21 L. J. C. P. 34 ; 
 
 ]6Jur. 124 38 
 
 Martin, A>/i«r^<'. 4 Q. B. D. 212 ... 100 
 
 Martin r. Bannister, 4 Q. B. I). 491 ; 48 L. J. Q. B. 677 ; 28 W. K. 
 
 ■ 143 100 
 
 r. Strachan, 5 T. K. 107 n ; 6 Bro. P. C. 319 ; 1 Wils. 266 ; 
 
 2 Stra. 1179 ; 2 K. K. 552 n 265 
 
 Martindale v. Smith. I Q. B. 389 ; 1 G. & D. 1 ; 10 L. J. (^. B. 155 ; 
 
 5 Jur. 932; 55 R. K. 285 275 
 
 Mason r. C;\3sar, 2 Mod. 66 239 
 
 c. Hill, 3 B. & Ad. 304 ; I L. J. K. B. 107 : 39 R. R. 354 ... 227 
 
 V. William.s, 28 L. T. 232 ; 21 W. R. 386 161 
 
 Masper and Wife v. Brown, 1 C. P. D. 97 ; 45 L. J. C. P. 203 ; 
 
 34L. T. 254 : 24 W. H. 469 257 
 
 ^latthews v. London Street Tramways Co., 58 L. J. t^. B. 12 ; 
 
 52 J. P. 774 ; 60 L. T. 47 186 
 
 May '•. Burdctt. 9 Q. B. 101 ; 16 L. J. Q. B. 64; 10 Jur. 692 ; 
 
 72R. R.189 180 
 
 Mayhew r. Herrick, 7 C. B. 229 ; 18 L. J. C. P. 179 ; 13 Jur. 1078 : 276 
 Mears r. London and South Western Rail. Co., 11 C. B. (N.S.) 854 ; 
 
 31 L. J. C. P. 220 ; 6 L. T. 190 274 
 
 Mcdiann, The, [1900] A. C. 113; 69 L. J. P. 35 ; 82 L. T. 95 ; 
 
 48 W. R. 398; 9 Asp. M. C. 41 90 
 
 Mee r. Cruickshank. >i6 L.T. 706 ; 66 J. P. 89 250 
 
 Mellors v. Shaw, 30 L. J. Q. B. 333 ; 1 B. & S. 437 ; 7 Jur. (N.s.) 
 
 845;9W. R. 748 68 
 
 Merest v. Harvey, 5 Taunt. 441 ; 1 Marsh. 139 ; 15 R. R. 548 ... 97 
 — Merivale v. Carson, 20 Q. B. D. 275 ; 52 J. P. 261 ; 58 L. T. 331 ; 
 
 36W. R.231 129 
 
 Merryweather /■. Nixon, 8 T. R. 186 ; 16 R. R. 810 98 
 
 Mersey Docks r. Gibhs, L. R. I H. L. 93 ; 35 L. J. Ex. 225 ; 12 Jur. 
 
 (N.s.) 571 ; 14 L. T. 697 ; 14 W. R. 872 32, 45 
 
 Metropohtan Association v. Petch, 27 L. J. C. P. 330 ; 5 C. B. (N.S.) 
 
 .504 ; 4 Jur. (n.s.) 1000 240 
 
 Metropolitan Asylum District Board r. Hill, 6 App.Cas. 193 ; 45 J. P. 
 
 664 ; 50 L.J. Q. B. 3.53 ; 44 L. T. 653 ; 29 W. K. 617 ... 208 
 
 Metropolitan Bank v. Pooley, 10 App. Cas. 210 ; 49 J. P. 756 ; 
 
 54 L. J. Q. B. 449 ; 53 L. T. 163 ; 33 W. R. 709 146 
 
 Metropolitan lioard of Works v. McCarthy, L. R. 7 H. L. 243 ; 
 
 43L.J. C. P. 385; 31 L. T. 182; 23 W.R. 115 ... ... 198 
 
 Metropolitan Rail. Co. c. Jackson, 3 App. Cas. 193 ; 47 L. J. C. P. 
 
 303; 37 L. T. 679; 26 W.R. 175 190,191 
 
 Metropolitan Saloon Omnibus Co. e. Hawkins, 28 L. J. Ex. 201 ; 
 
 4 H.&N. 87; 5 Jur. (N.s.) 226; 7 W.R. 265 ... 117
 
 xxxviii Table of Cases Cited. 
 
 PAGE 
 
 Meux r. Great Eastern Rail. Co.. [1S95] 2 Q. B. 387 : 59 J. P. 662 ; 
 
 64 L. J. Q. B. 657 : U R. 620 : 73 L. T. 247 ; 43 \V. R. 680 ... 38 
 Miller r. David, L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 30 L. T. 58 ; 
 
 22W. R.332 125 
 
 r. Dell, [1891] 1 Q. B. 468; 60 L. J. Q. B. 401 ; 63 L. T. 
 
 693 ; 39 W. R. 342 82 
 
 (-.Hancock, [1893] 2 Q. B. 177; 57 J. P. 758 ; 4 li. 478: 
 
 69 L. T. 214 : 41 W. R. 578 177, 182. 211 
 
 Millward r. Midland Rail. Co.. 14 Q. B. D. 68 ; 49, J. P. 453 ; 
 
 .54 L. J. Q. B. 202 : 52 L. T. 255 ; 33 W. R. 366 74 
 
 Miner r. Gilmour, 12 Moo. P. C. 131 : 7 W. R. 328 225 
 
 Miss. Cent. R. R. r. Caruth, 51 Miss. Rep. 77 87 
 
 Mitchell r. Crassweller, 22 L. J. C. P. 100 : 13 V. B. 237 ; 17 Jur. 
 
 716 : 1 W. R. 1.53 58 
 
 Moffatt r. Bateman. L. R. 3 P. C. 115 ; 22 L. T. 140 ; 6 Moo. P. C. 
 
 (N.s.) 369 190 
 
 Mogul Steamship Co., Limited r. McGregor. 23 Q. B. D 598 ... 174 
 c. -, [1892] A. C. 25; 
 
 56 J. P. 101 ; 61 L. J. Q. B. 295 ; 66 L. T. 1 ; 40 W. R. 337 ; 
 
 7Asp.M. C. 120 174 
 
 Monson r. Tussaud. [1894] 1 Q. B. 671 ; 58 J. P. 524 ; 63 L. J. Q. B. 
 
 454 ; 9 R. 177 ; 70 L. T. 335 101,118 
 
 Moone r. Rose, L. R. 4 Q. B. 486 ; 38 L. J. Q. B. 236 ; 20 L. T. 606 ; 
 
 17W. R. 729 2.50 
 
 Morgan v. Hutchins, 38 W. R. 412 ; 59 L. J. Q. B. 197 73 
 
 r. Lingen, 8 L. T. (N.s.) 800 117 
 
 r. London General Omnibus Co., 13 Q. B. D. 832 ; 48 J. P. 
 
 503 ; 53 L. J. Q. B. 352 ; 51 L. T. 213 ; 32 W. R. 759 : 72 
 V. Vale of Neath Rail. Co., L. R. 1 Q. B. 149 ; 5 B. & S. 736 ; 
 
 85 L. J. Q. B. 23 ; 13 L. T. 564 ; 14 W. R. 144 64, 65 
 
 " Morocco Bound " Syndicate. Limited r. Harris. [1895] 1 Ch. 534 ... 43 
 Mortimer v. Cradock,"l2 L. J. C. P. 166 ; 7 Jur. 45 : 61 R. B. 784 : 91 
 
 Mostyn r. Fabrigas, 1 Sm. L. C. 628 ; 1 Cowp. 161 42 
 
 Moulton v. Edmonds. 1 De G. E. & J. 250 ; 29 L. J.Cb. 181 : 6 Jur. 
 
 (N.s.) 305 ; 8 W. R. 153 82 
 
 Moyle r. Jenkins, 8 Q. B. D. 116 ; 51 L. J.Q. B.112 : 46 L.T. 472 ; 
 
 .30 W. R. 324 74 
 
 Mullett r. Mason, L. R. 1 C. P. 559 ; 1 H. & P. 779 : 35 L. J. C. 1'. 
 
 299 ; 12 Jur. (N.S.) 547 ; 14 L. T. 558 ; 14 W. R. 898 93 
 
 Mumford /■. Oxford, Worcester and Wolverhampton Rail. Co.. 
 
 25 L. J. Ex. 265 240 
 
 Mundav r. Thames, etc. Co., 10 Q. B. D. 59 ; 52 L. J. Q. B. 119 : 
 
 47"L. T. 351 72 
 
 3Iunster, TJie, 12 T.L. 11. 26i 90 
 
 Munster r. Lamb, 11 Q. B. D. 588 : 47 J. P. 805 ; 52 L. J. Q. B. 
 
 726 : 49 L. T. 252 ; 32 W. R. 248 133 
 
 Murray v. Hall. 7 C. B, 441 ; 18 L. J. C. P. 161 ; 13 Jur. 262 ... 263 
 
 N. 
 
 Nat. Prov. Plate Glass Co. r. Prudential Ass. Co., 
 
 46 L. J. Ch. 871 ; 37 L. T. 91 ; 26 W. R. 26 . 
 National Telephone Co. v. Baker, [1893] 2 Ch. ISo ; 5 
 
 62 L. J. Ch. 699 ; 3 R. 318 ; 68 L. T. 283 
 Neill r. Duke of Devonshire, 8 App. Cas. 135 : 31 W 
 Nelson r. Liverpool Brewery Co., 2 C. P: D. 311 ; 25 W. K. 877 : 
 
 46 L. J. C. P. 675 210 
 
 6 CI 
 
 1. 1). 
 
 757 ; 
 
 108 
 
 .57 . 
 
 J. V. 
 
 373 ; 
 
 208 
 
 K. < 
 
 >22 
 
 
 235
 
 Table of Cases Cited. xxxix 
 
 PAGE 
 Nevill r. Fine Arts, etc. Co.. [1897] A. C. 6S ; (U J. P. .-.00 ; 6(1 L. J. 
 
 Q. B. ly.-i ; 7.-. L. T. 606 120 
 
 Newlaiuis r. National Employers' Accident Assurance Co.. ")1 L .1. 
 
 Q. B. 42.S ; 4ri» J. P. Cl'S ; -y.i L. T. 242 165 
 
 Newton ;•. Cubitt, .") C. B. (n.s.) 627 ; 2S L. J. C. P. 176 ; .") Jiir. 
 
 (N.S.) 847 237 
 
 Nicholls r. Bastard, 2 C. :SL k K. 651) ; 1 Tvr. .V: G. 156; 1 Cale. 
 
 295 : 5 L. J. Ex. 7 ' 276 
 
 Nichols r. Marsland, L. K. 10 Ex. 255 ; on appeal, 2 Ex. I). 1 : 
 
 46 L. J. Ex. 174 ; 35 L. T. 725 ; 25 W. K. 173 ... 17, 19, 20, 202 
 
 Nitrate Phosphate Co. r. London and St. Katliarine Docks Co., 
 
 9 Ch. I). 503 ; 39 L. T. 433 ; 27 W. K. 267 27 
 
 Norris r. Baker, 1 Roll. Rep. 393, fol. 15 239 
 
 Northampton r. Ward, 1 VVils. 114 ; 2 Str. 1238 262 
 
 North Eastern Rail. Co. r. Elliott, 29 L. J. Ch. 80S 216 
 
 Notley r. Buck, 6 B. & C. 160 ; 6 L. J. (O.s.) K. B. 271 ; 2 M. .V 
 
 R. 68 279 
 
 
 168 
 
 
 249 
 
 9 Q. B. 219 ; 
 
 
 
 251 
 
 
 121 
 
 28 L.T. 197": 
 
 
 ... 13. 31 
 
 , 194 
 
 T. Q. B. 534 : 
 
 
 
 ISO 
 
 
 73 
 
 o. 
 
 Odger c. Mortimer, 28 L. T. 472 130 
 
 Oliver r. Bank of England, [1902] 1 Ch. 61u : 71 L.J. Ch. 3SS 
 86 L. T. 248 ; 50 \V. R. 340 ; 7 Com. Cas. 89 
 
 Olliett r. Bessey, 2 W. Jones, 214 
 
 Onslow and Whalley's Case, Queen r. Castro, L. R. 
 
 28 L. T. 222 ; 12 Cox C. C. 371 
 
 Onslow r. Home. 2 W. Bl. 750 ; 3 Wils. 177 . . 
 -S. ; Osborn r. Gillett. L. R. 8 Ex. 88 ; 42 L. J. Ex. 53 ; 
 
 ^'^- 21W. R. 409 
 
 Osborne r. Choqueel, [1896] 2 Q. B. 109 ; 65 L. 
 74 L.T. 786 ; 44 \V. R. 575 
 
 v. Jackson, 11 Q. B. D. 619 ; 48 L. T. 642 
 
 Oughton r. Seppings, 1 B. & Ad. 241 ; 8 L. J. (o.s.) K. B. 394 ; 
 
 35 R. R. 284 279 
 
 Oxley r. Watts, 1 T. R. 12 ; 1 R. R. 133 i'7(;. 277 
 
 Page r. Edulgee, L. R. 1 P. C. 127 ; 12 Jur. (N.s.) 361 ; U L. T. 
 
 176 275 
 
 Paley v. Garnett, 16 Q. B. D. 52 ; 50 J. P. 469 ; 34 W. R. 295 ... 73 
 
 Palmer r. Paul, 2 L.J. Ch. 154 106 
 
 Panton c. Williams, 2 Q. B. 169 ; 1 G. & 1). 504 : 10 L. J. Ex. 545 ; 
 
 57 R. R. 631 142 
 
 Paris V. Levy, 30 L. J. C. P. 1 1 ; 9 C. B. (x.s.) 342 ; 7 Jur. (x.s.) 
 
 289 ; 3 L. T. 323 ; 9 W. R. 71 130 
 
 Parker r. London County Council, [1904] 2 K. B. 501 ; 73 L. J. 
 K. B. 561 ; 68 J. P. 239 ; 90 L. T. 415 ; 52 W. R. 476 ; 
 
 2 L. G. R. 662 ; 20 T. L. R. 271 85 
 
 Parkins v. Scott, 1 H. & C. 153 ; 31 L. J. Ex. 331 ; 8 Jur. (x.s.) 
 
 593 ; 6 L. T. 394 ; 10 W. R. .562 137 
 
 Partheriche c. Mason, 2 Chit. 658 234 
 
 Partridge t: Scott, 3 M. & W. 220 ; 7 L. J. Ex. lOl ; 19 R. R. 578 : 216 
 Paaley r. Freeman, 2 Sm. L. C. 71 ; 3 T. K. 51 ; 1 R. R. 634 : I61), 161 
 Patrick r. Colerick, 3 M. & W. 485 ; 7 L. J. Ex. 135; 49 R. K. 
 
 696 260
 
 xl Table of Cases Cited. 
 
 PAGE 
 Paul V. Summerhayes, 4 Q. B. D. 9 ; 48 L. J. M. C. 3:^ ; 39 L. T. 
 
 574 : 27 W. K. 215 ; 14 Cox C. C. 202 259 
 
 Payne r. Koc^ers, 2 H. Bl. 350 ; 3 K. R. 415 210 
 
 Peake r. Oldham, 2 W. Bl. 960 ; Covvp. 275 123 
 
 Pearce r. Scotcher, 9 Q. B. D. 162 : 46 J. P. 248 : 46 L. T. 342 ... 234 
 Pears^on c. Spencer. 1 B. & S. 584 ; 7 Jur. (x.s.) 1195 ; 4 L. T. 
 
 769 229 
 
 ^/ Peek r. Derry, 37 Ch. D. 541 : 57 L. J. Cli.l347 : 59 L. T. 78 ; 
 
 36 W. P. 899 163 
 
 v. Gurney, L. R. 6 H. L. 377 ; 43 L.J. Ch. 19 : 22 W. R. 29 : 167 
 
 Peer r. Humphrey, 2 A. & E. 495 : 4 N. & M. 430 : 1 H. .t W. 28 ; 
 
 4 L. J. K. B. 100; 41 R. R. 471 271 
 
 Pendarves c. Munro, [1892] 1 Ch. 611 ; 61 L. J. Ch. 494 220 
 
 Penn r. Ward, 2 C. M. & R. 338 247 
 
 — . Penny v. Wimbledon District Council, [1899] 2 Q. B. 72 ; 63 J. P. 
 
 406 ; 68 L. J. Q. B. 704 ; 80 L. T. 615 ; 47 W. R. 565 ... 55 
 
 Perry r. Eames, [1891] 1 Ch. 658 ; 60 L. J. Ch. 345 ; 64 L. T. 438 ; 
 
 39W. R. 602 222 
 
 Peter r. Kensal, 6 B. & C. 703 : 5 L. J. (o.S.) K. B. 282 ; 30 R. R. 
 
 504 237 
 
 Petrel, The, [1893] P. 320 ; 62 L. J. P. 92 ; 1 R. 651 ; 70 L. T. 41 7 ; 
 
 7Asp. M. C. 434 67 
 
 Phillips V. Barnet, 1 Q. B. D. 436 ; 45 L. J. Q. B. 277 ; 34 L. T. 
 
 177 ; 24 W. R. 345 44 
 
 V. Eyre, L. R. 4 Q. B. 225 : 9 B. & S. 343 ; 38 L. J. Q. B. 
 
 113 ; 19 L. T. 770 : 17 W. R. 375 : afhrmed L. R. 
 6 Q. B. 1 ; 10 B. & S. 1004 : 40 L. J. Q. B. 28 ; 
 
 22 L. T. 869 43 
 
 • V. Halliday, [1891] A. C. 231 ; 55 J. P. 741 ; 61 L. J. ti. B. 
 
 210; 64 L. T. 745 218 
 
 V. Homfray. 24 Ch. ]j. 439 ; 52 L. J. Ch. 833 ; 49 L. T. 5 ; 
 
 32 W. R. 6 ... 110 
 
 r. Jansen, 2 Esp. 624 ... ... ... ... ... ... 125 
 
 c. Low, [1892] 1 Ch. 47 : 61 L. J. Ch. 44 : 65 L. T. .-52 ... 220 
 
 r. London and South Western Rail. Co., 4 Q. B. 1). 406 ... 87, 91 
 
 Pictou (Municipality of) v. Geklert. [1S93]A. C. 524 ; 63 L.J. P. C. 
 
 37 ; 1 K. 447 :'69L. T. 510 : 42 W. R. 114 47 
 
 Pippin V. Sheppard, 11 Price, 400 : 25 R. R. 746 38, 178 
 
 Pittard r. Oliver, [18911 1 Q. B. 474 ; 55 J. P. 100 : 60 L. J. Q. B. 
 
 219; 64L. T. 758;'39 W. R. 311 133 
 
 Pneumatic Tyre Co. r. Puncture Proof Tyre Co., 15 R. P. C. 405 ... 88 
 PoUey r. Fordham, [1904] 2 K. B. 345 ; 68 J. P. 321 ; 73 L. J. K. B. 
 
 (587 ; 90 L. T. 755 ; 53 W. R. 188 ; -20 T. L. R. 435 84 
 
 Popi)lcwell r. Hodkinson. L. R. 4 Ex. 248: 38 L. J. Ex. 126; 
 
 20 L. T. 578 ; 17 W. R. 806 213, 215 
 
 Potter V. Faulkner, 1 B. & S. 800 ; 31 L. J. Q. B. 30 ; 8 Jur. (x.s.) 
 
 259; 5L. T. 455; 10 W. R. 93 70 
 
 Potts V. Smith, L. R. 6 Eq. 311 ; 38 L. J. Ch. 58 ; 18 L. T. 629 ; 
 
 16W.R. 891 224 
 
 Poulton r. London and South Western Hail. Co., L. li. 2 Q. B. 534 ; 
 
 8 B. k S. 616 ; 36 L. J. (^. B. 294 : 17 L. T. 11 ; 16 W. R. 
 
 309 60 
 
 Powell f. Fall, 5 Q. B. D. 597 ; 49 L. J. Q. B. 428 ; 43 L.T. 562 ... 35 
 I'raed r. Graham, 24 Q. B. 1). 53 ; 59 L. J. Q. B. 230 ; 38 W. R. 
 
 103 86, 88 
 
 Preston r. Luck, 27 Ch. D. 497 101 
 
 Pretty r. Bickmoie, L. R. 8 C. P. 401 ; 28 L. T. 7n4 ; 21 W. R. 
 
 733 210
 
 Table op Cases Cited. xli 
 
 PAGE 
 Prcvidi r. Gatti. 86 W. R. (570 ; 52 J. P. 04ti ; .".S L. T. 7()2 ... 74 
 
 I'liestley r. Fowler, 3 M. & W. 1 ; M. .V: H. 80.". ; 7 L. .1. Kx. 42 ; 
 
 1 .Iiir. '.187 ; 40 K. R. 4'.(r5 6-i 
 
 rriulential Assurance Co. r. Knott, L. R. 10 Cli. 142 ; 44 L. J. Cli. 
 
 192 ; 31 L. T. 8(56 ; 28 VV. R. 249 104 
 
 rullnian r. Hill & Co., [1891] 1 Q. B« .-.24 ; CO L. .1. Q. 15. 299 : 
 
 (;4 L.T. 691 : 39 W. R. 263 127,131 
 
 Tursell r. Horn, 8 A. Jt E. 602 -'-^3 
 
 Pym /■. Great Northern Rail. Co., 4 B. & S. 396 ; 32 L. J. Q. I?. 377 ; 
 
 10 Jur. (x.s.) 199 ; 8 L. T. 734 ; 11 W. R. 922 193, 194 
 
 Q. 
 
 Qnarman r. Burnett, 6 M. k W. 499 ; 4 Jur. 969 ; 9 L. J. Ex. 308 ; 
 
 r.:. R R. 717 •• — ^7 
 
 Quartz Hill, etc. Co. r. Eyre, 11 C^. B. D. 674 ; J2 L. J. Q. B. 488 ; 
 
 49 L. T. 249 ; 31 W. R. 668 1^0, 147 
 
 Quinn r. Leathern. [1901] A. C. 495 ; 65 J.B. 708 ; 70 L. J. B. C. 76 ; 
 
 85 L. T. 289 ; 50 W. R. 139 170,174 
 
 E. 
 
 11. V. Brompton County Court Judge, [1893] 2 Q. B. 195 ; 57 J. B. 
 
 (;48 ; 62 L. J. C^. B. 604 ; 5 R. 462 ; 68 L. T. 829 ; 41 W. R. 
 
 648 
 
 ^ r. Burdett, 4 B. cV: Aid. 95 : 22 R. R. 539 
 
 — v. Huggins, 2 Ld. Ravm. 1583 ; 2 IStr. 882 
 
 — r. Jackson, [1891] 1 Q. B. 671 ; 55 J. B. 246 ; 60 L. J. Q. B. 346 ; 
 
 64 L. T. 679; 39 W. R. 407 2^^ 
 
 — V. Lefroy, L. R. 8 Q. B. 134 ; 42 L. J. <,2. li. 121 ; 28 L. T. 132 ; 
 
 21 \V. R. 332 251 
 
 — r. Light, 27 L. J. M. C. 1 ; Dears, i; B. 332 ; 3 Jur. (N.S.) 1130 ; 
 
 7 Cox C. C. 389 252 
 
 — c. Pease, 4 B. & Ad. 30 ; 1 Nev. & M. 6viU : 2 L. J. M. C. 26 ; 
 
 38R. 11. 207 209 
 
 — c. Revel. 1 Stra. 421 251 
 
 — r. Rosewell, 2 8alk, 259 239 
 
 Radley r. London and North Western Rail. Co., 1 App. Cas. 754 ; 
 
 46L. J. Ex. 573 ; 35 L. T. 637 ; 25 W. R. 147 185 
 
 Ramuz r. Southend Local Board, 67 L. T. 169 ... ... ... 104 
 
 Rawlings r. Till, 3 M. .:sc W. 28 243 
 
 Rawstron c. Taylor, 11 Ex. 369; 25 L. J. Ex. ;^3 226 
 
 Rayner r. Mitchell, 2 C. P. D. 357 ; 25 W. R. 633 u8 
 
 Read r. Coker, 13 C. B. 850 : 1 C. L. K. 74(i ; 22 L. J. C. P. 201 ; 
 
 17 Jur. 990; 1 W. R. 413 242 
 
 c. Edwards, 34 L. J. C. P. 31 ; 5 N. R. 4.s ; 17 C. B. (N.s.) 245 ; 
 
 IIL. T. 311 2<3 
 
 r. Great Eastern Rail. Co., L. R. 3 Q. B. 555 ; 9 B. .V: S. 714 ; 
 
 37 L. J, Q. B. 278 ; 18 L. T. 82 ; 16 W. R. 1040 l'-»l 
 
 Keddie r. Scoolt, 1 Peake, 316 1"^' 
 
 Jiedgrave r. llurd, 2o Ch. D. 1 ; 51 L. X. Ch. 118 ; 45 L. T. 489 ; 
 
 30\V. R. 251 1^' 
 
 251 
 126 
 
 180
 
 xlii Table of Cases Cited. 
 
 PAGE 
 Reed v. Xutt, 24 Q. B. D. G69; 54: J. P. 599 ; 59 L. J. Q. B. 311 ; 
 
 62 L. T. 635 ; 38 W. R. 621 ... 257 
 
 Reedie r. Loudon and North Western Rail. Co., -t Ex. 244 , 6 Rail. 
 
 Cas. 184 ; 20 L. J. Ex. 65 "^ 
 
 Reinhardt v. Mentasti, 42 Ch. D. 685 ; 58 L. J. Ch. 787 ; 61 L. T. 
 
 328 ; 38 W. R. 10 205 
 
 Rhodes v. Moules, [1895] 1 Ch. 236 : 64 L. J. Ch. 122 ; 12 R. 6 : 
 
 71 L. T. 599 ; 43 W.R. 99 77 
 
 V. Smethurst, 4 M. & W. 42 ; 1 H. & H. 237 ; 7 L. J. Ex. 
 
 273 ; 2 Jur. 893 ^^ 
 
 Rice V. Reed, [1900] 1 Q. B. 54 ; 69 L. J. Q. B. 33 ; 81 L. T. 410 : 279 
 Rich r. Basterfield, 4 C. B. 783 : 2 Car. & K. 257 ; 6 L. J. C. P. 273 ; 
 
 llJur. 696 ; 72 R. R. 716 210 
 
 Richards I-., Jenkins, 17 Q. B. 1). 544 266,275 
 
 v. Rose. 9 Ex. 218 ; 2 C. L. R. 311 ; 23 L. J. Ex. 3 ; 17 Jur. 
 
 1036 217 
 
 Richardson r. Atkinson, 1 Stra. 576 ... ... ... ... ••• 269 
 
 . V. Mellish, 2 Bing. 229 ; 9 Aloore, 435 ; 1 Car. & P. 241 ; 
 
 R. & M. 66 ; 3 L. J. (O.s.) C. P. 265 : 27 1^ R. 603 : 94 
 
 r. Metropolitan Rail. Co., L. R. 3 C. P. 374 n ; 37 L. .1. 
 
 C. P. 300 ; 18 L. T. 721 : 16 W. R. 909 184 
 
 V. North Eastern Rail. Co., L. R. 7 C. P. 78 ; 41 L. J. 
 
 C. P. 60 ; 26 L. T. 131 ; 20 W. R. 461 178 
 
 r. Silvester, L. R. 9 Q. B. 34 ; 43 L. J. Q. B. 1 ; 29 L. T. 
 
 395 ; 22 W.R. 74 3'>2 
 
 Riding r. Smith, 1 Ex. D. 91 : 24 W. R. 487 : 45 L. J. Ex. 281 ; 
 
 34L. T. 500 123 
 
 Roberts r. Rose, L. R. 1 Ex. 82 ; 4 H. .V: C. 103 ; 35 L. .J. Ex. 62 ; 
 
 12 Jur. (N.S.) 78 ; 13 L. T. 471 ; 14 W. R. 225 238 
 
 Robertson r. Hartopp, 43 Ch. D. 484 ; 59 L. J. Ch. 553 ; 62 L. T. 
 
 Robinson r.* Duleep" Singh. 11 Ch. D. 798 ; 48 L. J. Ch. 758 ; 39 L. T. 
 
 313;27W. R. 21 232 
 
 Roope r. D'Avigdor, 10 Q. B. D. 412 ; 47 J. P. 248 ; 48 L. T. 761 ... 28 
 
 Booth r. Wilson, 1 B. & A. 59 : 18 P. R. 431 276 
 
 Rose V. Buckett, [1901] 2 K. B. 449 ; 70 L. J. K. B. 736 ; 84 L. T. 
 
 670:.5OW. R. 8 ... 112 
 
 Rourke /•. White Moss Co., 2 C. P. D. 205 : 46 L. J. C. P. 283 : 
 
 36 L. T. 49 : 25 W. R. 263 57 
 
 Rovvbotham /•. Wilson, 8 H. L. Cas. 348 ; 30 L. J. Q. B. 49 ; 6 Jur. 
 
 (N.S.) 965 : 2 L. T. 642 213 
 
 Royal Aquarium, etc. Society r. Parkinson, [1892] 1 Q. B. 431 : 
 
 56 J. P. 404 ; 61 L. J. Q."B. 409 ; HG L. T. 513 ; 40 W. R. 450 : 
 
 132-134 
 Royal Baking Powder Co. r. Wright, Crossley & Co., 15 Rep. I'at. 
 
 Cas. 677 ■ ••• 125 
 
 Ruabon Brick Co. r. Great Western Rail. Co., [1893] 1 Ch. 427 ; 
 
 62 L. J. Ch. 483 ; 2 R. 237 ; 68 L. T. 110 ; 41 W. R. 418 ... 216 
 Ruddiman v. Smith, 60 L. T. 708 ; 53 J. P. 518 ; 37 W. R. 528 ... 60 
 Russell V. :Mcn of Devon, 2 T. R. 667 ; 1 R. R. 585 199. 200 
 
 V. Shenton, 3 Q. B. 449 ; 2 G. & D. 573 : 11 L. J. Q. B. 
 
 2.S9 ; 6 Jur. 1059 ; 61 R. R. 249 210 
 
 V. Watts, 10 Api). Cas. 590 ; .50 J. P. 68 ; 55 L. J. Ch. 158 ; 
 
 53 L. T. 876 ; 34 W. R. 277 220 
 
 Rust V. Victoria Dock Co., 5() L. T. 216 ; 36 Ch. D. 113 : 35 ^^ . U. 
 
 673 8^ 
 
 Ryan u. Clark, 14 Q. B. 65 ••• 262 
 
 Rylands v. Fictclier, L. R. 3 H. L. 330 ; 37 L. J. Kx. 161 ; 19 L. 1. 
 ^ 220 - - - 177,202
 
 
 ik; 
 
 
 20 
 
 IS L. T. 
 
 
 183, 
 
 248 
 
 3,-, L. T. 
 
 
 Table of Cases Cited. xliii 
 
 PAGE 
 
 S. v. a., 16 Cox C. C. 566 3" 
 
 Sadgrove r. Hole. [1001] 2 K. B. 1 ; 70 L. J. K. 15. 4.-).-) ; 84 L. T. 
 
 647 ; 49 W. R. 473 127 
 
 Sadler r. South Staffordshire Tramwavs Co., 23 Q. P.. 1). 17 ; .•)3 J. V. 
 
 694 ; 58 L. J. Q. B. 421 ; 37 W.H. 5S2 244 
 
 Sanitary Commissioners of Gibraltar r. ( trtila. 15 App. Cas. 400; 
 
 59L. J. r. C. 95; 63L. T. 5S 209 
 
 Saunders v. Merryweather, 35 L. J. Ex. 115 ; 3 II.& e'.902 ; 11 .lur. 
 
 (N.s.) 655 ; 13 W. 11. 814 2()t; 
 
 Sayers v.. Collyer, 28 Ch. D. 103 : 49 .1. 1'. 244 : 54 L. J. Cii. 1 ; 
 
 51 L. T, 723; 33 W, R. 91... I'H 
 
 Scott r. London Dock Co., 34 L. J. Ex. 22u ; 3 H.^ C. 596 ; 11 Jur. 
 
 Cx.S.) 204 ; 13 L. T. 148 ; 13 W. R. 410 189, 190 
 
 r. Nixon. 3 Dru. & War. 388 ; 2 Con. >.^ L. 185 ; 6 Ir. Eq. 
 
 R.8 82 
 
 r. Rape, 31 Ch. D. 554 ; 50 J. R. 645 ; 55 L. J. Ch. 426 ; 
 
 54 L. T. 399 ; 34 W. R. 465 220 
 
 V. Sampson, 8 Q. B. D. 491 ; 46 J. R. 408 ; 51 L. J. Q. B. 
 
 380 ; 46 L. T. 412 ; 30 W. R. 543 
 
 r. Shepherd. 2 Wm. Bl. 894 ; 3 Wils. K. B. 403 
 
 r. Stansticld, L. R. 3 Ex. 220 ; 37 L. J. Ex. 155 ; 
 
 572; 16 W. R. 911 
 
 Seaman i: Netlierclift, 2 C. R. D. 53 ; 46 L. J. C. R. 128 
 
 784; 25 W. R. 159 133 
 
 Seear v. Lawson, 15 Ch. D. 426 ; 49 L. J. Bk. 69 ; 42 L. T. 893 : 
 
 28W. R. 929 151) 
 
 Senior r. Ward, 28 L. J. Q. B. 139 ; 1 El. & El. 385 ; 5 Jur. (N.s.) 
 
 172;7W. R. 261 64 
 
 Seroka r. Kattenburg, 17 Q. B. D. 177 : 55 L. J. Q. B. 375 ; 54 L. T. 
 
 649 ; 34 W. R. 543 48.49 
 
 Serrao r, Noel, 15 Q. B. D. 549 H'l 
 
 Seward v. The Vera Crvz, 10 App. Cas. 59 : 49 J. R. 324 ; 54 L. J. R. 
 
 9 ; 52 L. T. 474 ; 33 W. R. 477 ; 5 Asp. M. C. 386 193 
 
 Shaffers r. General Steam Navigation Co., 10 Q. B. D. 356 ; 47 J. R. 
 
 327 ; 52 L. J. Q. B. 260 ; 48 L. T. 228 ; 31 W, R. 606 ... 73 
 
 Shelter r. City of London Electric Lighting Co.. [1895] 1 Ch. 287; 
 
 64 L. J. Ch. 216 ; 12 R. 112 ; 72 L. T. 34 ; 43 W. R. 238 ... 101 
 
 Shepheard r. Whitaker, L. R. 10 C. R. 502 ; 32 L. T. 402 118 
 
 Shepperd r. Midland Rail. Co.. 20 W. R. 705 ; 25 L. T. 879 ... 25 
 
 Simmons v. Mitchell, 6 App. Cas. 156 ; 45 J. R. 237 ; 50 L. J. P. C. 
 
 11 ; 43 L. T. 710; 29 W. R. 401 124 
 
 Simpson v. Mayor of Godmanchester. [1896] 1 Ch. 214 218 
 
 r. Savage, 26 L. J. C. R. 50 ; 1 C. B. (x.s.) 347 ; 3 Jur. 
 
 (N.s.) 161 ; 5 W. R. 147 240 
 
 Sims r. Brutton, 5 Ex. 802 ; 20 L. J. Ex. 41 78 
 
 Simson r. General Omnibus Co.. L. R. 8 C. R. 390 ; 42 L. J. C. R. 
 
 112 ; 28 L. T. 560 ; 21 W. R. 595 180 
 
 -_.Six Carpenters' Case, 1 Sm. L. C. 132 ; 8 Coke, 146a 261 
 
 Slater r. Swann. 2 Stra. 892 '-'^2 
 
 Smith )•. Andrews, [1891] 2 Ch. 678 : 65 L.T. 175 234 
 
 c. Baker, L. R. 8 C. R. 350 ; 42 L. J. C. R. 155 ; 28 L. T. 
 
 637 :i79 
 
 r. Baker & Sons, [1891] A. C. 325 ; 55 J. R. (UJO ; 60 L. J. Q. B. 
 
 683 ; 65 L. T. 467 ; 40 W. R. 392 68. 69 
 
 V. Chadwick, 9 Apn. Cas. 187 : 48 J. P. (U4 : 53 L. J. Ch. 873 : 
 
 50L. T, 697; 32 W. R. 687 161 162
 
 I 
 J. Q. B. 122 : 33 L. T. 722 ; 
 
 ^AGE 
 
 
 181 
 
 73 L. j'.'k. B. 894 ; 'Jl L. T. 
 
 
 
 203 
 
 9 Ex. 5(J2 ; 2 C. L. R. 208 "; 
 
 
 
 2G8 
 
 xliv Table of Cases Cited. 
 
 Smith (•. Cook. 1 Q. B. D. 79 ; io L. 
 
 24 W. R. 20G 
 
 r. Giddy. [1904] 2 K. B. 448 : 
 
 296: 20 T. L. R. 596... 
 r. Lloyd, 23 L. J. Ex. 194 ; 
 
 2 W. R. 271 
 
 '•. Thackerah, L. R. 1 C. l\ r^Qi ; 35 L. J. C. P. 276 ; 12 Jur. 
 
 (N.s.) 545 ; 14 L. T. 761 : 14 W. R. 832; 1 H. & R. 
 
 615 213,215 
 
 r. Webber. 1 A. & E. 119 ; 3 H. & N. 746 ; 3 L. J. (U.S.) K. B. 
 
 148 ; 40 R. R. 268 265 
 
 Snag r. Gee, 4 Co. Rep. 16 124 
 
 Snowden r. Baynes, 25 Q. B. D. 193 ; 55 J. 1'. 133 ; 59 L. J. Q. B. 
 
 325 ; 38 W. H. 744 73 
 
 Soltaii r. De Held. 2 Sim. (N.S.) 133 ; 21 L. J. Ch. 153 ; 16 Juv. 
 
 326 102 
 
 Somerset (Duke of) r. Fogwell, 5 B. & C. 875 ; 8 D. & R. 747 ; 5 L. J. 
 
 (O.S.)K. B. 49; 29 R. R.449 234 
 
 Southcote V. Stanley. I H. & N. 247 ; 25 L. J. Ex. 339 182 
 
 Southee r. Denny, 17 L. J. Ex. 151 ; 1 Ex. 196 125 
 
 South Hetton Coal Co. r. North Eastern News Association, [1894] 
 
 I Q. B. 133 ; 58 J. V. I'M] ; 63 L. J. Q. B. 293 ; 9 R. 240 ; 
 
 68 L. T. S44 ; 42 W. R. 322 115. 120 
 
 South Staffordshire Water Co. r. Sharman. [1896] 2 Q,. B. 44 ; 
 
 65 L. J. Q. B. 460 ; 74 L. T. 761 ; 44 W. R. 653 275 
 
 Spackman r. Foster, 11 Q. B. D. 99 ; 47 J. T. 455 ; 52 L. J. Q. B. 
 
 418 ; 48 L. T. 670 ; 31 W. R. 548 ... 82 
 
 Spark r. Heslop, 28 L. J. Q. B. 197 ; 1 El. & El. 563 ; 5 Jur. (N.s.) 
 
 730 ; 7 W. R. 312 91 
 
 Speake r. Hughes, [1904] 1 K. B. 138 ; 73 L. J. K. B. 172 ; 89 L. T. 
 
 576 122 
 
 Speight r. Gosnay, 60 L. J. Q. B. 231 ; 55 J. V. 501 123 
 
 Spiering r. Andrea, 30 Am. Law Rep. 744 126 
 
 Spoor r. Green, L. R. 9 Ex. 99 ; 43 L. J. Ex. 57 ; 30 L. T. 393 : 
 
 22W. R. 547 81 
 
 St. Helens Co. r. Tipping. 11 H. L. Cas. 642 ; 35 L. J. Q. B. 66 : 
 
 II Jur. (N.s.) 785 ; 12 L. T. 776 ; 13 W. R. 1083 ... 204, 205 
 Stanford v. Hurlstone. L. R. 9 Ch. 116 ; 30 L. T. 140 ; 22 W. R. 422 : 103 
 Stanley r. Powell, [1891] 1 Q. B. 86 ; 55 J. P. 327 ; 60 L. J. Q. B. 
 
 52 ; 63 L. T. 809 ; 39 W. R. 76 17, 244 
 
 Starkey r. Bank of England, [1903] A. C. 114 ; 72 L. J. Ch. 402 ; 
 
 88 L. T. 244 : 51 W. R. 513 ; 8 Com. Cas. 142 168 
 
 Stcdman v. Smith, 26 L. J. Q. B. 314 ; 8 El. ^V B. 1 ; 3 Jnr. (N.s.) 
 
 1248 ... 263 
 
 Stevens v. Jeacockc, 11 Q. B. 741 ; 17 L. J. Q. B. 163; 12 Jur. 477 : 34 
 
 /■. Midland Rail. Co., 10 Ex. 356 ; 2 C. L. R. 1300 ; 
 
 23 L. J. Ex. 328 : 18 Jur. 9.32 145 
 
 V. Woodward, 6 Q. B. D. 318 ; 45 J. P. 603 ; 50 L. J. Q. B. 
 
 231 ; 44 L. T. 153 ; 29 W. R. 506 59 
 
 Stiles r. Cardiff Steam Navigation Co., 33 L. J. Q. B. 310 ; 10 Jur. 
 
 (N.S.) 1199 ; 10 L. T. 844 ; 12 W. R. 1080 180 
 
 Stockdale r. Hansard. 9 A. & E. 1 ; 2 P. & 1). 1 ; 8 L. J. Q. B. 294 ; 
 
 3 Jur. 905 : 4S R. R. 326 132 
 
 Stone, £\rj>arfc, 37 W. R. 767 ; 61 L. T. 82 ; 6 Morrell. 158 ... 112 
 r. Hvde, 9 Q. B. D. 76 ; 46 J. P. 7-s8 ; 51 L. J. Q. B. 452 ; 
 
 46 L. t. 421 ; 30 W. R. 816 74 
 
 Storey v. Ashton, L. R. 4 Q. B. 476 ; 10 B. & S. 337 ; 38 L. J. Q. B. 
 
 223 ; 17 W. R. 727 58 
 
 Straight v. Burn, L. R. 5 Ch. 163 ; 39 L. J. Ch. 289 ; 22 L. T. 831 ; 
 
 18W. R. 243 224
 
 Table of Cases Cited. xlv 
 
 PAGE 
 
 Street r. Gugvvell, Sehvyu's N. P., 13th cJ. lOyO ... 204 
 
 V. Licensed Victuallers' Society. 22 W. L'. ;joH... ... ... 127 
 
 r. Union Bank, etc., 33 W. K. i)01 ; .")5 L. J. Ch. SI ; 30 C'li. 1). 
 
 156 ; 58 L. T. 2t)2 12 
 
 Stroyan r. Knowle.s, () H. & N. 454 21(5,218 
 
 Stuart r. Bell, [ISDl] 2 Q. B. 341 ; GO L. J. Q. B. 577 : (54 L. T.633 ; 
 
 30 W. K. 612 131.13.5 
 
 Sturges V. Bridgman, 11 Ch. D. 852 ; 48 L. J. Ch. 785 ; 41 L. T. 21!t; 
 
 28 W. K. 200 206 
 
 Submarine Telegraph Ct). r. Dickson, 15 C. B. (N.s.) 75',» ; 
 
 33 L. J. C. r. 139 42 
 
 Sutclitfe r. Booth, 32 L. .1. Q. B. 136 ; '.I Juc. (x.s.) 1037 225 
 
 Sutton r. bloody, 1 Ld. Bayin. 250 ... ... ... ... ... 261' 
 
 Swift r. Jewsbury. L. K. 1» Q. B. 301 ; 43 L. J. Q. H. 56 : 30 L. T. 
 
 31 ; 22 W. 11.319 77.161 
 
 r. Winterlwtham, L. R. 8 Q. B. 244 : 42 L. J. C^. B. Ill ; 
 
 28 L. T. 339 ; 21 AY. R. 562 162 
 
 Swire r. Leach, 18 C. B. (N.s.) 47!) 276 
 
 Sykes r. North Eastern Rail. Co., 44 L. J. C. P. 191 : 32 L. T. 199 ; 
 
 23 W. R. 473 194 
 
 T. 
 
 Taff Vale Rail. Co. v. Amalgamated Society of Railway Servants. 
 [1901] A. C. 426 ; 65 J. L\ 596 ; 70 L.J. K. B. 905 ; 85 L. T. 
 
 147 ; 50 \V. R. 44 47 
 
 Tancred r. Allgood, 28 L. J. Ex. 362 ; 4 H. .V: \. 438 274 
 
 Tapling r. Jones, 11 H. L. Cas. 290 ; 20 C. B. (N.s.) 166; 
 34 L. J. C. r. 342 ; 11 Jur. (n.s.) 309 ; 12 L. T. 555 ; 13 W. R. 
 
 617 ... 224 
 
 Tarleton r. M'Gawley, 1 Reake. N. 1\ C. 270 ; 8 K. R. 689 172 
 
 Tarrant r. Webb, 18 C. B. 797 ; 25 L. J. C. P. 261 ; 4 W. R. 640 ... 64 
 Tarry r. Ashton, 1 Q. B. D. 314 ; 45 L. J. Q. B. 260 ; 34 L. T. 97 ; 
 
 24 W. R. 581 .-J.-,. liiK 
 
 Taylor r. Hawkins, 16 Q. B. 308 ; 20 L. J. C^. B. 313 ; 15 Jur. 746 : 135 
 
 c. Manchester, etc. Rail. Co., [1895] 1 Q. B. 134 : 59 J. P. 100 ; 
 
 64 L. J. il B. 6 ; 14 R. 34 ; 71 L. T. 596 ; 43 \V. R. 120 ... 37 
 
 c. Whitehead. 2 Doug. 745 260 
 
 Temperton v. Russell. [1893] 1 C^. B. 715; 57 J.P.676: 62L.J.Q.B. 
 
 412 ; 4 R. 376 ; 69 L. T. 78 ; 41 W. R. 565 ... 170. 171, 1 74 
 
 Terry r. Hutchinson, L. R. 3 Q. B. 599 ; 9 B. & S. 487 ; 37 L. J. Q. B. 
 
 257 ; 18 L. T. 521 ; 16 \V. R. 932 155,156 
 
 Tharpe r. Stallwood, 5 M. &; G. 760 ; 12 L. J. C. P. 241 ; 6 Sco. N. R. 
 
 715 ; 7 Jur. 492 ; 1 D. & L. 24 ; 73 R. R. 974 275 
 
 Thomas c. Powell, 7 C. & P. 807 : 48 R. R. S52 97 
 
 V. Quartermaine, 18 Q. B. D. 685 ; 51 J. P. 516 ; 5(i L. J.Q, B. 
 
 340; 57 L, T. 537 ; 35 W. ]{. 555 72 
 
 Thompson r. Barnard, 1 Camp. 148 ... ... ... 123 
 
 f. Brighton Corporation. [1894] 1 Q. B. 332; 58 J. P. 
 
 297 ; 63 L. J. Q. B. 181 ; 9 R. Ill ; 70 L. T. 206 ; 42 W. R. 
 
 161 199.200 
 
 Thorley's Cattle Food Co. v. :Massam, 14 Ch. D. 763 ; 42 L. T. 851 ; 
 
 28 W. R. 966 104 
 
 Thorogood r. Bryan, 8 C. B. 115 ; 18 L. J. C. P. 336 IS)} 
 
 Thorpe f. Brumtitt,L. R. 8 Ch. 650 229 
 
 Tichbome r. Mostyn, L. R. 7 Eq. 55 n 25) 
 
 Tilbury r. Silva, 45 Ch. D. 98 ; 63 L. T. 141 236 
 
 ■^ Tilk'tt r. Ward, 10 Q. B. D. 17 ; 47 J. P. 43S : 52 L. J. Q. B. (U ; 
 
 17 L. T. 546 ; 31 W. R. 197 25i^
 
 xivi Table of Cases Cited. 
 
 PAGE 
 Tilling r. Dick, Kerr & Co., [1905] 1 K. B. 562 ; 74 L. J. K. B. 359 ; 
 
 5:? W. E. 380 ; 21 T. L. R. 281 85 
 
 Timothy r. Simi.son. 1 Cr. M. & R. 757 ; 5 Tyr. 244 ; 6 Car. & P. 
 
 499 : 4 L. J. M. C. 73 ; 40 R. R. 722 252, 254 
 
 Tindall r. Bell. 11 M. & W. 228 : 12 L. J. Ex. IfiO ; C3 R. R. 584... 93 
 
 Tipping r. St. Helens Smelting Co., L. R. 1 Ch. 66 101, 200 
 
 Todd i: Flight, 9 C. B. (n.s.)"377 ; 30 L. J. C. P. 21 ; 7 Jiir. (x.s.) 
 
 291 ; 3L. T. 325: 9 W. R. 145 203,210.211 
 
 Toogood r. Spyring, 1 C. M. & R. 181 : 4 Tyr. 582 ; 3 L, J. Ex. 347 ; 
 
 40 R. R. 523 131 
 
 Trinidad Asphalt Co. r. Ambard. [1899] 2 Ch. 260 ; A. C. 594 ; 
 
 68 L. J. P.:C. 114 ; 81 L. T. 132 : 48 W. R. 116 215 
 
 Tripp c. Frank. 4 T. R. 666 ; 2 R. R. 495 237 
 
 Trotter r. Harris, 2 Y. & J. 285 ; 31 R. R. 593 236 
 
 Trustees, etc. Co. v. Short, 13 App. Cas. 793 ; 53 J. P. 132 ; 59 L. T. 
 
 677 ; 58 L. J. P. C. 4 ; 37 W. R. 433 82 
 
 Tubervil r. Stamp. 1 Salk. 213 177 
 
 Tuberville v. Savage, 1 Mod. 3 243 
 
 Tuff V. Warman. 27 L. J. C. P. 322 ; 5 C. B. (x.s.) 573 ; 5 Jur. 
 
 (x.s.) 222 ; 6 W. R. 693 ... 185 
 
 Tullidge r. Wade, 3 Wils. 18 88,96,157,257 
 
 Tunney v. Midland Rail. Co., L. R. 1 C. P. 291 ; 12 Jur. (x.s.) 691... 66 
 Turner c. Doe d. Bennett. 9 M. & W. 645 ; 11 L. J. Ex. 453 ; 60 R. R. 
 
 850 266 
 
 c. Stallibrass, [1898] 1 Q B. 56 ; 67 L. J. Q. B. 52 ; 77 L. T. 
 
 482; 46 W. R. 81 37 
 
 a. 
 
 United Merthyr Collieries Co., Ee, L. R, 15 Eq. 46 ; 21 W. R. 117... 90 
 
 V. 
 
 Vaughan r. Menlove, 3 Bing. N. C. 468 ; 4 Scott, 244 : 3 Hodges. 
 
 51 : 6 L. J. C. P. 92 ; 1 Jur. 215 : 43 R. R. 711 ... 177, 179 
 
 Venables v. Smith, 2 Q. B. D. 279 ; 46 L. J. Q. B. 470 ; 36 L. T. 
 
 509 ; 25 W, R. 584 58 
 
 Vere v. Earl Cawdor, 11 East, 569 ; 11 R. R. 268 273 
 
 Verry "i-. Watkins, 7 C. & P. 308 157 
 
 Vicars r. Wilcox. 2 Sm. L. C. 534 : 8 East, 1 ; 9 R. R. 361 ... 122 
 
 Vine, Rr jMirfc, 8 Ch. D. 364 ; 47 L. J. Bk. 116; 38 L. T. 730 ; 
 
 26W. R.582 112 
 
 -Vizetelly r. Mudie's Select Library, Limited, [1900] 2 Q. B. 170 ; 
 
 69 L. J. Q. B. 645 127 
 
 Von Joel r. Hornsey, [1895] 2 Ch. 774 ; 65 L. J, Ch. 102 : 73 L. T. 
 
 372 108, 109 
 
 w. 
 
 AVaite r. North Eastern Rail. Co., El. B. .V: E. 719 : 28 L. J. Q. B, 
 
 25.S ; 7 \V. R. 311 187 
 
 Wakelin r. London and South Western Rail. Co., 12 App. Cas. 41 ; 
 
 51 J. P. 404 ; 56 L. J. Q. B. 229 ; 55 L. T. 7U9 ; 35 \V. R. 141 : 189 
 
 Wakley V. Cooke, 4 Ex. 518 ; 19 L. J. Ex. 91 117 
 
 Walker r. Brewster, L. R. 5 Eq. 25 ; 37 L. J. Ch. 33 ; 17 L. T. 13.j ; 
 
 16 W. R. 59 201 
 
 r. Brogden, 19 C. B. (X.S.) 65 ; 11 Jur. (x.s.) G71 : 12 L. T. 
 
 495; 13 W. R. 809 116 
 
 c. Great Northern Rail. Co., 28 L. R. Ir. 69 44
 
 Table of Cases Cited. xlvii 
 
 PAGE 
 Waller r. Loch, 7 Q. B. D. 619 ; 40 J, P. 484 ; 51 L. J. Q. B. 274 ; 
 
 45 L. T. 242; 80 W.R. 18 13(; 
 
 Walley v. Holt, 35 L. T. G3I 45 
 
 AVallis r. Hanils, [1898] 2 Ch. 75 ; 62 L. J. Ch. 586 ; 8 K. 851 : 
 
 68 L. T. 428 ; 41 \V. R. 471 261 
 
 Walsh V. Lonsdale, 21 Ch. D. 9 ; 52 L. J, Ch. 2 ; 46 L. T. 858 ; 
 
 31AV. K. 109 267 
 
 r. Whiteley, 21 Q. B. D. 871 ; 53 J. P. 88 ; 57 L. J. Q. B. 
 
 586 ; 36 W. H. 876 78 
 
 Walter r. Selfe, 4:De G. & Sni. 822 : 20 L. J. Ch. 438 ; 15 Jur. 416 : 2U0 
 
 Walton r. Waterhouse, 1 Wins. Saund. 418 26& 
 
 Warburton r. Great Western Kail. Co., L. R. 2 Ex. 30 ; 4 H. ^t C. 
 
 695 ; 36 L. J. Ex. 9 ; 15 L. T. 861 ; 15 W, R. 108 67 
 
 Ward r. Eyre, 2 Bulstr. 828 272 
 
 r. Hobbs. 4 App. Cas. 18 ; 48 L. J. Q. B. 281 ; 40 L. T. 78 ; 
 
 27W. R. 114 166 
 
 v. Weeks, 4 Moo, c*c P. 8U8 ; 7 Bing. 211 ; 9 L. J. (o.s.) 
 
 C. P. 6 138 
 
 Warwick r. Foulkes, 12 M. & W. 507 ; 1 D, & L. 688 : 18 L. J. E.\. 
 
 109 ; 8 Jnr. 85 96 
 
 Wason r. Walter. L. R. 4 Q. B. 73 ; 8 B. &. S. 671 ; 38 L. J. Q. B. 
 
 84; 19 L. T. 409; 17 W. R. 169 188 
 
 Watkin r. Hall. L. R. 3 Q. B. 896 ; 9 B. & S. 279 ; 37 L. J. Q. B. 
 
 125 ; 18 L. T. 501 ; 16 W. R. 857 115.187 
 
 Watson r. HoUidav, 20 Ch. 1). 780 ; 51 L. J. Ch. 906 ; 46 L. T. 
 
 878 ; 80 W. R. 747 ; affirmed. 52 L. J. Ch. .543 : 48 L. T. 
 
 545 ; 81 W. R. 586 112 
 
 Webb V. Beavan, 11 Q. R. D. 009 ; 47 J. P. 488 ; 52 L. J. Q. B. 
 
 544 ; 49 L. T. 201 121 
 
 r. Bird, 13 C. B. (n.s.) 841 : 31 L. J. C. P. 335 ; 8 Jur. (x.s.) 
 
 621 22-^ 
 
 Weldon r. Xeal, 32 W. R. 828 ; 51 L. T. 289 S4 
 
 Wellock r. Constantino, 2 H. & C. 146; 32 L. J. Ex. 285 ; 9 Jur. 
 
 (N.s.) 232 ; 7 L. T. 751 30 
 
 Wells V. Abrahams, L. R. 7 Q. B. 554 ; 41 L. J. Q. B. 806 ; 26 L. T. 
 
 320 ; 20 W. R. 659 28 
 
 V. Head, 4 C. & P. 508 ; 34 R. R. 819 273 
 
 Wenman i: Ash, 13 C. B. 836 ; 1 C. L. R. 592 ; 22 L. J. C. P. 
 
 190; 17 Jur. 579 ; 1 W. R. 452 128 
 
 AVennhak r. Morgan, 20 Q. B. D. 635 ; 52 J. P. 470 ; 57 L. J. Q. B. 
 
 241 ; 59 L. T. 28 ; 36 W. R. 697 127 
 
 Weston r. Beeman, 27 L. J. Ex. 57 ... 141 
 
 Whalley r. Lancashire and Yorkshire Rail. Co.. 13 Q. B. U. 131 ; 
 
 48 J, P. 500; .53 L. J. Q. B. 285 ; 50L.T.272: 82 W. R. 711... 203 
 Wheaton r. Maple & Co., [1893] 3 Ch. 48 ; 62 L. J. Ch. 963 ; 09 L. T. 
 
 208 ; 41 W. R. 677 222 
 
 Wheeldon r. Burrows, 12 Ch. D, 31 ; 48 L. J. Ch. 858 ; 41 L. T. 
 
 827 ; 28 W. R. 196 221 
 
 Wheeler r. Whiting, 9 C. & P. 265 ; 62 R. R. 749 246 
 
 Whitbourne i: Williams, [1901] 2 K. B. 722 ; 70 L. J, K. B. 938 : 
 
 85L. T. 271 155 
 
 White r. Bass, 7 H. & N, 722 ; 31 L. J. Ex, 288 ; 8 Jur. (x.s.) 312 ; 
 
 5 L, T. 843 220 
 
 r. France, 2 C. P. D. 308 ; 46 L. J. C. P. 828 ; 25 W. R. 878 : 1 7, L-<1 
 
 r. Mellin, [1895] A. C. 154 ; 59 J. P. 628 ; 64 L. J. Ch. 308 ; 
 
 11 R. 141 ; 72 L. T. 334; 43 W. R, 853 120,125 
 
 '•. Spettigue, 18 M. & W. 603 ; 1 Car. & K. 673 ; 14 L. J. Ex. 
 
 99 ; 9 Jur. 70 ; 67 R. R. 758 81 
 
 Whitehouse v. Fellowes, 30 L. J. C. P. 305 ; 10 C. B. (n.s.) 765 : 
 
 4 L. T. 177 ; 9 W. R. 557 82
 
 xlviii Table of Cases Cited. 
 
 PAGE 
 Whitwham r. Westminster Brvmbo Coal and Coke Co., [1896] 2 Ch. 
 
 538 ; 65 L. J. Ch. 741 ; 7i L. T. 804 ; 44 W. K. 698 89 
 
 Wild i: Waygood, [1892] 1 Q. B. 78.3 ; 56 J. P. 389 ; 61 L. J. Q. B. 
 
 391 ; 66 L. T. 309 ; 40 W. R. 501 74 
 
 Wilkinson r. Downton, [1897] 2 Q. B. 57 ; 66 L. J. Q. B. 493 : 
 
 76 L. T. 493 : 45 W. K. .525 91.163 
 
 r. Hay garth. 12 Q. B. 837 ; 16 L. J. Q. B. 103 ; 11 Jur. 
 
 104 263 
 
 Williams r. Birmingham Battery, etc. Co., [1899] 2 Q. B. 338 ; 
 
 68 L. J. Q. B. 918 : 81 L. T. 62 : 47 W. R. 680 ...64. 69 
 
 V. Clough, 3 H. & N. 258 : 27 L. J. Ex. 325 GS 
 
 Williamson r. Freer, L. R. 9 C. P. 393 : 43 L. ,1. C. P. 161 : 30 L. T. 
 
 332 ; 22 W. R. 878 127. 137 
 
 Wilson r. Barker, 4 B. & Ad. 614 : 1 N. &M. 409 .50 
 
 r. Queens Club, [1891] 3 Ch. 522 : 60 L. J. Ch. 698 ; 65 L. T. 
 
 42:40W. R. 172 220 
 
 r. Tumman. 6 Man. i: Gr. 242 ; (5 See. X. R. 894 ; 1 I). .^ L. 
 
 573 : 12 L. J. C. P. 306 : 64 R.R. 770 50 
 
 v. Waddell, 2 App. Cas. 95 ; 35 L. T. 639 12, 20. 202 
 
 Wimbledon Conservators r. Dixon. 1 Ch. 1). 362 : 45 L. J. Ch. 353 ; 
 
 33 L. T. 679 ; 24 W. R. 466 228 
 
 Wingate r. Waite, 6 M. & W. 746 : 9 L. J. Ex. 319 ; 4 Jur. 860 ... 249 
 Winlifidd, Tlu\ [1902] P. 42 ; 71 L. J. P. 21 ; 85 L. T. 668 : 
 
 .50W. R.246 276 
 
 Winsmore r. Grecnbank. Willes, 577 ... ... ... ... ... 152 
 
 Winterbottom r. Lord Derby, L. R. 2 Ex. 316 : 36 L. J. Ex. 194 ; 
 
 16 L. T. 771 ; 16 W. 1.'. 15 10.12,198 
 
 r. Wright. 10 M. &: W. 109 ; 11 L. J. Ex. 415 : 62 R. R. 
 
 534 40 
 
 Withers r. Xorth Kent Rail. Co., 27 L. J. Ex. 417 : 1 F. ^t F. 565... 178 
 Wolverhampton Waterworks Co. r. Hawkst'ord. 28 L. J. C. 1'. 198 : 
 
 5 C. B. rx.s.) 703 : 5 Jur. (x.s.) 736 : 7 W. R. 244 33 
 
 Wood r. Durham (Lord). 21 Q. B. D. .501; 57 L. J. Q. B. 547 ; 
 
 .59 L. T. 142 ; 37 W. R. 222 96, 128 
 
 r. Wand, 3 Ex. 748 ; 18 L. J. Ex. 305 ; 13 Jur. 742 226 
 
 Worth c. Gilling. L. R. 2 C. P. I 180 
 
 Wren r. Weild, L. R. 4 Q. B. 730 : 10 B. & S. 51 ; 38 L. J. Q. B. 
 
 327 ; 20 L. T. 1007 120 
 
 Wright '•. Fairfield, 2 B. i: Ad. 727 112 
 
 V. London and North Western Rail. Co.. 1 Q. B. 1). 252 : 
 
 45 L. J. Q. B. 570 : 33 L. T. 830 ... ... 70 
 
 r. Pearson, L. R. 4 Q. B. 582 ; 38 L. J. Q. B. 312 : 20 L. T. 
 
 849; 17 W. R. 1099 ; lOB. & S. 723 181 
 
 f. Williams, 1 M. & W. 77 ; 1 Tyr. & G. 375 ; 1 Gale. 410 : 
 
 5 L. J. Ex. 107 ; 46 R. R. 265 207 
 
 Wyatt r. White. 29 L. J. Ex. 193 ; 5 H. & N. 371 ; 1 L. T. 517 ; 
 
 8 W. R. 307 141 
 
 Wyld r. Pickford. 8 M. & W. 443 ; 10 L. J. Ex. 382 : 58 R. K. 775 : 274 
 
 Yarmouth r. France, 19 Q. B. I). 647 : 57 L. J. Q. B. 7 ; 36 W. R. 
 
 281 69.73 
 
 Young V. Spencer. 10 B. A: C. 145 : 5 M. k. Rv. 47 : s L. J. (o.s.) 
 
 K. B. 106 240
 
 TABLE OF STATUTES. 
 
 PAGE 
 
 4 Edw. 3, c. 7. (Administration of Estates) 110 
 
 20 Edw. 3, c. 5 . (Administration of Estates) ... . = . .. 110 
 
 21 Hen. S, c. 11. (Restitution of Goods Stolen) 272 
 
 21 Jac. 1, c. IG. (Limitation Act, 1623) — 
 
 s. 3 139,157,264,280 
 
 8.7 83 
 
 31 Car. 2, c. 2. (Habeas Corpus) 258 
 
 24 Geo. 2, c. 44. (Constable), ss. 6, 8 2.50 
 
 14 Geo. 3, c. 86. 177 
 
 56 Geo. 3, c. 100. (Habeas Corpus) 258 
 
 5 Geo. 4, c. 83. (Vagrants) 255 
 
 9 Geo. 4, c. 14. (Lord Tenterden's Act), s. 6 77, 161 
 
 c. 32. (Criminal Law), s. 3 ... ... ... ... 117 
 
 2 & 3 Will. 4, c. 71. (Prescription Act) 218, 222, 223, 224 
 
 s. 2 223.229 
 
 ss. 3, 4 219,221,222 
 
 3 & 4 Will. 4, c. 27. (Real Property Limitation Act, 1833)— 
 
 s. 2 ^ 267 
 
 ss. 3, 10, 11 268 
 
 s. 16 83, 267 
 
 ss. 17, 29 267 
 
 s. 34 82 
 
 c. 42. (Administration of Estates Act, 1833), s. 2 ... 110 
 2 & 3 Vict. c. 47. (Metropolitan Police Act, 1839), s. 54 ... 24 
 
 6 & 7 Vict. c. 86. (London Hackney Carriages Act, 1843 ... 57 
 
 c. 96. (Libel Act, 1843), s. 2 139 
 
 8 & 9 Vict. c. 20. (Railways Clauses Consolidation Act, 1845) ... 216 
 
 s. 154 256 
 
 9 & 10 Vict. c. 93. (Lord Campbell's Act) 31,92 
 
 s. 1 Ill, 192 
 
 s. 2 192 
 
 8.4 193 
 
 11 & 12 Vict. c. 44. (Jervis' Act) 250 
 
 14 & 15 Vict. c. 19. (Criminal Law Act, 1851). s. 11 ... 2.55, 256 
 
 15 & 16 Vict. c. 76. (Common Law Procedure Act, 1852) 7 
 
 20 & 21 Vict. c. 85. (Matrimonial Causes Act, 1857), s. 26 49 
 
 24 & 25 Vict. c. 70. (Locomotives Act, 1861) 35 
 
 c. 96. (Larceny Act, 1861)— 
 
 s. 23 264 
 
 s. 100 280 
 
 c. 97. (Malicious Damage Act, 1861) 255 
 
 c. 100. (Criminal Law, 1861). ss. 42—45 256 
 
 27 & 28 Vict. c. 95. (Administration of Estates Act, 1864), s. 1 ... 193 
 
 28 & 29 Vict. c. 60 (Dogs Act, 186.5), s. 1 ISl 
 
 c. 83. (Locomotives Act. 1865) ... ... ... 3."> 
 
 29 & 30 Vict. c. 122. (Comm(ms (Metropolis) Act, 1866) ... 
 32 & 33 Vict. c. 70. (Contagious Diseases (Animals) Act, 1869 
 
 L.T, d 
 
 232 
 ... 34
 
 Table of Statutes. 
 
 32 & 33 Vict c. 107, 
 
 33 & 34 Vict. c. 23. 
 
 c. 78. 
 
 36 & 37 Vict. c. 66. 
 
 37 i.t 38 Vict. c. 57. 
 
 38 & 89 Vict. c. 86. 
 
 39 & 40 Vict. c. 22. 
 
 c. oQ. 
 10 & 41 Vict. c. 16. 
 
 43 & 44 Vict. c. 42. 
 
 44 & 4.5 Vict. c. 60. 
 
 45 & 46 Vict. c. 75 
 
 46 & 47 Vict. c. 52. 
 
 48 & 49 Vict. c. 69. 
 51 & .52 Vict. c. 43. 
 
 c. 64. 
 
 53 & 54 Vict. c. 39. 
 
 c. 64. 
 54 & 55 Vict. c. 51. 
 56 & 57 Vict. c. 57. 
 
 0.61. 
 
 c. 71. 
 
 60 & 61 Vict. c. 37. 
 63 cSc 64 Vict. c. 22. 
 3 Edw. 7. c. 31. 
 c. 36. 
 
 PAGE 
 
 (Commons Act. 1869) 232 
 
 (Forfeiture Act, 1870), ss. 8, 30 44 
 
 (Tramways Act. 1870), s. 52 61 
 
 (Judicature Act. 1873) 104,265 
 
 s. 25 (8) 104 
 
 (Real Property Limitation Act, 1874) — 
 
 s. 1 267 
 
 s. 2 268 
 
 ss. 3, 4 267 
 
 s. 5 84 
 
 s. 9 82 
 
 (Conspiracy Act, 1875). s. 7 ... ... ... 172 
 
 (Trade Unions Act, 1876) 47 
 
 (Commons Act. 1876) 232 
 
 (Removal of Wrecks Act, 1877) ... ... 33 
 
 (Employers' Liability Act, 1880) ...63, 68, 71, 72 
 
 rLibel Act. 188n, s.'g 139 
 
 (Married Women's Property Act, 1882) ... 48. 84 
 
 s. 1 " 44.48 
 
 s. 12 44 
 
 ss. 13—15 49 
 
 (Bankruptcy Act, 1883) — 
 
 ss. 30 (2), 37 112 
 
 (Criminal Law Amendment Act, 1885), s. 10... 141 
 (County Courts Act, 1888)— 
 
 s. 134 278 
 
 s. 135 278.279 
 
 ss. 136, 137 278 
 
 s. 152 251 
 
 (Law of Libel Amendment Act, 1888) ... 139 
 
 s. 3 133.139 
 
 s. 4 134,139 
 
 s. 5 139 
 
 (Partnership Act, 1890) — 
 
 .s. 10 
 
 s. 11 
 
 s. 12 
 
 (Directors' Liability Act, 1890) 
 
 (Slander of Women Act, 1891) 
 
 (Law of Commons Amendment Act, 1893) : 
 (Public Authorities Protection Act, 1893) : 
 (Sale of Goods Act. 1893)— 
 
 ss. 21,22 
 
 s. 23 
 
 s. 24 
 
 (2) 
 
 s. 25 (2) 
 
 (Workmen s Compensation Act, 1897) 
 (Workmen's Compensation Act, 1900) 
 (Board of Agriculture and Fisheries Act. 1903) 
 (Motor Car Act, 1903) 
 
 5, 7() 
 
 159,162,163 
 121, 123 
 230, 232 
 
 84, 2.58 
 
 ... 270 
 
 ... 271 
 
 270. 272 
 
 ... '280 
 
 ... 27U 
 
 63. Ill 
 
 63,111 
 
 230 
 
 256
 
 THE LAW OF TOKTS.
 
 INTRODUCTION. 
 
 " The maxims cf law," says Justinian, " are these : To live 
 honestly, to hm-t no man, and to give every one his due." 
 The practical object of law must necessarily be to enforce 
 the observance of these maxims, which is done by punishing 
 the dishonest, causing wrongdoers to make reparation, and 
 insuring to every member of the community the full enjoy- 
 ment of his rights and possessions. 
 
 Infractions of law are, for the purposes of justice, divided 
 into two great classes : viz., public and private injuries. 
 The former consist of offences against the community 
 at large, or offences — commonly called crimes — which, 
 although primarily affecting individuals, are subversive of 
 law and order ; and as no redress can be given to the 
 community, except by the prevention of such acts for 
 the future, they are either stopped by injunction at the 
 suit of the Attorney-General, or (in the case of crimes) 
 visited with some deterrent and exemplary punishment. 
 
 Private or civil injuries, on the other hand, are merely 
 violations or deprivations of the legal rights of individuals. 
 These admit of redress. The law, therefore, affords a 
 remedy by forcing the wrongdoer to make reparation ; 
 and in some cases also restrains him by injunction from 
 repeating the wrong. 
 
 But as injuries are divided into criminal and civil, so 
 the latter are sub-divided into two classes, of injuries ex 
 contractu and injuries ex delicto — the former being such 
 as arise out of the violation of duties undertaken by con- 
 tract, and the latter (commonly called torts) such as spring 
 from the violation of duties imposed by law, to the per- 
 formance or observance of which every member of the 
 comnmnity is entitled as against the world at large.
 
 4 IXTEODUCTION. 
 
 Although, however, these divisions are broadly correct, 
 the border line between them is by no means well defined. 
 Indeed, from the very nature of things, each division must 
 to some extent overlap the others. Thus the same set of 
 circumstances may constitute a crime, a tort, and a breach 
 of contract. At the same time, as those circumstances 
 may be regarded from each of the three points of view, no 
 confusion ensues from the fact that they cannot be exclu- 
 sively placed in any one of the three classes. 
 
 In this work an attempt has been made to state the 
 principles which the law applies to those facts which 
 constitute torts.
 
 PART I. 
 
 RULES RELATING TO TORTS IN GENERAL.
 
 (, 7 ) 
 
 ■V- ^ 
 
 CHAPTER I. 
 
 OF THE NATURE OF A TORT. 
 
 Aet. 1. — Definifioit of a Tort. 
 
 A ToET is an act or omission which, independent 
 of contract, is unauthorised by law, and results 
 either — 
 
 (a) in the infringement of some absolute right 
 
 to which another is entitled ; or 
 
 (b) in the infringement of some qualified right 
 
 of another causing damage ; or 
 
 (c) in the infringement of some public right 
 
 resulting in some substantial and par- 
 ticular damage to some person beyond 
 that which is suffered by the public 
 generally. 
 
 No oue has yet succeeded in formulating a perfectly 
 satisfactory definition of a Tort ; indeed, it may be doubted 
 whether a scientific definition, which would at the same 
 time convey any notion to the mind of the student, is 
 possible. 
 
 A tort is descril)ed in the Common Law Procedure Act, Conmient 
 1852, as " a wrong independent of contract." If we use [jeVnitions 
 the woi'd "wrong," as equivalent to violation of a right of Tori, 
 recognised and enforced by law by means of an action for 
 damages, the definition is sufficiently accurate, but scarcely 
 very lucid ; for it gives no clue as to what constitutes a 
 wrong or violation of a right recognised and enforced by 
 law.
 
 Of the Nature of a Tort. 
 
 Art. 1. 
 
 Examination 
 of aiithor's 
 definition. 
 
 Effect of the 
 
 absence of 
 
 one of the 
 
 several 
 
 factors 
 
 constituting 
 
 tort. 
 
 A recently published text book (a), by a distinguished 
 American Lawyer, defines a tort as a breach of duty fixed 
 by law, and redressible by a suit for damages ; but this 
 definition does not seem to convey much information to the 
 reader, and confessedly requires an elaborate explanatory 
 dissertation. 
 
 Perhaps Sir Frederick Pollock in his work on torts (b), 
 gives the most comiplete definition ; but I cannot help think- 
 ing that, excellent as it is, the student is more likely to 
 grasp the legal meaning of the word "tort " from the brief 
 definition which I have attempted. 
 
 It will be perceived from this, that three distinct factors 
 are necessary to constitute a tort according to our law. 
 First, there must be some act or omission on the part of the 
 person committing the tort (the defendant), unauthorised by 
 law, and not being a breach of some duty undertaken 
 by contract. Secondly, this wrongful act or omission must, 
 in some way, inflict an injury, special, private, and pecuhar 
 to the plaintiff, as distinguished from an injury to the 
 pubhc at large ;" and this may be either by the violation of 
 some right in rem, that is to say, some right to which the 
 plaintiff is entitled as against the world at large, or by the 
 infliction on him of some loss of property, health, or 
 material comfort. Thirdly, the wrongful act injurious 
 to the plaintiff' must fall within some class of cases 
 for which the recognised legal remedy is an action for 
 damages. 
 
 It is desirable that the effect of the absence of any one 
 of these three factors should be examined a little more 
 closely. 
 
 One often sees it stated in legal works that a damnum 
 absque injuria is not actionable, but that an injuria sine 
 damno is. This jingle has probably puzzled many 
 generations of students, but it comes to very little when 
 dissected. 
 
 ('() Bigelow's Elements of tlie Law of Torts. 
 (h) See Pollock (.n Torts, Gtli cd., p. 19.
 
 Definition of a Tort. 9 
 
 By damnum is meant damage in the substantial sense of Art. 1. 
 money, loss of comfort, service, health, or the like. By jy ~ 
 injuria is meant an unauthorised interference, however ahsque 
 trivial, with some right conferred by law on the plaintiff '"-'"^*"- 
 (ex. (jr. the right of excluding others from his house or 
 garden). All that the maxims come to, therefore, is 
 this : that no action lies for mere damage {damnuvi), how- 
 ever substantial, caused without breach of law^ but that an 
 action does lie for interference with another's legal private 
 rights, even where unaccompanied with damage. Injuria, 
 therefore, in the maxim, is not equivalent to breach of law, 
 but to that limited kind of breach of law which consists in 
 the violation of another's absolute private rights. 
 
 Eead by the light of these observations, both the maxims 
 in question are correct. For the interruption of an absolute 
 right, however temporary and however slight, is considered 
 by the law to be damaging, and a proper subject for 
 reparation ; and substantial damages have more than once 
 (in cases of false imprisonment) been awarded, where the 
 plaintiff's surroundings were very considerably improved 
 during his unlawful detention. But when no absolute private 
 right [e.v. gr. liberty) has been invaded by a wrongful act, 
 then no action \\\\\ lie unless the plaintiff has sustained 
 actual loss or damage. 
 
 The reason for all this is very clear. In the case of the Infringement 
 invasion of an absolute private right, there is a wrong done "i„j^^g° 
 to the plaintiff by the mere infringement of that right, and 
 for every wrong there is a remedy by action " uhi jus ibi 
 rcrnedinm." 
 
 A man has an absolute right to his property, to the 
 immunity of his person, and to his liberty. Thus, in actions 
 of trespass whether to goods, lands, or the person (including 
 assault and false imprisonment), damage is not a part of 
 the cause of action, and a plaintiff is entitled to nominal 
 damages for the mere infringement of these rights. 
 
 But there are some private rights which are only Infringement 
 qualified rights, that is, rights to be saved from pecuniary p^.Jv"te 
 
 ritrhts.
 
 10 Of the Nature of a Tort. 
 
 Art. 1. loss, and no action will lie for an infringement of these 
 rights without proof of damage. Thus, a person has not 
 an absolute right not to be deceived, and in an action for 
 fraud it is necessary for the plaintitf to show that the deceit 
 complained of resulted in damage. So, too, in actions for 
 nuisance (with some exceptions), malicious prosecution and 
 negligence, damage is an essential part of the cause of 
 action ; as in all these cases the right infringed is only a 
 qualified right — a right to be preserved from damage by 
 certain acts or omissions of other persons. 
 
 Infringement Lastly, a tort may consist in the infringement of a public 
 of piTbho right, i.e., a right which all men enjoy in common, coupled 
 ° ' with particular damage. Take, for example, rights of highway. 
 
 If a highway is obstructed, an injury is done to the public, 
 and for that wrong the remedy is by indictment or by pro- 
 ceedings by the Attorney-General on behalf of the public. 
 If every member of the public could bring an action, the 
 number of possible actions for one breach of duty would be 
 without limit (c). But if, in addition to the injury to the 
 public, a special, peculiar, and substantial damage is 
 occasioned to an individual beyond the injury suffered by 
 the public generally, then it is only just that he should 
 have some private redress (cl). 
 
 I It will, therefore, be seen, that there must be an unautho- 
 
 rised act or omission either causing (a) an infringement of 
 some absolute private right, or (b) an infringement of a quali- 
 fied private right resulting in damage, or (c) an infringement 
 of a public right resulting in substantial and particular damage 
 to some person beyond that suffered by the public. 
 
 Injury must Bi-it in addition to this, the injury must fall within some 
 
 be remediable class recognised by law, and for which an action for damaoes 
 b\- damages. .,, . ■, -r^ ■ , i-"" 
 
 IS the appropriate remedy. ±or mstance, murder is an 
 
 act unauthorised by law, and it may inflict most cruel and 
 
 particular damage on the family of the murdered man ; 
 
 (c) See Wiuterhotham v. Lord Derhy, L. R. 2 Ex. 810 ; W. If. Chapliii 
 cL- Co V. Westminster Corporation, [1901] 2 Ch. 329. 
 
 (d) See Lyon. v. Fishmongers' Co., 1 App. Cas. G62 ; and Fritz v. 
 Nohson, 14 Ch. 1). 542.
 
 Definition of a Tokt. 11 
 
 ln;t, nevertheless, that gives them no civil remedy against Art. 1. 
 the murderer. So, if one libels a dead man, his children 
 have no right to redress, although it may cause them to be 
 cut off from all decent society. So a breach of trust, 
 although certainly an act unauthorised by law, and usually 
 followed by private and particular loss to the beneficiaries, 
 does not fall within the class of civil injuries remediable by 
 an action for damages, and therefore cannot properly be 
 said to constitute a tort. It would appear that since the 
 abolition of the action of crim. con. the same remarks apply 
 to adultery, and consequently that subject is omitted from 
 this work. 
 
 Having now explained the nature of the elements which Illustrations, 
 are essential to the constitution of a tort, the attention of 
 the student is invited to a few illustrations : 
 
 (1) If one trespass upon another's land without lawful 
 excuse, that is an interference with an absolute legal right 
 (viz., the right of exclusive possession of a man's own land). 
 Moreover, being without excuse, it is an act not authorised 
 by law, and consequently the two elements of an unautho- 
 rised act and the consequent infringement of a legal right 
 are present, and an action for tort may be maintained. 
 But if the trespass were connnitted in self-defence, in order 
 to escape some pressing danger, then no action would lie ; 
 for the law authorises the commission of a trespass for that 
 purpose. Consequently, although in such a case there is an 
 invasion of the right of exclusive possession-, the other 
 element of a tort — viz., an act not authorised by law — is 
 absent, and therefore no tort is counnitted. 
 
 (2) Again, if I own a shop which greatly depends for its Damnum 
 custom upon its attractive appearance, and a company erect ;,ijf(,-i,t. 
 
 a gasometer hiding it from the public, I cannot sue them ; 
 because, although my trade may be ruined by the obstruc- 
 tion, yet the gas company are only doing an act authorised 
 by law, namely, building upon their own land (e). Although, 
 therefore, the element of substantial damage is present, the 
 
 (e) Butt V. Imperial Gas Co., L. R. 2 Cli. App. loS.
 
 12 Of the Nature of a Toet. 
 
 Art, 1. element of an unauthorised act is not ; it is a case of 
 ' damnum absque injurid, and no tort is committed (/). 
 
 (3) So where a landowner by working his mines caused a 
 subsidence of his surface, in consequence of which the rain- 
 fall was collected and passed hj gravitation and percolation 
 into an adjacent lower coal mine, it was held that the owner 
 of the latter could sustain no action. For the right to work 
 mines is a right of property, which, when duly exercised, 
 begets no responsibility. The damage suffered by the 
 adjacent owner was therefore a damnum absq^ie injurid (g). 
 
 Injuria .sine (4) A legally qualified voter duly tenders his vote to the 
 returning officer, who wrongly refuses to register it. The 
 candidate for whom the vote was tendered gains the seat, 
 and no loss whatever, either in money, comfort, or health, 
 is suffered by the rejected voter ; yet his absolute right to 
 vote at the election is infringed, and that by an unauthorised 
 act of the returning officer, and hence we have the two 
 elements sufficient to support an action of tort (/;). This is 
 an instance of injuria sine damno. 
 
 Infringement (5) A man erects an obstruction in a public way. The 
 riwht. plaintiff is delayed on several occasions in passing along it, 
 
 being obliged, in common with everyone else w^ho attempts 
 to use the road, either to pursue his journey by a less direct 
 route, or else to remove the obstruction. He, nevertheless, 
 cannot maintain an action ; because, although the element 
 of an unauthorised or unlawful act on the part of the 
 defendant is present, yet there is no invasion of an absolute 
 private right, and no substantial damage peculiar to the 
 plaintiff beyond that suffered by the rest of the public (/). 
 
 (6) The defendant leaves an unfenced hole upon premises 
 adjoining a highway. The plaintiff, in passing along the 
 highway at night, falls into the hole, and is injured. Here 
 both elements of a tort are present ; for the law does not 
 
 (/ ) See also »S/ree< v. Uuiou Bank, cfc, 33 W. K. Udl. 
 
 {(j) Wilcon V. WaddeU, 2 App. Cas. 95. 
 
 (h) Ashbyx. White, 1 Sni. L. C. 2ol. 
 
 (i) Winttrhotham v. Lord IhrJ')/, L. R. 1 Ex. 31(j.
 
 Definition of a Tort. 13 
 
 authoi'ise the leaving of au unfenced hole adjacent to a Art. 1. 
 highway, and likely to be a danger to persons lawfully using 
 it, and the plaintiff clearly suffers a special and substantial 
 damage beyond that suffered by the rest of the public, and 
 accordingly he can recover damages {k). 
 
 (7) The plaintiff kept a coffee-house in a narrow street. 
 The defendants were auctioneers, carrying on au extensive 
 business in the same neighbourhood, having an outlet at 
 the rear of their premises next adjoining the plaintiff's 
 house, where they were constantly loading and unloading 
 goods into and from their vans. The vans intercepted the 
 light from the plaintiff's coffee-house to such an extent that 
 he was obliged to burn gas nearly all day, and access to his 
 shop was obstructed, and the smell from the horses' manure 
 made the house uncomfortable. Here there was an un- 
 authorised state of facts constituting a public nuisance, but 
 there was also a direct and substantial private and particular 
 damage to the plaintiff, beyond that suffered by the rest of 
 the public, so as to entitle him to maintain an action (/). 
 
 (8) A person is guilty of negligence, or violence, whereby Infringement 
 the plaintiff's servant is injured, and incapacitated from riJ^i^ ^ 
 performing his usual duties. Here the loss of service is a 
 substantial deprivation of comfort sufficient to give the 
 
 plaintiff a right of action (vi). There is, however, a curious 
 exception to this, viz., that where the servant is killed on 
 tJie spot, no action lies by the master (»). 
 
 Art. 2. — Classification of unautJiorised Acts or 
 Omissions constituting one element of a Tort. 
 
 Acts unauthorised by law, and which, when 
 coupled with the invasion of a right or the 
 
 (/■) Huilhy V. Taylor, L. R. 1 C. P. 53. 
 /■(/) Benjamin v. iStorr, L. R. 9 C. P. 400. 
 •{m) Berrimjer v. Ch-eat Eastern Kail. Co., 4 C. P. D. 163. 
 .(;') 0'<l)orn V. aUlttt, L. R. 8 Ex. 88.
 
 14 Of the Natuee oe a Toet. 
 
 Art. 2. inHiction of substantial damage, constitute a 
 tort, may be conveniently divided into the 
 following classes, viz. : 
 
 (a) Acts without legal justification directly 
 
 infringing another's private rights ; 
 
 (b) Negligent acts or omissions ; 
 
 (c) Acts or omissions in relation to the user 
 
 of property or otherwise not directly 
 infringing another's private rights and 
 independent of negligence. 
 
 Examination 111 the words of Pratt, C.-J., " torts are infinitely various, 
 of rule. f^^ there is not anything in nature that may not be con- 
 
 verted into an instrument of mischief" (o). It is, therefore, 
 hopeless to attempt any definition of what constitutes an 
 unauthorised act or omission, upon which an action for tort 
 may be founded ; but, broadly speaking, the above classifi- 
 cation may, perhaps, give the student some standard by 
 which to measure particular cases. 
 
 Class (a) requires some explanation, because it is the 
 one class where, at first sight, the unauthorised act and the 
 consequent injury appear to be inseparable. And no doubt 
 the same act does often constitute both elements of a tort, 
 as, for instance, where one beats another, the act of beating 
 is lirimd facie both an unauthorised act and an invasion of 
 a right. It is not, however, necessarily so, for suppose the 
 beating is administered by the order of a court having 
 jurisdiction to inflict " the cat," there the beating is not an 
 unauthorised act, although it is an interference with the 
 general right of the subject to immunity from battery. 
 Consequently, although the same act may, and often does, 
 of itself combine both elements of a tort, it is divisible, for 
 the purposes of legal analysis, into the two elements which 
 must co-exist if the act is actionable. In all such cases we 
 must ask ourselves the questions : (1) Is the act one which is 
 unauthorised ? and (2) Is it an act which if unauthorised 
 violates a legal right 1 This class embraces all those 
 
 (o) ISee Chapman v. Pi(:ktr'<(jUl, 2 Wils. 146.
 
 Classification of Unauthorised Acts. 15 
 
 unauthorised violations of the rights of person and property Art. 2. 
 conferred by hiw on every member of the community, 
 including assault and battery, false imprisonment, trespass 
 on and dispossession of lands, trespass to and conver- 
 sion of personal property, and deceit. It also embraces 
 invasions of a man's right to his reputation, and to secux-ity 
 from molestation in his business and domestic relations, 
 and security from being improperly harassed by legal 
 proceedings. This last group includes defamation, seduc- 
 tion, malicious prosecution, maintenance, and actions for 
 procuring breaches of contract. 
 
 Class (b) comprises all actions for breach of the duty to 
 take care. 
 
 Class (e) includes all misuser of property coming within 
 the maxim " sic utcrc tuo ut alicnum non kedas." 
 
 Generally, the classification above attempted makes no 
 pretence to scientific accuracy. Some of the classes may, 
 and doubtless do, overlap one another. All that is attempted 
 is to give the student a rough idea of the various kinds of 
 unauthorised acts or omissions, which may constitute the 
 first element of a tort, and in the absence of which no 
 amount of loss or damage will suffice to give a right of 
 action. 
 
 Aet. 3. — Of Volition and Intention in relation 
 to tJie unauthorised Act or OniiMion. 
 
 (1) The unauthorised act or omission inust be 
 attributable to active or passive vohtion on the 
 part of the party to be charged, otherwise it will 
 not constitute an element of a tort {p). 
 
 (2) Nevertheless a want of Inioioledge of its 
 illegality and appreciation of its probable conse- 
 quences affords no excuse ; for every person is 
 
 {p) See Wtar Comnrndontr-'i \ . Adcvmon, 1 Q. B. I). 546.
 
 16 Of the Nature of a Tort. 
 
 Art. 3. presumed to intend the probable consequence of 
 ~ any voluntary act or omission of his. 
 
 (3) Where an act or omission is done or made 
 under the influence of pressing danger, and 
 was necessary in order to escape that danger, 
 there is a presumption that it was done or made 
 involuntarily. 
 
 The student must carefully distinguish between the 
 voluntary nature of the act or omission and the want of 
 knowledge or appreciation of the fact that it was not 
 authorised by law. It would be obviously unjust to charge 
 a man with damage caused by some inevitable accident, 
 over which, or over the causes of w-hich, he had no control. 
 On the other hand, it would be highly dangerous to admit 
 the doctrine, that a man who does an act, or makes an 
 omission voluntarily, should be excused the consequences 
 by reason of lack of judgment or of ignorance. 
 
 Illustrations. The following illustrations will, however, help to accen- 
 tuate the difference better than pages of explanation : 
 
 (1) A butcher owns a horse which has always stood 
 quietly at the customers' doors while the butcher apphed 
 for orders. On one occasion, being frightened by a passing 
 steam-roller, the horse runs away, and knocks down and 
 severely injures the plaintiff. Here the butcher is liable ; 
 for he voluntarily left the horse in a public highway 
 unattended. That was the unauthorised omission from 
 which the damage to the plaintiff arose. No doubt the 
 butcher never intended to hurt the plaintiff, nor did he 
 voluntarily cause the horse to run away ; but having once 
 voluntarily omitted to take a precaution which the law 
 required of him, the fact that he did not foresee, and from 
 past experience had no reason to apprehend the result, 
 affords no excuse. 
 
 (2) A person has an unguarded shaft or pit on his pre- 
 mises. If another, lawfully coming on to the premises ou 
 business, falls down the shaft, and is injured, he may bring 
 his action, although there was no intention to cause him or
 
 Volition and Intention. 17 
 
 anyone else any hurt. For the neglect to fence the shaft Art. 3. 
 was an unauthorised omission, and the fall of the plaintiff 
 was the probable consequence of it (q). 
 
 (3) The defendants, a burial board, planted on their own 
 land, and about four feet distant from their boundary 
 railings, a yew tree, luhich grew through and beyond the 
 railings, so as to inojcct over i^laintijf's meadoxv. The 
 plaintiff's horse, feeding in the meadow, ate of that portion 
 of the tree which projected, and died of the poison con- 
 tained therein. The tree was planted and grown with the 
 knowledge of the defendants -.—Held, that the defendants 
 were liable (r). 
 
 (4) On the other hand, where a horse drawing a brougham 
 under the care of the defendant's coachman in a public 
 street, suddenly and without any explainable cause bolted, 
 and notwithstanding the utmost efforts of the driver to 
 control him, swerved on to the footway and knocked down 
 the plaintiff, it was held that the defendant was not liable, 
 as the accident was not attributable to any wrongful act or 
 negligence of the defendant or his servant (s). 
 
 (5) So, too, where a man accidentally shot another without 
 intending to do so, and without being guilty of any negli- 
 gence or want of care in the use of his gun, it was held that 
 no action would lie {t). 
 
 f6) It is a rule of law, that where one brings on to his Xjchoh v. , 
 ^ ' T 11 i 1 1 ;i Maryland. 
 
 property for his owni purposes, and collects and keeps there, 
 
 any substance likely to do injury to his neighbour if it 
 
 escapes, he must, in general, keep it at his peril {u). Yet 
 
 where the escape is caused by the act of God, or vis 
 
 major, he is not liable. In Nichols v. Marsland (r), the 
 
 facts were as follows :— On the defendant's land were 
 
 . (q) Indennaur v. Dame><, L. R. 2 C. P. 311 ; White v. France, 
 •2 C. P. D. 308. 
 
 (r) Crowhurst v. Amersham Burial Board, 4 Ex. I). 5. 
 
 (.s) Manzoni v. Doug/a-^, 6 Q. B. D. 14.5. 
 • (0 Stanley v. Powell, [1891] 1 Q. B. 86. 
 . ((() Fletcher v. Bylaud-s, L. R. 3 H. L. 330. 
 
 (r) L. R. 10 Ex. 255, and on appeal, 2 Ex. U. 1.
 
 18 Of the Natuee of a Tort. 
 
 Art. 3. artificial pools containing large quantities of water. These 
 pools had been formed by damming up, with artificial 
 embankments, a natural stream which rose above the 
 defendant's land, and flowed through it, and which was 
 allowed to escape from the pools by successive weirs into 
 its original course. An extraordinary rainfall caused the 
 stream and the water in the pools to swell, so that the 
 artificial embankment was carried away by thepresstire, and 
 the water in the pools, being suddenly loosed, rushed down 
 the course of the stream and injured the plaintiff's adjoining 
 property. The plaintiff having brought an action against 
 the defendant for damages, the jury found that there was 
 no negligence in the construction or maintenance of the 
 works, and that the rainfall was most excessive, and 
 amounted to a vis major or visitation of God. Under these 
 circumstances, it was held that no action was maintainable. 
 
 Box V. JiihJi. (7) And so again where the reservoir of the defendant 
 was caused to overflow by a third party sending a great 
 quantity of water down the drain which supplied it, and 
 damage was done to the plaintiff, it was held that the 
 defendant was not liable ; for the overflow was not caused 
 by anything which he had done, nor had he any reasonable 
 means of preventing it. As Pollock, B., said : " Here this 
 water has not been accumulated by the defendants, but has 
 come from elsewhere and added to that which was properly 
 and safely there. For this the defendants . . . cannot 
 be held liable " (w). 
 
 Rj/luii'h V. (8) The last cited cases must be carefully distinguished 
 
 Flttdier. from the well-known leading case of Ilijlands v. Fletcher {x), 
 
 the facts of which were as follows : The plaintiff v;as the 
 lessee of mines. The defendant w'as the owner of a mill, 
 standing on land adjoining that under which the mines 
 were worked. The defendant desired to constt'uct a reser- 
 voir, and employed competent persons to construct it, so that 
 there was no question of negligence. The plaintifi" had 
 worked his mines up to a spot where there were certain old 
 passages of disused mines ; these passages were connected 
 
 {iv) Box V. Juhh, 4 Ex. 1). 7(j. (.c) L. R. :? H. L. 330.
 
 Y()LiTioN AND Intention. 19 
 
 with vertical shafts, cominitnicating with the laud above, Art. 3. 
 which had also been out of use for years, and were "' 
 apparently filled with marl and earth of the surrounding 
 land. Shortly after the water had been introduced into the 
 reservoir it broke through some of the vertical shafts, 
 tlowed thence through the old passages, and finally flooded 
 the plaintiff's mine. It was contended on behalf of the 
 defendant that there was no negligence on his part, and 
 that, if he were held liable, it would make every man 
 responsible for every mischief he occasioned, however 
 involuntarily, or even unconsciously, whereas, he argued, 
 knowledge of possible mischief was the very essence of 
 the liability incurred by occasioning it. The House of 
 Lords, however, held the defendant to be liable on the 
 ground that "a person who, for his 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 he 
 does not do so is i)rimd facie responsible for all the 
 damage which is the natural consequence of its escape." 
 It therefore appears that the act which was not authorised 
 by law was the alloicing the water to escape, and whether 
 this was the result of negligence, or whether it was the 
 result of a latent and undiscovered defect in the engineering 
 works, was quite immaterial. The escape of the water was 
 caused by something of which the defendant was ignorant, 
 not by something altogether beyond his control or volition, 
 like a visitation of Providence or the act of a stranger over 
 whom he has no control, and which he could not reasonably 
 have anticipated. As Mellish, L.J., said in Nichols v. 
 Marsland (//) : "If, indeed, the damages were caused by the 
 act of the party ^cithont more—SuS where a man accumulates 
 water on his own land, but, owing to the peculiar nature or 
 condition of the soil, the water escapes and does damage to 
 his neighbour— the case of Bylands v. Fletcher estab- 
 lishes that he must be held liable." But where there 
 is something more — either the act of God or vis major (as iu 
 Nichols v. Marsland) or the act of a stranger over whom he 
 has no control and which he could not reasonably have 
 
 (y) 2 Ex. D.at p. 5.
 
 20 
 
 Of the jS^ature of a Toet. 
 
 Art. 3. 
 
 Caiiaa 
 
 anticipated (as in Box v. Jitbh) — which is the approximate 
 cause of the damage, then Rylands v. Fletcher has no 
 appHcation. The case of Bylands v. Fletcher must also be 
 carefully distinguished from that of Wilson v. Waddell{z), 
 in ^vhich the defendant had not hrowjht water on to his 
 land, but had merely so used his land that it collected the 
 rainfall. One was a non-natural user, and the other a 
 natural user in accordance with the ordinary rights of 
 property. 
 
 The rule to be derived from these cases is, therefore, that 
 a person who brings onto his land a thing of a dangerous 
 nature, which if it escapes is likely to do damage, does it at 
 his peril, and is liable for the consequences whether he 
 is negligent or not {Bylands v. Flctclicr), unless he can 
 show that he took all reasonable precautions, but that the 
 thing escaped by reason of the happening of some natural 
 event which he could not reasonably have been expected to 
 provide against {Nichols v. Marsland), or by reason of the 
 interference of some third person over whom he had no 
 control, and whose interference he could not reasonably 
 have anticipated {Box v. Juhh). 
 
 (9) A person wrongfully threw a squib onto a stall, the 
 keeper of which, in self-defence, threw it off again ; it then 
 alighted on another stall, was again thrown away, and, 
 finally exploding, blinded the plaintiff. The liability of the 
 persons who threw it away from their stalls in self-defence 
 was not the question before the court, but a dictum of 
 De Grey, C.J., is a good illustration of the rule. He said : 
 " It has been urged that the intervention of a free agent 
 will make a difference : but I do not consider Willis and 
 Kyal (the persons who merely threw away the squib from 
 their respective stalls) as free agents in the present case, 
 but acting under a compulsive necessity for their own safety 
 and self-preservation " {a). The first illustration to Art. 1 
 (supra) is another example of the rule that a person acting 
 under the influence of pressing danger is not a voluntary 
 agent. 
 
 (;) 2 App. Cas. 95, and supra, p. 12. 
 (a) Scott V. Shepherd, 2 W. Bl. 894.
 
 Malice and Moral Guilt. 
 
 Art 1. — Malice and Moral Guilt. 
 
 Art. 4. 
 
 Except ill the case of an action for maliciously 
 and without reasonable and probable cause 
 putting in motion legal process, evil motive is 
 not an essential ingredient in tort. 
 
 An evil motive cannot make wrongful an act 
 that would otherwise not be so [h). 
 
 A good motive cannot make justifiable an act 
 that would otherwise be WTongful. 
 
 " Malice in common acceptation of the term means ill- Malice, 
 will against a person, but in its legal sense it means a 
 wrongful act done intentionally without just cause or 
 excuse " (c). 
 
 It is true to say of some acts that they are not tortious 
 unless done maliciously, provided that the term ' ' mahciously ' ' 
 is used in its strict legal sense. Thus, it is not actionable 
 to make an untrue statement if it is believed to be true ; 
 but if a person intentionally and without just cause or 
 excuse makes an untrue statement, intending that another 
 shall act upon it {i.e., maliciously), his act is wrongful, 
 and is actionable if it results in damage. So, too, if A. 
 intentionally and without just cause or excuse induce 
 B. to break his contract of service with C, and damage 
 results, A. commits a tort and may be sued by C. ; and it 
 is immaterial whether in either of the examples the person 
 is influenced by good or bad motives. A. in the last example 
 may honestly think he is acting in the best interests of B. 
 and C. His motive is then good ; there is no " malice " in 
 the sense of ill-will ; but the act is malicious in the sense 
 m which the term is used by Bayley, J. It is only in this 
 sense of the term that a conspiracy must be malicious in 
 order to be actionable. 
 
 Conversely, if A. induces B. not to enter into a contract 
 of service with C, A. commits no wrong, and C. has no 
 
 (/') Mayor, e.tc. of Bradford v. PicUes, [1S95] A. C. 587 ; Allen v. 
 I'lood, [1898] A. C. 1. * 
 
 (c) Per B.\yl?:y, J., in Broimujt v. Pro.sstr, 4 B. & C. 247, 255.
 
 22 Of the Nature of a Tort. 
 
 Art. 4. cause of action however much damage he may suffer, and 
 althou<i;h A. may be acting from the most wicked and selfish 
 motives ((/) ; for A.'s evil motive does not make wrongful 
 his act which, apart from motive, is not a tort. 
 
 Malicious The one kind of action in w^iich evil motive is a necessary 
 
 prosecution . tj.- t ■ i.- -it t- 
 
 and libel ingredient is malicious prosecution, including malicious 
 
 arrest and maliciously taking proceedings in bankruptcy and 
 liquidation, and there is an apparent exception in the case 
 of libel and slander. As to these Lord Heeschell says (e) : 
 "Great stress was laid at the bar on the circumstance 
 that in an action for maliciously and without reasonable and 
 probable cause putting in motion legal process an evil motive 
 is an essential ingredient. I have always understood, and 
 I think that has been the general understanding, that this 
 was an exceptional case. The person against whom pro- 
 ceedings have been initiated without reasonable and probable 
 cause is priind facie wronged. It might well have been held 
 that an action always lay for thus putting the law in motion. 
 But I apprehend that the person taking proceedings was 
 saved from liability if he acted in good faith, because it was 
 thought that men might otherwise be too much deterred 
 from enforcing the law, and that this would be disadvan- 
 tageous to the public. Some of the learned judges cite 
 actions of libel and slander as instances in which the legal 
 liability depends on the presence or absence of malice. I 
 think this a mistake. The man who defames another by 
 false allegations is liable to an action, however good his 
 motive, and however honestly he believed in the statement 
 he made. It is true that in a limited class of cases the law, 
 under certain circumstances, regards the occasion as privi- 
 leged, and exonerates the person who has made false 
 defamatory statements from liability if he has made them in 
 good faith. But if there be not that duty or interest which 
 in law creates the privilege, then, though the person making 
 the statements may have acted from the best of motives, 
 and felt it his duty to make them, he is none the less liable. 
 
 (<J) Alh II V. Flood, [LSUSJ A. C. 1. See especially tlie opinion of 
 Loid Hkhschkm,, at p. 1"24. 
 
 (0 la Alkii V. Flood, [1898] A. C, at p. 1-J.">.
 
 Malice and Moral Guilt. 23 
 
 The gist of the action is that the statement was false and Art. 4. 
 defamatory. Because in a strictly limited class of cases the 
 law allows the defence that the statements were made in 
 good faith, it seems to me, with all deference, illogical to 
 affirm that malice constitutes one of the elements of the 
 torts known to the law as libel and slander." 
 
 As evil motive has generally no place in the law of torts, :Muial 
 so, too, the moral turpitude of the defendant is generally,"''""**" 
 immaterial. In the case of torts which consist of infringe- j 
 ments of absolute rights, trespass, and the like, a person > 
 may be guilty of a tort though he act perfectly honestly and 
 innocently, honct fide believing that he has a right to do 
 ^vhat he is doing. Thus, if I walk over another man's land 
 in the honest but mistaken belief that I have a right to do| 
 so by I'eason of there being a public way over the land, or 
 acquire, by purchase from A., B.'s goods, honestly believing 
 they are A.'s, in each case I am guilty of a tort. My good 
 intentions or the fact that I have made a mistake are no 
 defence. 
 
 So, too, in libel, a man who (except on a privileged 
 occasion) publishes a false defamatory statement of another, 
 is guilty of a tort, although he may do it from the most 
 praiseworthy motives and in the honest belief that the 
 statement is true and that it is for the good of the 
 defendant that it should be published. 
 
 Even negligence involves no moral guilt. The state of 
 mind of the defendant is immaterial. The only question is, 
 What has he done or left undone? Has he acted as a 
 reasonable and prudent man would do in the circumstances ? 
 Not, has he done what he thought was the best thing to 
 do ? The law pays no regard to the moral culpability of the 
 defendant, but considers only whether his conduct has been 
 reasonable and prudent as judged from the standpoint of 
 the average man. 
 
 It is said, indeed, that in order to constitute fraud there Fnuul. 
 must be some moral turpitude ; and in a sense this is true. 
 Actionable fraud consists in the making of an untrue state- 
 ment with the intention of deceiving and with knowledge
 
 24 Of the Nature of a Toet. 
 
 Art. 4. that it is untrae or absolutely recklessly without cariug 
 whether it is true or untrue. The mau who does this is no 
 doubt in most cases morally guilty ; but it is conceivable 
 that a man may, from the highest motives and honestly 
 believing that he is doing right, make a statement which be 
 knows to be untrue, intending that that statement should 
 deceive. Nevertheless his conduct, though possibly morally 
 justifiable, is inexcusable in law. 
 
 When, therefore, in the law of torts the phrase " malice " 
 is used, it must be understood in its legal sense, i.e., as 
 meaning a wrongful act done intentionally without just 
 cause or excuse. Only in connection with malicious pro- 
 secution has it a different meaning, and there, as will be 
 seen hereafter, it does not necessarily mean ill-will against 
 a person. 
 
 Art. 5. — Of tJie connection of the Damage with 
 the unauthorised Act or Omission. 
 
 (1) In those torts in which damage is a 
 necessary part of the cause of action the 
 damages proved must he the immediate con- 
 sequence of, that is, such as would in the 
 ordinary course of events naturally flow from, 
 the unauthorised act or omission. 
 
 (2) In all actions of tort only such damages 
 are recoverable as are the immediate conse- 
 quence of, that is, such as would in the ordinary 
 course of events naturally How from, the un- 
 authorised act or omission. 
 
 Illustrations (1) The defendant, in breach of the Police Act (2 & 
 3 Vict. c. 47, s. 54), washed a van in a public street and 
 allowed the waste water to run down the gutter towards a 
 grating leading to the sewer, about twenty-five yards ofl'. 
 In consequence of the extreme severity of the weather, the 
 grating was obstructed by ice, and the water flowed over a
 
 Connection of Damage with AVrongful Act. 25 
 
 portion of the causeway, which was ill-paved and uneven, Art. 5. 
 
 and there froze. There was no evidence that the defendant 
 
 knew of the grating being obstructed. The plaintiff's horse, 
 
 while being led past the spot, slipped upon the ice and bi'oke 
 
 its leg. In giving judgment in an action brought in respect 
 
 of this damage, Bovill, C.J., said : " No doubt one who 
 
 commits a wrongful act is responsible for the ordinary 
 
 consequences which are likely to result therefrom"; but 
 
 " where there is no reason to expect it, and no knowledge 
 
 in the person doing the wrongful act, that such a state of 
 
 things exists as to render the damage probable, if injury 
 
 does result to a third person it is generally considered that 
 
 the wrongful act is not the proximate cause of the injury, so 
 
 as to render the wrongdoer liable to an action. If the 
 
 drain had not been stopped, and the road had been in a 
 
 proper state of repair, the water would have passed away 
 
 without doing any mischief to anyone. Can it then be said 
 
 to have been the ordinary and probable consequence of the 
 
 defendant's act that the water should have frozen over so 
 
 large a portion of the street so as to occasion a dangerous 
 
 nuisance ? I think not. There was no distinct evidence to 
 
 show the cause of the stoppage of the sink or drain, or that 
 
 the defendant knew it was stopped. He had a right, then, 
 
 to expect that the water would flow down the gutter to the 
 
 sewer in the ordinary course, and, but for the stoppage (for 
 
 which the defendant is not responsible), no damage would 
 
 have been done." And accordingly judgment was given in 
 
 favour of the defendant (/). 
 
 (2) But where water, w^hich had trickled down from a 
 waste-pipe at a railway station onto the platform, had 
 become frozen, and the plaintiff, a passenger, stepped upon 
 it and fell and was injured, the court held the defendants 
 liable, on the ground, probably, that the non-removal of a 
 daiKjerous nuisance, like ice, from their premises, was the 
 proximate cause of the injury {g). 
 
 (J) Sharp V. Pon-e//, L. R. 7 C. P. 208. 
 
 (;/) Shepherd v. Mid'and Bail. Co., cited Inj pl'dntiff anjuendo ; 
 Murp V. Powdl, .supra.
 
 26 . Of the Nature of a Tort. 
 
 Art. 6. 
 Art. 6 — WJiere Damage ivoidcl have been suffered 
 
 in the absence of unauthorised Act or 
 
 Omission. 
 
 Where the elements of a tort are present, 
 the fact that similar damages would have been 
 suffered by the plaintiff, even if the wrongful 
 act or omission had not been done or made by 
 the defendant, does not excuse the latter. It is, 
 however, open to him to show, if he can, that 
 there is a substantial and ascertainable portion 
 of the damages fairly to be attributed solelij to 
 the other circumstances, and in that case he is 
 entitled to a proper deduction in that respect (//). 
 
 Illustrations. Thus, where it was the duty of the defendants to keep a 
 river wall at a height of four feet two inches above Trinity 
 high-water mark, and they only kept it at a height of four 
 feet, and an extraordinary tide rose four feet live inches, 
 and flooded the plaintiffs' works; it was held, that as the 
 defendants had committed a breach of duty in not building 
 their wall to the proper height, and some damage having 
 been suffered in consequence thereof, an action lay against 
 them, although even if the wall had been of the required 
 height, the tide would still have overflowed it. James, L.J., 
 said: "Suppose that the same damage would have been 
 done by the excess of height of the tide if the wall had been 
 of due height as has been done ; yet if the damage has 
 been done by reason of the wall not being of due height, 
 the defendants are liable for that damage arising from that 
 cause, and are not excused because they would not have 
 been liable for similar damage if it had been the result 
 solely of some other cause ; and moreover, long before the 
 tide rose even to four feet, it began to flow over towards 
 and into the plaintift's' works, and of course the defendants 
 cannot escape their liability for the damage so occasioned, 
 
 (h) See Nilro-Plioaphule Co. v. Lo)i(loii (iik/ i</. K(ith<iriiit Dock-s Co., 
 9 Ch. D. 503.
 
 Damage Partly owing to Wrongful Act. 27 
 
 because the tide afterwards went on swelling and swelling, Art. 6. 
 even jf it could be shown that the same damage would have 
 been occasioned by that additional height of water if the 
 wall of the defendants had been in proper condition. They 
 have been guilty of neglect, and had done damage before 
 the extra height had been reached, and their liability to the 
 plaintiffs was complete when the damage was done. . . . 
 No doubt if the court can see on the whole evidence [as 
 they could not see in that case] that there was a substantial 
 and ascertainable portion of the damage fairly to be attri- 
 buted solchj to tlic excess of the tide above the i^roper JieigJtt 
 which it was the duty of the defendants to maintain, occur- 
 ring after the excess had occurred, and which would have 
 happened if the defendants had done their duty, then there 
 ought to be a proper deduction in that respect " (/). 
 
 Aet. 7. — To what Extejit Civil Bemedy inter- 
 fered with, wJiere the unauthorised Act or 
 Omission constitutes a Felony. 
 
 (1) Where any unauthorised act or omission 
 is, or gives rise to consequences which make it, 
 a felony, and it also violates a private right, 
 or causes private and peculiar damage to an 
 individual, the latter has a good cause of action. 
 
 (2) But (scnible) the policy of the law will not 
 allow the person injured to seek civil redress, if 
 Jie has failed in his duty of bringing, or endea- 
 vouring to bring, the felon to justice. 
 
 (3) Where the offender has been brought to 
 justice at the instance of some third person 
 injured by a similar offence, or where prosecution 
 is impossible by reason of the death of the 
 
 (/) Nitro-PhoiiphaUi Co' v. London and St. KtUhwine. DocLa Co., 
 9 Ch. D. 526.
 
 28 
 
 Of the Nature of a Tort. 
 
 Art. 7. 
 
 How to 
 ent'oree tlie 
 I'ule. 
 
 Opinion of 
 Br.\m\veli. 
 L.J. 
 
 offender, or (?) by reason of his escape from 
 the jurisdiction before a prosecution could by 
 reasonable diligence have been commenced, the 
 right of action is not suspended (/). 
 
 But although this would seem to be the rule, it is 
 extremely doubtful how it can be enforced. It is no 
 ground for the judge to direct a nonsuit (k). It cannot be 
 raised by a summons to strike out the statement of claim (/) ; 
 nor by pleading the felony in the defence, because the effect 
 of that would be to allow a party to set up his own 
 criminality. But it has been suggested, that if an action 
 were brought against a person who was either in the course 
 of being prosecuted for felony, or was liable to be prosecuted 
 for felony, the summary jurisdiction of the court might be 
 invoked to stay the proceedings, which would involve an 
 undue use, probably an abuse, of the process of the 
 court (vi). 
 
 In Ex parte Ball, Be Slieplierd [n), Bramwell, L.J., said : 
 " There is the judgment in Ex imrte Elliott (o), besides the 
 expressed opinion for centuries, that the felonious origin of 
 a debt is in some way an impediment to its enforcement. 
 But in what way ? I can think of only four possible 
 ways : 1. That no cause of action arises at all out of a 
 felony. 2. That it does not arise till prosecution. 3. That 
 it arises on the act, but is suspended till prosecution. 
 4. That there is neither defence to, nor suspension of the 
 claim by, or at the instance of, the felon, but that the court 
 of its own motion, or on the suggestion of the Crown, 
 should stay proceedings till public justice is satisfied. It 
 must be admitted that there are great difficulties in the 
 way of each of these theories. That the first is not true is 
 shown by Marsh v. Keating (j)), where it was held, that 
 
 (j) /'fer Bagciallay, L.J., E.r parte Ball, Be Shepherd, 10 Ch. I). 673 ; 
 and seeper CocKBCRN, C.J., We//s v. Abrahams, L. R. 7 Q. 15. 557. 
 (/,•) ]Velf<i\. Abrahams, supra. 
 (I) l!oope V. D'Avigdor, 10 Q. B. D. 41 2. 
 
 (m) Wel/sv. Ab7-aham.s, supra. (o) 3 ^Nlont. & A. 110. 
 
 (n) 10 Ch. 1). 667. • (/') 1 Bing. N. C. 198.
 
 Civil Remedy for Felonious Act. 29 
 
 pi-osecution being impossible, a felony gave rise to a Art. 7. 
 recoverable debt. It is difficult to suppose that the second 
 supposed solution of the problem is correct. That would 
 be to make the cause of action the act of the felon plus a 
 prosecution. The cause of action would not arise till after 
 both. Till then, the Statute of Limitations would not run. 
 In such a case as the present, or where the felon had died, 
 it would be impossible. And it is to be observed that it is 
 never suggested that the cause of action is the debt and the 
 prosecution. The third possible way is attended by diffi- 
 culties. The suspension of a cause of action is a thing 
 nearly unknown to the law. It exists where a negotiable 
 instrument is given for a debt, and in cases of compositions 
 with creditors, and these were not held till after much 
 doubt and contest. There may be other instances. And 
 what is to happen ? Is the Statute of Limitations to run ? 
 Suppose the debtor or his representative sue the creditor, is 
 his set-off suspended? Then how is the defence of impedi- 
 ment to be set up ? By plea ? That would be contrary to 
 the rule nemo allcgaus snani tiirpitudinon. est audiciidus. . 
 Besides it would be absurd to suppose that the debtor 
 himself would ever so plead, and face the consequences. 
 Then is the fourth solution right ? Nobody ever heard of 
 such a thing ; nobody in any case or book ever suggested 
 it till Mr. Justice Blackburn did as a possibility. Is it left 
 to the court to find it out on the pleadings? If it appears 
 on the trial, is the judge to discharge the jury ? How is 
 the Crown to know of it? There are difficulties, then, in 
 all the possible ways in which one can suppose this impedi- 
 ment to be set up to the prosecution of an action. But, 
 again, svippose it can be, what is the result? It has been 
 held, that when the felon is executed for another felony the 
 claim may be maintained. What is to happen when he 
 dies a natural death, when he goes beyond the jurisdiction, 
 when there is a prosecution, and an acquittal from collusion 
 or carelessness by some prosecutor other than the party 
 injured? All these cases create great difficulties to my 
 mind in the application of this alleged law, and go a long 
 way to justify Mr. Justice Blackburn's doubt. Still after
 
 ) Of the Nature of a Tort. 
 
 Art. 7. the continued expression of opinion and the cases of Ex 
 2xirte Elliott and Wcllock v. Constantino, I should hesitate 
 to say that there is no practical law as alleged by the 
 respondent." 
 
 Unfortunately the point was not necessary for the 
 decision in Ex imrte Ball, and consequently the law 
 still remains in a very hazy and unsatisfactory state, with 
 regard to which it is impossible to express any opinion 
 with confidence. However, the rule, as above expressed, 
 has received the sanction of nearly three centuries ; and 
 although the criticisms of Beamwell, L.J., throw some 
 doubt upon its accuracy, it must, I think, be taken to be 
 law until it is expressly overruled. 
 
 In a recent case in Ireland a Divisional Court declined to 
 stay of its own motion, without any application by the 
 defendant, an action of assault on the ground that the 
 assault amounted to a felony, and had not been prose- 
 cuted {q). 
 
 It must be observed that the rule only applies as against 
 a plaintiff who has failed in Ms duty of endeavouring to 
 bring the felon to justice, and not to third parties. \Yhere, 
 therefore, in an action for seduction of the plaintiff's 
 daughter, a paragraph of the claim alleged that the defen- 
 dant administered noxious drugs to the daughter for the 
 purpose of procuring abortion ; it was held, that the para- 
 graph could not be struck out as disclosing a felony for 
 which the defendant ought to have been prosecuted, 
 inasmuch as the plaintiff was not the person upon whom 
 the felonious act was committed, and had no duty to 
 prosecute {r). 
 
 And the rule does not apply where the defendant is not 
 the person guilty of the felony. So, where A. had stolen 
 goods, and B. has innocently bought them from A., the 
 
 [q) A. V. ]}., 24 L. R. Ir. 234 ; .S'. C.,suh nom., S. v. S., 16 Cox C. C. 
 ')66. 
 
 (r) Applthy V. FranWn, 17 Q. B. D. 93; and see also OsJ^orn v. 
 Gillttt, L. R. 8 Ex. 88.
 
 Civil Kemedy for Felonious Act. 31 
 
 ONYuer may bring an action of trover against B., although Art. 7. 
 no steps have been taken to bring A. to justice (s). 
 
 It is expressly provided by Lord Campbell's Act (see post, 
 Part II., Chap. VII.), that actions for damages brought in 
 respect of the death of any person under that Act, shall be 
 maintainable " although the death shall have been caused 
 under such circumstances as amount in law to felony." 
 
 (.s) White V. SpetfKjm, 13 M. & W. (iO.S.
 
 ( 32 ) 
 
 CHAPTEE II. 
 
 VARIATION IN THE GENERAL PRINCIPLE WHERE 
 THE UNAUTHORISED ACT OR OMISSION IS 
 ONE FORBIDDEN BY STATUTE. 
 
 Aet. 8. — General Bule. 
 
 (1) When a statute gives a right., or creates a 
 dutij^ in favour of an individual or class, then, 
 if no penalty is attached, any infringement of 
 the right or breach of the duty will be a tort 
 remediable in the ordinary way {a). 
 
 (2) But where a penalty is attached (whether 
 recoverable by the party aggrieved or not), it 
 then becomes a question of construction whether 
 the legislature intended that the penalty should 
 be the only satisfaction, or whether, in addition, 
 the party injured should be entitled to sue for 
 damages. 
 
 (3) In the case of a private Act imposing an 
 active duty, the penalty will jjrimd facie be 
 taken to be the only remedy given for breach 
 of the duty {h). 
 
 Illustrations. (1) By Acts of Parliament the harbour of B. was vested 
 in the defendants, and its hmits v;ere defined. The defen- 
 dants had however jurisdiction over the harbour of P. and 
 the channel of P. beyond those limits, for the purpose of, 
 inter alia, buoying " the said harbour and channel." A 
 moiety of the net light duties to which ships entering or 
 
 (a) Mtrmy Docks Co. v. O'lhhs, L. R. 1 H. L. 93. 
 , (h) Afk-inson v. Xenxuift/c Wafer Co., 2 Ex. D. 441.
 
 Breach of Statutory Duties. 33 
 
 leaving the harbour of P. contributed, was to be paid to Art. 8. 
 the defendants and to be appHed by them in, inter edict, 
 l)Uoying and Hghting the harbour and channel of P. A 
 vessel was wrecked in the channel of P., w^iich under the 
 Wrecks Eemoval Act, 1877 (40 & 41 Vict. c. 16), s. 4, 
 the defendants had power to, and did partially, remove. 
 The wreck not removed was not buoyed, and the plaintiff's 
 vessel was in consequence wrecked : — Held, that the statutes 
 imposed upon the defendants an obligation to remove the 
 wreck from the channel, or to mark its position by buoys, 
 and that not having done so they were liable in damages to 
 the plaintiff (c). 
 
 (2) In Wolverhampton Waterworks Co. v. Haichesford {(I) Rules in 
 WiLLES, J., lays down the following rules for the construe- ^^^^° '\VfxHr 
 tion of statutes giving remedies for statutory duties : " There n-orkx Co. v. 
 are three classes of cases in w4iich a liability may be created "" ''■'• ''' 
 by statute. There is a class where there is a liability 
 existing at connnon law, which is only re-enacted by the 
 statute, with a special form of remedy ; there, unless the 
 statute contains words necessarily excluding the common 
 law^ remedy, the plaintiff has his election of proceeding 
 either under the statute or at common law. I'Then there 
 is a second class, which consists of those cases in which a 
 statute has created a liability, but has given no special 
 remedy for it ; there the party may adopt an action of debt 
 or other remedy at common law to enforce it. -^ 'The third 
 class is where the statute creates a liabiHty not existing at 
 common law, and gives also a particular remedy for enforcing 
 it . . . and with respect to that class it has been always 
 held that the party must adopt the remedy given by the 
 statute." 
 
 (f) Dormont v. FurneNs Rail. Co., 11 Q. B. 1). 490. 
 [d) 28 L. J. C. P. 242.
 
 34 Breach of Statutory Duties. 
 
 Art 9 
 Art. 9. — Where the Act or Omission is forbidden 
 
 to iirevent a particular Mischief. 
 
 Where a duty is created by a statute for the 
 purpose of preventing a mischief of a particular 
 kind, a person who, by reason of another's neg- 
 lect of the statutory duty, suffers a loss of a 
 different kind, is not entitled to maintain an 
 action for damages in respect of such loss (e). 
 
 Illustrations. (Y) Thus, in the principal case, the defendant, a shipowner, 
 midertook to carry the plaintiff's sheep from a foreign port 
 to England. On the voyage, some of the sheep were washed 
 overboard. This would not have happened if the defendant 
 had obeyed certain directions contained in an Order of the 
 Privy Council, which was made under the authority of the 
 Contagious Diseases (Animals) Act, 1869. It was, however, 
 held that the object of the statute and order being to prevent 
 the spread of contagious disease among animals, and not to 
 protect them against the perils of the sea, the plaintiff could 
 not recover (c). 
 
 (2) And so, where certain regulations were established by 
 statute for the management of the pilchard fishery, and 
 enforced by the imposition of penalties, it was held, that 
 a fisherman who had lost his proper turn and station, 
 according to the regulations, through the breach of them 
 by another fisherman, could not maintain an action for 
 damages against him for the loss of a valuable capture of 
 fish, which the latter had taken, through being in such 
 wrong place. For the object of the statute was to regulate 
 the fishery, and not to give any individual fisherman a right 
 to any particular place (/). 
 
 (ft) Gorris v. S<-ott, L. R. 9 Ex. 12.5. 
 (/) Sterf-m V. .hacoch, 11 Q. B. 741.
 
 Observance of Statutory Precautions. 35 
 
 Art. 10. 
 Art. 10. — Tlie Observance of Htcduturij Frecau- 
 
 tioiis does not restrict Common Law LiahUitij. 
 
 Unless a statute expressly or by necessary 
 implication restricts common law rights, such 
 rights remain unaffected. 
 
 Thus, the defendant was possessed of a steam traction- 
 engine, and whilst it w^as being driven by the defendant's 
 servants along a highway, some sparks, escaping from it, 
 set fire to a stack of hay of the plaintiff's standing on a 
 neighbouring farm. The engine was constructed in con- 
 formity with the Locomotive Acts, 1861 and 1865, and 
 there was no negligence in the management of it. It w^as 
 nevertheless held that the defendant was liable, on the 
 ground that the engine being a dangerous machine (and, 
 therefore, within the doctrine of Fletcher v. Bylanch) an 
 action would have been maintainable at common law, and 
 that the Locomotive x\cts did not restrict the common law 
 liability {ij). 
 
 (il) PoireN V. Fall, 5 Q. B. D. .597.
 
 ( 36 ) 
 
 CHAPTER III. 
 
 RELATION OF CONTRACT AND TORT. 
 
 Akt. 11. — Distinction hetiveen Actions for Tort 
 and for Breach of Contract. 
 
 (1) If the cause of complaint is for breach of 
 a contractual duty, (that is to say, is for an act 
 or omission Avhich would not give rise to any 
 cause of action without proof of a contract), the 
 action is one of contract. 
 
 (2) But if the relation of the plaintiff and the 
 defendant be such that a duty arises from the 
 relationship, irrespective of contract, for a breach 
 of that duty the remedy is an action of tort («). 
 
 Comment. Formerly a plaintiff had to be careful to frame his action 
 
 either in tort or in contract, and the rule then was that if 
 
 the act or omission complained of was both a breach of duty 
 
 arising apart from contract, and a breach of a contract not to 
 
 , do or to do the act or omission complained of, the plaintilf 
 
 / might recover in contract or tort(i). Under the present 
 
 N, ^ system of pleading, a plaintiff need not frame his action 
 
 \ /\ specifically in either contract or tort, and the distinction is 
 
 now chiefly of importance as regards costs. It is also of 
 
 importance as affecting the measure of damages, which is 
 
 not the same in tort and in contract. And the rule is that 
 
 where the wrong is in substance tort, the plaintiff cannot 
 
 merely by suing in contract entitle himself to a larger 
 
 ((/) See A'-//// V. MHtropolUaii Rail. Co., [1S95] 1 Q. B. 944, per A. L. 
 .Smith, L..]., ui jj. 947. 
 
 (b) Brown v. Boormun, 11 CI. & F. 1.
 
 Kelation of Contract and Tort. 37 
 
 measure of damages (c). The rule now followed is that the Art. 11. 
 court looks to the substance, not the form, of the action, 
 and if in substance the cause of complaint is a tort, i.e., a 
 breach of a duty irrespective of contract, the action is 
 regarded as one of tort, although the act or omission 
 complained of is also a breach of contract. 
 
 (1) A railway company owes to a passenger, irrespective Illustrations, 
 of any contract, a duty to take care. The taking of a 
 ticket also constitutes a contract to carry. If the servants 
 of the railway company are negligent, whether by acts of 
 omission or by acts of commission, the cause of action is in 
 substance a tort, being a breach of a duty arising irrespective 
 of contract, although in form the action might be framed as 
 a breach of contract {d). 
 
 2. A person who takes in a horse under a contract of 
 agistment, impliedly undertakes not to be negligent in 
 respect of the horse. But as the agister is a bailee, the 
 same duty to take care arises irrespective of the contract, 
 and an action for not taking care is in substance an action 
 of tort for negligence (c). So in all cases of actions between 
 bailor and bailee, if the duty arises out of the bailment at 
 common law, a breach of that duty gives rise to an action 
 for tort : but if the duty only arises out of a contract 
 between the parties, and would not apart from such contract 
 arise from the mere relationship of bailor and bailee, a 
 breach of the duty is properly the subject of an action for 
 breach of contract (/). 
 
 Art. 12. — Privity not neccssanj where the 
 Remedy is in Tort. 
 
 When something clone in pursuance of a 
 contract between two persons gives rise to a 
 relationship between one of them and a third 
 
 (c) Chinery v. Viall, 5 H. & N. 295. 
 
 {(l) Taylor v. ManchcMcr, Sheffield and Lincobisliire Rail. Co., [ISO-j] 
 1 Q. B. 134 ; Kelly v. Metropolitan Rail. Co., [1S95] 1 Q. B. 944. 
 (t) Turner v. StalUbra-^s, [1898] 1 Q. B. 5G. 
 (f) Ihid., at p. 60, per Collins, L.J.
 
 38 Eelation of Contract and Toet. 
 
 Art. 12. person, such that the one owes a duty to the 
 third person, irrespective of the contract, the 
 third person cannot sue on the contract because 
 he is not privy to it, but he can sue in tort 
 . for breach of the duty arising, irrespective of the 
 contract. 
 
 Illustrations. (1) A man employs a surgeon to attend his wife or his 
 infant son. By reason of the surgeon's neghgence, the 
 patient is injured. There is a contract between the man 
 who calls in the surgeon and the surgeon, but none between 
 the surgeon and tne patient. But irrespective of the con- 
 tract, the surgeon owes a duty to take care by reason of the 
 relationship of surgeon and patient. x\nd for breach of this 
 duty the patient can sue in tort (f/). 
 
 (2) A passenger by train lost his luggage by reason of 
 the negligence of the company's servants. The passenger's 
 fare had been paid by his master. There was accordingly 
 no contract between the passenger and the railway com- 
 pany — nevertheless the company were as bailees bound to 
 take care of the passenger's luggage, and for breach of that 
 duty the passenger could sue in tort (Ji). 
 
 (3) A servant of the plaintiff took a ticket for a journey 
 on the defendant's railway, and a portmanteau of his was 
 accepted by the defendants as his personal luggage. Tlie 
 portmanteau contained his livery, which w^as the property 
 of the plaintiff. By reason of the negligence of a porter in 
 the employment of the defendants, the livery was destroyed. 
 There was a contract between the servant and the railway 
 company, but none between the plaintiff and the company. 
 But the company owed the plaintiff a duty to take care by 
 reason of their having accepted the portmanteau for carriage, 
 and for breach of this duty the plaintiff could maintain an 
 action of tort (i). 
 
 ((j) UUulii;!! V. Stc(j(jal/, ") -Bing. N. C. 257 ; I'ippiu v. Shtppard, 
 11 Piico, 40U. 
 
 [h) Mur-shaK \. York a)i(l Xtwcanth: Rail. Co., 11 C. B. 6o3. 
 («■) Mtux V. Grtat Easttrn Rail. Co., [189")] 2 Q. B. 387.
 
 Pkivity not Necessary. 39 
 
 (4) A father bought a gun for the use of himself and his Art. 12. 
 so)i, and the defendant sold it to him for that 2)urposc, 
 fraudulently representing it as sound, and it exploded and 
 injured the son ; it was held that the son could maintain 
 an action of deceit, although not being privy to the contract 
 of sale he could not have sued in contract on a warranty 
 that the gun was sound {j). 
 
 5. Again, where the defendant sold to A. a hair- wash, to he 
 used by A.'s loife, and professed that it was harmless, but in 
 reality it was very deleterious, and injured A.'s wife, it was 
 held that she had a good cause of action against the defen- 
 dant, for the hairdresser owed A.'s wife a duty, irrespective 
 of contract not to send out for her use a dangerous hair- 
 wash {h). 
 
 (6) But when no duty, irrespective of contract, can be 
 shown, a person who is injured by another's negligence in 
 carrying out a contract has no cause of action. Thus, in 
 Le Lievre v. Gould (l), mortgagees lent money by instal- 
 ments to a builder, on the faith of certificates negligently 
 granted by the defendant, who w^as a surveyor appointed, 
 not by the mortgagees, but by the builder's vendor. The 
 certificates were inaccurate, and the mortgagees thereby 
 suffered loss, for which they claimed compensation from 
 the defendant : — Held, that as there was no contractual 
 relation between them, the defendant owed no duty to the 
 plaintiffs, and the action could not be maintainfed. It was 
 urged that a certificate carelessly issued was as dangerous 
 as an ill-made gun or a poisonous hair-wash, and that on 
 that ground the defendant was liable ; but the court would 
 not admit the analogy. Of course, however, if the certificate 
 had been fraiidule^it, i.e., issued with intent to deceive the 
 plaintiff, then, independently of any contractual relation, the 
 defendant would have been liable in an action of deceit. 
 
 (7) So, too, when A. built a coach for the Postmaster- 
 General, B. horsed it and hired C. to drive it, the coach 
 
 {j) Langridge v Levy, 4 M. & W. .338. 
 {k) ffeorge v Skinngtoii, L. R. o Ex. 1. 
 (I) [1893] 1 Q. B. 491.
 
 40 Eelation of Conteact and Tort. 
 
 Art. 12. broke down from a defect in its construction, and C. was 
 consequently injured, it was held that A. oivecl no duty to C. 
 apart from contract, therefore C. could not sue A. in tort. 
 Nor, of course, could C. have sued A. in contract, as C. was 
 no party to the contract between A. and B., and A. was no 
 party to the contract between B. and C. {m). 
 
 Art. 13. — Duties gratuitoushj undertalien. 
 
 When a person gratuitously undertakes to per- 
 form any service for another, then although no 
 action will lie for not performing the service 
 (there being no consideration for the promise) 
 yet an action will lie for negligence in the per- 
 formance of it (;/). 
 
 A duty to take care may arise apart from any contract 
 whatever, and for breach of that duty the remedy is an 
 action of tort. 
 
 Illustrations. (1) Thus, in Cogcjs V. Bernard, the defendant gratuitously 
 promised the plaintiff to remove several hogsheads of 
 brandy from one cellar to another, and, in doing so, one 
 of the casks got staved through his gross negligence. 
 Upon these facts it was decided that the defendant was 
 liable ; for although his contract could not have been 
 enforced against him, yet, having once entered upon the 
 performance of it, he thence became liable for all mis- 
 feasance. 
 
 (2) Again, the defendants, the Metropolitan District 
 Eailway Company, had running powers over the South 
 Western Eailway between Hammersmith and the New 
 Eichmond Station of the South Western Company. Above 
 the booking office at the Eichmond station were the words 
 
 (m) Winttrhottom v. Wright, 10 M. & W. 109, folluwecl in Earl v. 
 Lubbock, [1905] 1 K. B. 253. 
 
 (w) Coggs v. Bernard, 1 Sni. L. C. 177.
 
 Duties Gratuitously Undertaken. 41 
 
 " South Western and Metropolitan Booking Office and Art. 13. 
 District Eailway." The plaintiff took from the clerk there 
 employed by the South Western Company a return ticket 
 to and from Hammersmith. The ticket was not headed 
 with the name of either company, but bore on it the words 
 "vid District Eailway." On his return journey from 
 Hammersmith the plaintiff travelled with this ticket in a 
 train belonging to the defendants and under the manage- 
 ment of their servants. The carriage being unsuited for the 
 New Eichmond Station platform, the plaintiff, in alighting, 
 fell and was hurt. He brought an action against the 
 defendants, and the jury found negligence in them : — 
 Held, that having invited or permitted the plaintiff to 
 travel in their train, the defendants were bound to make 
 reasonable provision for his safety ; and that there was 
 evidence of their liability, even assuming the ticket not to 
 have been issued by or for them, but for the South Western 
 Company (o) . 
 
 (3) In Doorman v. Jenkins [])), a keeper of a coffee house 
 gratuitously undertook the custody of money for a customer. 
 It was lost whilst in his care by his negligence. He was 
 held liable in an action for breach of the duty to take care 
 arising from his becoming bailee of the money. 
 
 (4) Where the plaintiff was invited by the defendants' 
 servant to ride on an engine, and he did so for his own 
 convenience, and was injured by the negligence of the 
 defendants' servants, the defendants were held liable ; as 
 by gratuitously undertaking to carry the plaintiff, the defen- 
 dants came under a duty to exercise care, and they were 
 liable in an action of tort for breach of that duty (g). 
 
 (o) Foidlt-tY. Midropolitan District Rail. Co., .5 C. P. D. 157. 
 
 (p) 2 A. & E. 256. 
 
 (q) Harris v l\rri/ cU Co., [19031 2 K. B. 219.
 
 ( 42 ) 
 
 CHAPTEE IV. 
 
 VARIATION IN THE GENERAL PRINCIPLE WHERE 
 THE UNAUTHORISED ACT OR OMISSION TAKES 
 PLACE OUTSIDE THE JURISDICTION OF OUR 
 COURTS. 
 
 Akt. 14. — Torts committed Abroad. 
 
 An action will lie in the English Courts for a 
 tort committed outside England, provided : 
 
 (a) It is actionable according to English law 
 
 and may be the subject of either civil 
 or criminal proceedings according to 
 flie law of the country where it was 
 committed (a) ; and 
 
 (b) It is a tort which is not of a purely local 
 
 nature, such as a trespass to, or ouster 
 from, land, or a nuisance affecting here- 
 ditaments. 
 
 Note, that in order to comply with paragraph (a) it is not 
 necessary that the tort should be actionable according to the 
 law of the country where the act was committed, provided 
 that it is not justifiable by that law ; that is to say, that it is 
 an act in respect of which civil or criminal proceedings may 
 be taken in that country, 
 lllusirations. (1) Thus, in the leading case of Mostijn v. Fabriijas (b), it 
 was held that an action lay in England against the governor 
 of Minorca for a false imprisonment committed by him in 
 Minorca, the plaintiff being a native Minorquin. 
 
 (2) So actions maybe brought in this country against 
 foreigners for injuries committed on the high seas (c). 
 
 («) Machndo v. FoiiU:% 1 1S!)7J '2 Q. B. -I'M. 
 (h) 1 Sm. L. C. 628. 
 
 (c) Submarine Telajrafth Co. \. Dickson, 15 C. B. (N.s.) 7o9.
 
 Torts Committed Abroad. 43 
 
 (3) On the other hand, wliere there was a colHsion Art. 14. 
 between two ships in Belgian waters, and the owners of one 
 
 of the ships were Hable according to Belgian law, notwith- 
 standing that the Belgian law imposed on them compulsory- 
 pilotage, it was held that no action could be maintained 
 against them in our courts, which recognise the plea of 
 compulsory pilotage as a good answer to an action for 
 collision (d). 
 
 (4) Conversely, where the governor of a colony had com- 
 mitted a tort according to our law, but was, by an act of 
 the Colonial Legislature, discharged from responsibility in 
 the colony, it was held that he could not be sued in 
 England {e). 
 
 (5) So an action will lie in this country for a libel con- 
 tained in a pamphlet in the Portuguese language and 
 pubhshed in Brazil, even though libel be not actionable in 
 Brazil, provided it be not justifiable in Brazil, i.e., it is 
 enough if it be punishable in Brazil (/). 
 
 (6) The English courts have no jurisdiction to entertain 
 an action to recover damages for a trespass to land situate 
 abroad ; injuries to proprietary rights in foreign real estate 
 being outside their jurisdiction (g). 
 
 (7) The case of Morocco Bound, etc. v. Harris (/i), has 
 given rise in some minds to the idea that torts committed 
 abroad cannot be enforced in English courts. In that case, 
 however, the alleged tort was infringement of copyright in 
 Germany. The Enghsh law gave the plaintiffs no copyright 
 in Germany, but only in England, and although the 
 German law gave them copyright, the infringement of that 
 was a tort according to German law but not according to 
 English law. The case, therefore, does not comply with the 
 conditions required by paragraph (a), supra. 
 
 {(l) The Halltij, L. R. 2 P. C. 193, 204 ; and see also The Guy 
 ManneriiKj, 7 P. D. 52, 132 ; and The Awjii.'^fa, 6 Asp. M. C. 58, 161. 
 
 {>') Phillips V. El/re, L. R. 4 Q. B. 225 ; ihid., 1. 
 
 (/) Machado v. Pontes, [1897] 2 Q. B. 231. 
 
 (fir) .See Briti.sh South African Co. v. The. Campanhia de Afo^mbique, 
 [1893] A. C. (if 12, where all the prior cases are examined. 
 
 (h) [1895] 1 Ch. 534.
 
 ( 44 ) 
 
 CHAPTEK Y. 
 
 OF PERSONAL DISABILITY TO SUE AND TO 
 BE SUED FOR TORT. 
 
 Art. 15. — Who viay sue. 
 
 (1) Every person may maintain an action for 
 tort, except an alien enemy, and a convict 
 during his incarceration (a). 
 
 A married woman may sue alone, and any 
 damages recovered are her separate property {b). 
 
 (2) A husband cannot sue his wife for tort, 
 nor a wife her husband, except that a wife niay 
 sue her husband (but not a husband his wife) 
 for the security and protection of her separate 
 property (c). 
 
 (3) A corporation cannot sue for a tort merely 
 affecting its reputation, such as a libel charging 
 the corporation with corrupt practices (d) . 
 
 (4) A child cannot maintain an action for 
 injuries sustained while e)i ventre. sa mere (e). 
 
 (a) 33 & 34 Vict. c. 23, ss. 8, 30. 
 
 (b) 45 & 46 Vict. c. 75, s. 1 ; Beashy v. Romy, [1891] 1 Q. B. 509. 
 
 (c) See PhUlip^ v. Barmt, 1 Q. B. 1). 43(i ; and 4.i & 40 Vict. c. 75, 
 s. 12. 
 
 (d) Mayor of Manchester v. WiWiams, [1S91] 1 Q. B. 94. 
 
 (e) Walker v. Great Northeim Rail. Co. , 28 L. R. h: 69.
 
 Who May be Sued for a Tort. 
 
 45 
 
 Art. 16. 
 
 ^rp^ 16. — Wlio may he sued for a Tort. 
 
 (1) Every individual who commits a tort is 
 liable to be sued, notwithstanding infancy, 
 coverture, or unsoundness of mind ; except 
 (1) the sovereign, (2) foreign sovereigns, and 
 (3) ambassadors of foreign powers (/). But 
 foreign sovereigns and ambassadors can waive 
 their privilege {a). 
 
 (2) A corporation which commits a tort is as 
 Hable to be sued as a private individual would 
 be, if the thing done or omitted is withm the 
 purpose for which the corporation exists; but 
 otherwise the corporation is not liable, and its 
 directors, servants, or other persons who 
 authorise or commit the tort can alone be 
 sued(//). 
 
 (1) Thus, if an infant hires a horse he is liable in an action Iliustrations. 
 of negligence for immoderately riding the horse, for, as i» ^n s. 
 baileerhe is bomid to take care of the horse, and the breach 
 
 of that duty is a tort (i). But he would not be Uable m an 
 action of contract founded on the hiring {j). 
 
 (2) But it may be that extreme youth may be a defence 
 in an action of fraud ; for as fraud depends, not upon acts 
 or omissions simply, but upon acts done or omissions made 
 with intent to injure another, it would seem to follow that 
 extreme youth or lunacy of such a character as iconld 
 negative the existence of such intention would probably be 
 held a good defence {k). 
 
 (3) There is not much authority upon the liability of Lunatics. 
 lunatics for their torts. Lord Kenyon points out in 
 
 (/) See Maqdaltna Go. v. Martin, 28 L. J. Q. B. 310. 
 
 (ij) Duke of Brunswick v. King of Hanorer, 6 Bea. 1. 
 ' {h) Mersey Docks v. Gihhs, L. R. 1 H. L. 93. 
 
 (i) Burnard v. Humiis, U C. B. (^.s.) 45, followed in M alley v. Holt, 
 35 L. T. 631. 
 
 (j) JenniiK/s v. Rundall, 8 T. R. 335. t, n 
 
 (;•) See per Esher, M.R., in Emmens v. Pottle, 16 Q. B. 1). at 
 p. 356.
 
 6 Peesonal Disability to Sue and to be Sued. 
 
 Art. 16. Hay croft v. Creasy (/), the distinction between answering 
 civiliter et criminaliter for acts injurious to others. "In 
 the latter case the maxim appHed actus nqn facit r cum nisi 
 me^s.^.si Lxea, but it was otherwise in civil actions, where 
 the intent was immaterial if the act done were injurious to 
 another."-,' And no doubt a lunatic is generally liable in 
 tort (vi). ■ 
 
 (4) With regard to corporations, of course actions of tort 
 can of necessity only arise for acts or omissions of their 
 servants or directors, and the difficulty in such cases is the 
 same as arises in other cases of the responsibility of a 
 principal for the acts of his agent, \iz., the difficulty of 
 determining whether or not the act or omission complained 
 of was within the scope of the general authority or duty of 
 such servant or director (u). 
 
 It was long doubtful whether a corporation aggregate 
 could be sued in an action of malicious prosecution. It 
 was thought that a corporation, having no mind, could not 
 act maliciously (o). But it is now settled that a corpora- 
 tion may be made liable for malicious prosecution if in 
 instituting the proceedings it is actuated by motives which in 
 an individual would be malice (p). 
 
 (o) ^Yhere, however, a i)uhlic duty is imposed by statute 
 on a corporation, it by no means follows that a private 
 injury, caused to an individual by non-feasance, will give 
 him a right of action against the corporation. Of course, 
 if the statute shows an intention to impose such a liability 
 on the corporation, they will be held liable ; but the mere 
 imposition of a public duty {ex. (jr., to repair roads) does 
 not of itself render the corporation liable to an action for 
 non-performance of the duty. They may be liable to a 
 
 (/) 2 East, p. 104. 
 
 (m) See al.so />e/' Esher, M.R., in Hanlmry v. Ilanhury, 8 T. L. R. 
 at p. 560. 
 
 (?i) See Chapter on Principal and Agent. 
 
 (o) See Lord J5kam\vell's opinion in Ahrxth v. Xorth Eastern Rail. 
 Co., 11 App. Cas. 247. 
 
 (p) Cornford v. Carlton Bank; [1899] 1 (,). B. .392, following 
 Edwards v. Midland Rail Co., 6 Q. B. I). 2S7.
 
 Who May be Sued for a Tort. 47 
 
 prosecution, or to a mandavms, but not to an action for Art. 16. 
 damages (5). 
 
 (6) Trades unions are registered under the Trade Union Trades 
 Acts, 1871 and 1876, are associations of a special kind ^"^''"•'• 
 created by statute and empowered to hold property, -and 
 with limited powers of suing or being sued in contract. 
 \ A trade union may nevertheless be sued in tort in its 
 registered name (r).y 
 
 As to the liability of married women for their torts, see Married 
 post, Chap. VI., Art. 17. women. 
 
 (?) Ilunicipalify of Pktou v. Gddert, [1893] A. C. 524. 
 [1901] r"c ^%l ^"'^' ^°' '■ ^'"''^^""^"'^^ ^"oc^•e<y of Railway Servants,
 
 ( 48 ) 
 
 CHAPTEE YI. 
 
 LIABILITY FOR TORTS COMMITTED BY OTHERS. 
 
 SECTION L— LIABILITY OF HUSBAND FOE 
 TORTS OF WIFE. 
 
 Art. 17. — Wife's ante-nuptial and 'post-nnptial 
 
 Torts. 
 
 (1) A married woman may be sued alone in 
 respect of lier ante-nuptial torts ; but her hus- 
 band is also liable to the extent of the property 
 which he received with her ; and he may be sued 
 either jointly with her or alone {a). 
 
 (2) A married woman may also be sued alone 
 in respect of her post-nuptial torts (&), but her 
 husband is also liable, and may be joined with 
 her as defendant (c). 
 
 Prior to the Married Women's Property Act, 1882, a 
 wife could not be sued alone for a tort. Her husband was 
 necessarily joined as defendant in an action of tort brought 
 against her, as all her property vested in him during 
 coverture, and there was therefore no means of satisfying 
 a judgment obtained against her alone. Since the passing 
 of the Married Women's Property Act, a married woman 
 is capable of holding separate property, and judgment may 
 be had against her to the extent of her separate property, 
 and to that extent the Act provides that she is liable for, 
 
 (a) 45 & 46 Vict. c. 75, ss. Ki — 15. 
 (h) 45 & 46 Vict. c. 75, s. 1. 
 
 (c) Skroka v. Kattenhurq, 17 Q. B. D. 177 \ Enrlr v. Kingscote, [1900], 
 1 Ch. 203
 
 Liability of Husband for Torts of Wife. 49 
 
 and may be sued alone for her torts as if she were a, feme Art. 17. 
 sole. This enactment, however, does not affect the common 
 law liability of a husband for his wife's torts (f/) ; and, 
 consequently, a plaintiff can elect whether he will sue the 
 wife alone, or join her husband as co-defendant with her. 
 The present state of the law is clearly defined by the judg- 
 ment of the Court of Appeal in Beck' v. Pierce (e). A 
 husband is not liable for the torts of his wdfe committed by 
 her w^hilst judicially separated from him (20 & 21 Vict. 
 c. 85, s. 26), but his liability for her torts is not afi'ected by 
 his living apart from her under a voluntary separation ( /'). 
 
 SECTION II.— LIABILITY FOK TOKTS OF 
 AGENTS AND SERVANTS. 
 
 Art. 18. — Qi ti facit per aliimi facit per s e_. 
 
 A person who employs an agent to commit a 
 tort is liable for the act of the agent as fully as 
 if he had himself committed the tort. And the 
 agent is also liable. In tort a person can never 
 excuse himself by saying that he was acting as / 
 the agent of another. Agent and principal are 
 equally liable. 
 
 The principal is not, however, necessarily answerable 
 for every tort of his agent. If the agent is employed to 
 commit a tort the principal is clearly liable. If the agent 
 is employed to do a thing not in itself wrongful, and in the 
 course of doing the thing for which he is employed he commits 
 a tort, the principal's liability depends partly on whether 
 the agent is a servant or an agent who is not a servant, i.e., 
 an independent contractor. 
 
 (d) Seroka v. Kattenbunj, uhi supra. 
 
 [e) 23 Q. B. D. 316. 
 
 (/) Head v. Briscoe, 5 C. & P. 484.
 
 Art. 19. 
 
 Liability for Toets Committed by Others. 
 
 Art. 19. — Batification of Tort committed hy 
 an Agent. 
 
 A tortious act done for another, by a person 
 not assuming to act for himself, but for such 
 other person, though without any precedent 
 authority whatever, becomes the act of the 
 principal if subsequently ratified by him, and, 
 whether it be for his detriment or his advantage, 
 to the same extent as if the same act had been 
 done by his previous authority {g). 
 
 This rule is generally expressed by the maximV' Omnis 
 ratihabitio retrotrahitur , ct mandato priori aqniparatur ,"\/ 
 and is equally applicable to torts and to contracts, li 
 should be observed that the act cannot be ratified when 
 the person doing it does not profess at the time of doing it 
 to be acting on behalf of a principal [li). 
 
 The plaintiff's goods were illegally seized under a 
 warrant of distress handed to a bailiff by the defendants. 
 The plaintiff wrote to the defendants seeking reparation. 
 The defendants replied that their solicitors would accept 
 process of service. The vestry had given no special instruc- 
 tions to the brokers. It was held in the Court of Appeal 
 that there was ample evidence of ratification by the defen- 
 dants, and that they were liable for the wrongful seizure 
 made by the bailiff on their behalf (i). 
 
 Art. 20. — UnautJiorised Delegation hy Agent. 
 
 A master is not liable for the tortious acts 
 of persons to whom his agent has, without 
 authority, delegated his duties. An agent may 
 
 (tj) M7/>o// V. Tiiinman, Man. k (Jr. 242. 
 
 {h) 4 Inst. .317 ; Wilson v. Barker, 4 B. & Ad. 614 ; and judgment of 
 Dallas, C.J., in Hullx. PickerfigUI, 1 B. & B. 28G ; n7/.so?i v. fmnman, 
 6 M. & G. 242 ; and Keiijh/ci/, Max-ited A: Co. v. Dnrant, [1901] A. C. 240. 
 
 (i) Carttr v. Vestry of St. Mary AhhottK, Ktnx'uKjton, G4 J. P. 548.
 
 Unauthorised Delegation by Agent. 51 
 
 have express authority, and in some cases may Art. 20. 
 have impHed authority, to delegate his duties to 
 another, but if without such authority he dele- 
 gates his duties to another, that other does not 
 become the agent of the master. 
 
 (1) Thus, where the driver and coudnctor of an omnibus Illustiatious. 
 authorised a bystander to drive the omnibus (the driver 
 
 havmg been ordered to discontinue driving by a poHceman 
 who thought he was drunlv), and the bystander, whilst 
 driving neghgently, injured the plaintiff, it was held that 
 the defendants were not liable as the bystander was not 
 their servant (k). 
 
 (2) But where the driver of a cart negligently left the 
 cart in custody of a lad whose duty it was to go with the 
 cart to deliver parcels, but had been forbidden to drive, and 
 the lad drove the cart so that it collided with the plaintiff's 
 carriage, the employer of the driver was held liable for the 
 negligence of the driver in leaving the cart in custody of 
 the lad. But the employer would not have been liable for the 
 negligence of the lad, as he was not acting within the scope 
 of his employment, and the driver had no authority to 
 delegate the driving to him (/). 
 
 Such is a brief outline of the law relating to the responsi- 
 bility of masters to third parties for the torts of their 
 servants ; but the learning on the subject is of so technical 
 a character, and the distinctions as to when a servant is, 
 and when he is not, acting within the scope of his employ- 
 ment, or even whether he be a servant at all, are so very 
 refined, and the authorities are so conflicting, that a legal 
 training is often necessary in order that the difference may 
 be distinguished. I shall therefore content myself with the 
 foregoing general rules (which are believed to be accurate 
 so far as they go), leaving to other and larger works on the 
 law of master and servant the task of quoting the numerous 
 cases on the subject, and commenting upon the very subtle 
 distinctions between them. 
 
 (k) airi/lkim V. Twist, [1895] 2 Q. B. 84. 
 
 (I) Engdhart v. Farrant ct Co., [1897 J, 1 Q. B. 240.
 
 52 
 
 Liability foe Torts Committed by Others. 
 
 Art. 21 
 
 Art. 21. — Liability for Contractors and 
 other Agents. 
 
 (1) A principal is liable for the acts of his 
 agent either (a) expressly authorised by him, or 
 (b) done within the scope of his authority, and 
 for the general benefit of his principal. 
 
 (2) A principal is not liable for the collateral 
 negligence of his agent {not being a servant), 
 that is, for a negligent act or omission of the 
 agent which arises incidentally in the course of 
 the performance of the work ; because he never 
 authorised that act or omission. 
 
 (3) But to this rule there are three excep- 
 tions : 
 
 (a) Where the agent is employed to do an act 
 
 unlawful in itself; the principal is liable 
 for the direct consequences of such act, 
 and is also liable for the consequences 
 of the agent's negligence in the course 
 of doing the act (ni). 
 
 (b) If the principal is under an obligation by 
 
 contract or statute to do a particular 
 thing, and he employs an agent to do 
 it, he is liable if the agent neglects to 
 do the thing, or does it improperly. 
 He cannot get rid of his duty by 
 employing an agent (n). 
 
 (c) Where the thing which the agent is em- 
 
 ployed to do will be a nuisance, or is 
 likely in the ordinary course of events 
 
 (m) Ellu V. Sheffield G'a« Co. , 2 K. & B. 767. 
 
 (n) Hall V. Sittinyhonrnt Rail. Co., 6 H. & N. 488.
 
 Liability for Torts of Agents. 53 
 
 to cause damage, unless proper precau- Art. 21. 
 tions are taken, the principal is liable 
 for the neglect of the agent to take 
 those precautions. 
 
 It will be noticed that the liability of one who employs Comment on 
 another to do work for the torts of that other is not go '''^'^^^ ™'''- 
 extensive where the person employed is a contractor as it 
 is where that other is a servant. A master has control of 
 the servant as to the way he does his work, and it is his 
 duty to see that the work is so done as not to cause damage 
 to others — so he is liable for the collateral negligence of the 
 servant. When an independent contractor is employed the 
 principal is only liable for acts which (a) he has expressly 
 authorised, or which (b) are done for the master's benefit 
 and are within the scope of the agent's authority, and so 
 are impliedly authorised. He cannot (except in the cases 
 stated) be held liable for acts done by the contractor or 
 agent for his own benefit or outside the scope of his agency. 
 But a person who is under a duty to do something cannot 
 evade that duty by deputing its performance to another. 
 So if a person is under an obligation to do something and 
 he employs an agent to do it, he is responsible for any 
 neglect of the agent to properly perform that duty. 
 
 So, too, if a person chooses to do something which he 
 •does at his peril, or something which will be dangerous if 
 not properly done, he must see that the person he employs 
 to do the work does it properly. Having authorised the 
 w^ork, he cannot escape responsibility for its being carried 
 out in such a manner as not to be dangerous. 
 
 (1) A railway company was empowered by Act of Parlia- Illustrations, 
 ment to construct a railway bridge over a highway. The ^'^"traotors. 
 company employed a contractor to do the work. A servant 
 of the contractor negligently caused the death of a person 
 passing underneath on the highway by allowing a stone to 
 fall on him. The contractor would no doubt have been 
 liable for the negligence of his servant, but in an action 
 brought by the administratrix of the deceased against the
 
 54 
 
 Liability foe Torts Committed by Othees. 
 
 Art. 21. 
 
 Illustrations 
 of excep- 
 tions. 
 
 railway company the defendants were held not liable for 
 the negligence of the workman, being that of an agent who 
 was not their servant, and merely collateral to the work 
 which he was employed to do (o). 
 
 (2) So where a company contracted with A. to construct 
 a railway, and A. sub-contracted with B. to construct a 
 bridge on it, and B. employed C. to erect a scaffold under 
 a special contract between him and C. ; a passenger injured 
 by the negligent construction of the scaffold could only sue 
 C, and not A., B., or the company ( j;). 
 
 (3) A company, not authorised to interfere with the 
 streets of Sheffield, directed their contractor to open trenches 
 therein ; the contractor's servants in doing so left a heap 
 of stones, over which the plaintiff fell and was injured. 
 Here the defendant company was held liable, as the inter- 
 ference with the streets was in itself an unlawful act (q). 
 
 (4) So where the defendants were authorised, by an Act 
 of Parliament, to construct an opening bridge over a 
 navigable river, a duty was cast upon them to construct it 
 properly and efficiently ; and the plaintiff having suffered 
 loss through a defect in the construction and working of the 
 bridge, it was held that the defendants were liable under 
 exception (b), and could not excuse themselves by throwing 
 the blame on their contractor (r). 
 
 (5) Plaintiff and defendant were owners of tvv^o adjoining 
 houses, plaintiff being entitled to have his house supported 
 by defendant's soil. Defendant employed a contractor to 
 pull down his house, excavate the foundations, and rebuild 
 the house. The contractor undertook the risk of supporting 
 the plaintiff's house as far as might be necessary during the 
 work, and to make good any damage and satisfy any claims 
 arising therefrom. Plaintiff's house was injured in the 
 progress of the work, owing to the means taken by the 
 contractor to support it being insufficient -.—Held, on the 
 
 (o) Beedit v. Loudon and Xorlh Wtstirn Hail. Co., 4 Ex. 244. 
 (p) Kniijht V. Fo.r, 5 Ex. 721. 
 
 (q) Ellis V. Sheffield Gas Con.mmers Co. , 23 L. J. Q. B. 42. 
 (r) See Hole v. Sittin<jl>ounie, etc., 6 H. & N. 488.
 
 Liability for Torts of Agents. 55 
 
 principle above laid down (paragraph 3), that the defendant 
 was liable (s). 
 
 (6) A district council employed a contractor to make up 
 a highway, which was used by the public but was not 
 repairable by the inhabitants at large. In carrying out the 
 work the contractor negligently left on the road a heap of 
 soil unlighted and unprotected. The plaintiff, walking along 
 the road after dark, fell over the heap and was injured. 
 In an action against the district council and the contractor 
 to recover damages, it was held that, as from the nature of 
 the work danger was likely to arise to the public using the 
 i-oad, unless precautions were taken, the negligence of the 
 contractor was not collateral to his employment, and the 
 district council (as well as the contractor) were hable (t). 
 
 (7) Where the defendant maintained a lamp hanging 
 over a highway for his own purposes, it was his duty to 
 maintain it so as not to be dangerous to the public, and 
 when he employed a contractor to repair it, but the con- 
 tractor did his work badly, the defendant was liable for 
 injury caused thereby to a person passing on the highway (u). 
 
 (8) Where a contractor w^as employed to clear and burn 
 the bush on land Ijelonging to the defendants, and he neg- 
 ligently lit a fire on the land and permitted it to spread on 
 to the plaintiff's land, the defendants were held liable, even 
 though the contractor in lighting the fire had disregarded 
 the express stipulations as to the time at which the fire 
 should be lit, on the ground that, having authorised the 
 lighting of the fires, they were bound not only to stipulate 
 that precautions should be taken, but to see that precautions 
 were taken (x). 
 
 {■■<) Bowtr V. Pmte, 1 Q. B. 1). 321, followed in Angus v. Dal/oii, 
 G App. Cas. 740, and HwjMa v. Ptrciml, 8 App. Cas. 443. 
 
 (/) l\mu/ V. Wimbledon Urban District Coinirll, [1S99] 2 Q. B. 72. 
 
 \») Tnrr,/ v. A.-<hton, 1 Q. B. D. 314. 
 
 (.r) Bhirk V. Christchnrch Fimnre Co., [1S94J A. C. 48. 
 
 Art. 21.
 
 (j Liability foe Torts Committed by Others. 
 
 Art. 22. 
 Art. 22. — Increased Liahility wliere tlie Agent 
 
 \ is a Servant. 
 
 (1) A servant is a person employed by another, 
 ' and subject to the commands of that other as to 
 
 the way he shall do his \York. 
 
 (2) A master is liable for the negligence of his 
 servant committed in the course of his employ- 
 ment (i/) . 
 
 (3) A master is liable for the \Yilful torts of his 
 servants committed within the scop e of his_em- 
 ployment, and for the general benefit of the 
 master, even though in fact the master derives no 
 benefit therefrom, and though the tort amounts 
 also to a crime. 
 
 The test to be applied to ascertain ^vhether an agent is 
 or is not a servant is to consider whether the master has 
 complete control of the acts of the agent as to the way he 
 should do them. If he has, the agent is a servant, and 
 the master is liable for the consequences, because he has 
 made himself responsible not only for the act itself but for 
 the manner of doing it. Thus, the relationship of master 
 and servant is in each case a question of fact, depending 
 not on the mode of payment for services, or the time for 
 which the services are engaged, or the nature of those 
 services, or on the power of dismissal (though each of those 
 matters may be taken into consideration), but on the extent 
 of the principal's control over the agent as to the way in 
 which the work is done. And a person who is in the 
 general employment of one man may be the servant of 
 another for a particular purpose, that other having control 
 of him as to the manner in which he carries out his duties 
 in connection with that particular purpose. 
 
 (y) As to the exceptional case of injury done by one servant to 
 another servant working in a common eniplojnient under a common 
 master, see Art 23, post.
 
 Liability for Torts of Servants. 57 
 
 (1) Thus where an owner of ii carriage was suppUed l)y Art. 22, 
 
 a livery stahle keeper with a driver, and the owner of the m^st^ons. 
 carriage was also oioier of the Jior.se and harness, it was ^^ ^„^^.lj,, .„.(. 
 held hy Russell, C.J., that in all the circumstances of the servants, 
 case the owner of the carriage had control of the driver as 
 to the manner of driving, and the driver was his servant (,?). 
 
 (2) But where two ladies, owners of a carriage, lit red 
 horses from a livery stable, and wdth the horses a driver, 
 whom they put into their livery, Init to w4iom they did not 
 pay wages, it was held that the driver was not thsir 
 servant (a). 
 
 (3) So, too, in Bourke v. The White Moss Colliery Co. {h), 
 the defendants were sinking a shaft in their colliery and 
 agreed with one Whittle to do the sinking at so much per 
 yard. The defendants agreed to supply an engine and 
 engineer at the mouth of the shaft. The engineer was 
 employed and paid by the defendants, and was their general 
 servant, but was at the time under the orders and control 
 of Whittle, and it was held that he was, for the particular 
 purpose, the servant not of the defendants but of Whittle, 
 and consequently the defendants were not liable for his 
 negligence. 
 
 (4) And so, when a person who is the general servant of 
 one person is lent to another for a time, and is, during such 
 time, under the control of that other, the person whose 
 general servant he is is not liable for his negligence whilst 
 so employed (c). 
 
 (5) It is held that upon the construction of the Metro- Cuixlriver.s. 
 politan Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86), so 
 
 far as the public is concerned, the proprietor of a hackney 
 carriage is responsible for the acts of the driver whilst 
 plying for hire as if the relationship of master and servant 
 existed between them, although, in fact, no such relation- 
 ship exists, the relationship apart from statute being tiiat 
 
 (-.) Joiif.s V. Srii//ard, [1898] '2 Q. B. 5(1.'). 
 
 {<() (Jiiarmnii v. Ihirmtt, (j M. & W. 4!»i». 
 
 ('-) 2 0. P. I). 205. 
 
 (r) Doiioraii v. Lainy, dr. Liinital, [189.H] 1 (,). IJ. ()2!).
 
 58 Liability for Toets Committed by Othees. 
 
 Art. 22. of bailor and bailee aud not that of master and servant (d). 
 But if the driver is in fact the servant of some person other 
 than the proprietor, that person may also be liable as the 
 
 driver's master (c). 
 
 The tort must ., (6) In Rayncr v. Mitchell (/), it was the duty of the carman 
 in the course ^^ *^® defendant, who was a brewer, to deliver beer to the 
 of the em- customers with the defendant's horse and cart, and on his 
 ^ " ■ return to collect empty casks, for each of which he received 
 a penny. The carman having, without the defendant's per- 
 mission, taken out the horse and cart /or a purpose entirely 
 ofliis oivn, collected some empty casks on his way back, and 
 while thus returning the plaintilT's cab was injured by the 
 carman's negligent driving. Under these circumstances it 
 was held that the defendant was not liable ; and 
 LiNDLEY, J., said : " The question is, whether, under these 
 circumstances, the servant was acting in the course of his 
 employment. In my judgment he was not. It is certain 
 that the servant did not go out in the course of the employ- 
 ment. Does it alter the case, that whilst coming back he 
 picks up the casks of a customer ? I think it does not. 
 He was returning on a purpose of his own, aud he did not 
 convert his own private occupation into the employment of 
 his master, simply by picking up the casks of a customer." 
 
 (7) So again where a master entrusted his servant with 
 his carriage for a given purpose, and the servant drove it for 
 another purpose of his own in a different direction, and in 
 doing so drove over the plaintiff', the master was held not 
 to be responsible, on the ground that the wrong was not 
 committed in the course of his employment (^). But if the 
 servant when going on- his master's business had merely 
 taken a somewhat longer road, such a deviation would not 
 have ])een considered as taking him out of his master's 
 employment (li). 
 
 (d) Venah/e-s v. Smifli. 2 <). B. 1). 21*.) : am] h'/inj v. Loixloii Iinjirored 
 Cab Co., 23 0. B. 1). -Jsl. 
 
 (e) Kttn V. //.//,//, [ISi)4| 1 (,». B. '2!)2. 
 (/) 2C. P. I). .S57. 
 
 ((/) Storey V. Ashtoii, L. It. 4 Q. B. 47(;. 
 
 (h) Mitchell \. Cra-ssinl!',-, 22 L. .J. C. V. Umi.
 
 Liability for Torts of Servants. 
 
 )9 
 
 (S) And where a servant does a kind of work fur which Art. 22. 
 he is not engaged, he is )iot acting within the course of g^.^^^^. ,,f 
 his employment so as to make the master hable for his employmont. 
 negUgence. Thus, when an omnibus conductor drove the / 
 omnibus, and whilst so doing negligently ran into the plain- 
 tiff, it was held that, in the absence of evidence that the 
 conductor was authorised to drive the omnibus, the defen- 
 d-duLS were entitled to judgment (/'). 
 
 . (9) In Baricick v. Emjlish Joint Stock Bank {j), ^^'^ ^"^^^^ 
 defendants were held liable for the fraudulent statements of 
 their manager made for the benefit of the defendants, and 
 in the course of his business, the statements being made 
 in answer to inquiries by the plaintiff and being to the effect 
 that a customer of the bank was a person of financial 
 stability. These statements were untrue to the knowledge 
 of the manager, and were made with intent to deceive- 
 but not for the benefit of the manager. 
 
 (10) ^Yhere an omnibus driver, contrary to the express 
 instructions of his employers, so drove as to obstruct a 
 rival omnibus with a view to increasing the takings of his 
 own. It was held that his employers were hable, as he 
 was acting at the time in the course of his employment, 
 and, as he thought, for their benefit {k). But where a driver 
 to gratify his own spite struck the horses of a rival with 
 his whip, his employers were held not liable (/). In the 
 one case the driver was acting for his employers' benefit ; 
 in the other solely for his own. 
 
 (11) In another case the plaintiffs occupied offices 
 beneath those of the defendant, and in the defendant's 
 offices was a lavatory for his own use exclusively, the use 
 of which was expressly forbidden to the clerks. One of the 
 clerks, nevertheless, used it, and left the water running, 
 whereby the plaintiffs' offices were flooded t—HcW, that the 
 act of the clerk was not within the scope of his authority, 
 and that the defendant was not liable (m). But where the 
 
 (/) Btard V. London Gtntral Omnih>is Co., [HttM.] 2 (,). 1>. .'.Sn. 
 (,/) L. R. 2 Ex. 259. 
 
 y(A-) Limpu>< V. London General Omnil>ii'< Co., 1 H. k ('. .)-i(). 
 (/) Croff V. AUloon, 4 B. & A. 590. 
 (»)) Sferen-'^ v. Woodirnrd, () (i>. R. D- -'^l^-
 
 60 Liability foe Torts Committed by Others. 
 
 Art. 22. clerk was allowed the use of the lavatory, the decision was 
 contra {n). 
 
 Wrongful (12) In Poulton V. London and South Western BaiU 
 
 servants. ^^: (^-)' ^ station master having demanded payment for the 
 carriage of a horse conveyed by the defendants, arrested 
 the plaintiff, and detained him in custody until it was 
 ascertained by telegraph that all was right. TJic railway 
 company had no jMiver whatever to arrest a person for non- 
 payment of carriage, and therefore the station master, in 
 arresting the plaintiff, did an act that was wholly illegal, 
 not in the mode of doing it, but in the doing of it at all. 
 Under these circumstances, the court held that the railway 
 company were not responsible for the act of their station 
 master; and Blackburn, J., said: " In Linipus v. General 
 Omnibus Co., the act done by the driver was within the 
 scope of his authority, though no doubt it was a vrrongful 
 and improper act, and, therefore, his masters were respon- 
 sible for it. In the present case, an act was done In' the 
 station master completely out of the scope of his authority, 
 which there can be no possible ground for supposing the 
 railway company authorised him to do, and a thing which 
 could never be right on the part of the company to do. 
 Having no power themselves, they cannot give the station 
 master any power to do the act." And Mellok, J., said : 
 " If the station master had made a mistake in conmiitting 
 an act which he was authorised to do, I think in that case 
 the company would be liable, because it would be supposed 
 to be done by their E^uthority. Where the station master 
 acts in a manner in which the company themselves would 
 not be authorised to act, and under a mistake or misappre- 
 hension of what the law is, then I think the rule is very 
 different, and I think that is the distinction on which the 
 whole matter turns." 
 
 (13) Again, a tramway company gave to their conductors 
 printed instructions not to give passengers into custody 
 without the authority of an inspector or timekeeper. The 
 conductor of a car detained the plaintiff (a passenger) on a 
 
 («) liitdiHiiKin V. Smith, GU L. T. 708. 
 (0) L. K. :-' (,>. B. 0.34.
 
 Liability for Torts of Servants. 61 
 
 charge of attempting to pass bad money : — Held, in au Art. 22. 
 action of false imprisonment against the company, that they 
 were not hable, notwitiistanding the fact that s. 52 of 
 the Tramways Act, 1870, empowers any servant or officer 
 of a tramway company to detain a passenger attempting to 
 defraud {p). 
 
 (14:) So, again, where a barman wrongfully gave a 
 customer into custody for an alleged attempt to pass bad 
 money, it was held that the master was not liable, as a 
 servant has an implied authority to do what is necessary for 
 the protection of his master's property, but not to arrest 
 persons merely to bring them to justice. The barman had 
 no implied authority to arrest the plaintiff, inasmuch as his 
 master's property was no longer in any danger, and the 
 arrest was made only for the purpose of bringing the 
 supposed offender to justice for an offence which he was 
 supposed to have already committed {q). 
 
 (15) In Goffv. Great Northern Rail. Co. (/•), on the other 
 hand, the act was the arresting a man for the benefit of the 
 company where there was authority to arrest a passenger 
 for non-payment of his fare ; and the court accordingly 
 held, that the policemen who were employed, and the 
 station master, must be assumed to be authorised to take 
 people into custody whom they believed to be committing 
 the act, and that if there was a mistake, it was a mistake 
 within the scope of their authority. 
 
 (16) So, again, in Baylcy v. Manchester, Sheffield rt??f7 Assaults by 
 Lincolnshire Hail. Co. (s), the plaintiff, a passenger on the s^^'^''^"*''^- 
 defendants' line, sustained injuries in consequence of being 
 
 pulled violently out of a railway carriage by one of 
 the defendants' porters, who acted under the erroneous 
 impression that the plaintiff was in the wrong carriage. 
 The defendants' byelaws did not expressly authorise the 
 company's servants to remove any person being in a wrong 
 carriage, or travelling therein without having first paid his 
 
 ip) Char/ex/on X. London Tnimimyx Co., SOW. R. .SG7 ; Ku'ujht v. 
 Mftropolitan Tramways Co., 78 L. T. 227. 
 
 (7) Alimhams v. /ArtA/y?, [1S91] 1 Q. B. 'A6 ; and see //«*/.-o« v. 
 mi/ler, [1901] 1 Q. B. 39(1. 
 
 (/■) 3 K. & E. (572. (.s) L. R. 7 C. P. 415.
 
 02 Liability foe Torts Committed by Others. 
 
 Art. 22. fare aucl taken a ticket, and they even contained certain 
 provisions which implied that the passengers should be 
 treated with consideration ; but, nevertheless, the court 
 considered that the act of the porter iu pulling the plaintiff 
 out of the carriage was an act done in the course of his 
 employment as the defendants' servant. 
 
 In that case Willes, J., says: "A person who puts 
 another in his place to do a class of acts in his absence 
 necessarily leaves him to determine according to the 
 circumstances that arise, when an act of that class is to be 
 done and trusts him for the manner in which it is done ; 
 and consequently he is held answerable for the wrong of the 
 person so entrusted either in the manner of doing such an 
 act or iu doing such an act under circumstances in which it 
 ought not to have been done ; provided that what was done 
 w\as done, not from any caprice of the servant, but in the 
 course of the employment." 
 
 (17) The defendants employed a manager to manage a 
 branch of their business, which was the sale of furniture 
 on the hire-purchase system. The manager sold a piece of 
 furniture to a person living in the plaintiff's house, and on 
 one of the instalments being in arrear he went to the 
 plaintiff's house and removed the furniture. Whilst so 
 doing he assaulted the plaintiff. The jury found that the 
 manager committed the assault in the course of his employ- 
 ment, and it was held that the defendants were liable, the 
 mere fact that the assault was a criminal offence, and not 
 merely a tortious act, not affecting the liability of the 
 defendants for the act of their servant (t). 
 
 (18) But where the plaintiff, a wholesale silversmith, 
 hired a brougham and coachman from the defendant to 
 drive the plaintiff's traveller about London with samples, 
 and the coachman in pursuance of an arrangement made 
 with confederates drove the brougham to a place where the 
 confederates stole the samples, it was held that the defen- 
 dant was not liable for the criminal act of the coachman, as 
 it was not done within the scope of his employment (n). 
 
 (0 Ui/er V. Munday, [IS!).')] 1 Q. B. 7i>i-'. 
 (?() Cheshire v. Bai/^y, [liMl.')] 1 K. B. -J.S:.
 
 Liability for Injuries to Servants. 63 
 
 SECTION III.— LIABILITY TO SEEVANTS FOR 
 INJURIES CAUSED BY FELLOW-SERVANTS. 
 
 In spite of recent legislation, the liability of a master to 
 recompense his servant for an injury resulting from the 
 negligence of a fellow-servant, differs materially from his 
 liability to a third party for a similar injury, by reason of 
 the common-huv rule that a master is not so liable where 
 the injurer and the injured are the servants of a common 
 master in a common employment, and the injury was 
 inflicted in the course of that employment. 
 
 This rule, known as the doctrine of common employment, 
 was founded on the idea that the servant takes all the 
 risks incident to his employment as part of the contract 
 of service. With regard to servants generally it still exists, 
 but with regard to certain classes of servants Parliament 
 has of late years made large exceptions to it (1) by the 
 Employers' Liability Act, 1880, and (2) by the Work- 
 men's Compensation Acts, 1897 and 1900. The first makes 
 considerable alterations in the common law ; but it only 
 applies to a limited class of workmen, and to a limited class 
 of negligent acts. The second also only applies to certain 
 classes of servants, to whom it gives compensation for 
 accidents, whether arising out of the fault of a fellow - 
 servant or not. In other words, it gives to servants to 
 whom it applies a right to compensation quite independent 
 of any tort whatever. Its consideration, therefore, does 
 not fall strictly within the scope of this work. The Act of 
 1880, however, is founded on a tort by a fellow-servant, 
 and therefore the student should first consider the common 
 law liability of a master towards his servant, and tlieu he 
 may with advantage examine how far these rules are 
 modified by the temporary statute above referred to.
 
 64 Liability for Torts Committed by Other;?. 
 
 Art 23. 
 (1) Common Law Liability. 
 
 \ Art. 23. — General Immunitii. 
 
 j (1) A master is not liable to his servant for 
 
 I damage resulting from the negligence or unskil- 
 fulness of his fellow-servant in the course of 
 I their common employment. 
 
 But a master who is personally negligent is 
 liable to his servant for damage resulting from 
 such negligence ; and such negligence may 
 consist in — 
 
 (a) employing another servant knowing him 
 to be incompetent or without making 
 proper enquiries as to his competence ( r); 
 
 (b) retaining in his employment Avhom he 
 knows to be habitually negligent (/6') ; 
 
 (c) allowing the premises, plant or machinery 
 to be in a dangerous condition, when 
 he knew or might have known they 
 were dangerous {x). 
 
 (2) Common employment does not necessarily 
 imply that both servants should be engaged in 
 the same or even similar acts, so long as the risk 
 of 'injury from the one is so much a natural and 
 necessary consequence of the employment which 
 the other accepts, that it must be included in 
 
 \ the risks which have to be considered in his 
 
 \ wages iy). 
 
 Explanation The rule was first established \n Priestley \. Foicler (z). 
 of rule. j,^ ^.j-jg^^ gg^gg ^ butcher's man was ordered to deliver meat 
 
 (v) Tarrant v. Wehh, 18 C. B. 797. 
 
 {w) See Senior v. War{l, 28 L. J. Q. 15. 139. 
 
 (x) WiUiam,^ v. Birmin</ham Battiry Co., [1809] 2 Q. B. 8.S8. 
 /(y) Morqan v. Va!e of Neath Hail. Co., L. K. 1 Q. B. 149 ; All<„ v. 
 New Gas Co., 1 Ex. 1). 251. 
 
 (2) (1837), 3 M. & W. 1.
 
 Liability fok Injukies to Servants. (j5 
 
 from a van. The van was overloaded by the negUgence Art. 23. 
 of a fellow servant, in consequence of which it broke down 
 and the butcher's man was hurt. The master was held not 
 liable. 
 
 It was furtlier established in Hutchinson v. York, Ncio- 
 castlc and Benvick Bail. Co. {a), in which it was held that 
 where a servant of a railway company in discharge of his 
 duty as such was proceeding in a train under the guidance 
 of others of their servants through whose negligence a 
 collision took place and he was killed, his personal repre- 
 sentatives had no cause of action. 
 
 (1) The driver and guard of a stage-coach ; the steersman Illustrations, 
 and rowers of a boat ; the man who draws the red-hot iron pu!^nJenV"'" 
 from the forge, and the man who hammers it into shape ; the 
 
 person who lets down into, or draws up from, a pit the 
 miners working therein, and the miners themselves : all 
 these are fellow-labourers within the meaning of the 
 doctrine (h) ; and so are the captain of a ship and the 
 sailors employed under him (c). The real test seems to 
 be, whether they are engaged in the same pursuit. 
 
 (2) In Morgan v. Vale of Neatli Bail. Co. (d), the plaintiff 
 was in the employ of a railway company as a carpenter, to 
 do any carpenter's work for the general purposes of the 
 company. He was standing on a scaffolding at work on 
 a shed close to the line of railway, and some porters in the 
 service of the company carelessly shifted an engine on a 
 turntable, so that it struck a ladder supporting the 
 scaffold, by which means the plaintift' was thrown to the 
 ground and injured. It was held, however, that he could 
 not recover against the company ; on the ground, that 
 whenever an employment in the service of a railway com- 
 pany is such as necessarily to bring the person accepting 
 it into contact with the traffic of the line, risk of injury 
 from the carelessness of those managing that traffic is one 
 
 (a) (1850), 5 Ex. .S4.S. 
 
 (/') Bartoiis-hi/l Coal Co. v. Rdd, 4 Jur. (n.s. ) 7G~. 
 
 (c) Hedltij V. Pinkiinj Co., [1S92] 2 g. B. r)S. 
 
 (d) L. R."l Q. B. 149.
 
 ^j(3 Liability for Torts Committed by Others. 
 
 Art. 23. 
 
 of the risks necessarily aucl naturally incident to that 
 employment (c). 
 
 (3) And again, in Tunney v. Midland Bail. Co. (/), the 
 plaintiff was employed by a railway company as a labom-er, 
 to assist in loading what is called a " pick-up train," with 
 materials left by platelayers and others upon the line. One 
 of the terms of his engagement was that he should be carried 
 by the train from Birmingham (where he resided and whence 
 the train started) to the spot at which his work for the day 
 was to be done, and be brought back to Birmingham at the 
 end of each day. x\she was returning to Birmingham after 
 his day's work was done, the train by which he was 
 travelling came into collision with another train, through 
 the negligence of the guard who had charge of it, and the 
 plaintiff was injured. The plaintiff accordingly sued the 
 company ; but the court held, that inasmuch as the plaintiff' 
 was being carried, not as a passenger, but in the course of 
 his contract of service, there was nothing to take the case 
 out of the ordinary rule, which exempts a master from 
 responsibility for an injury to a servant through the negli- 
 gence of a fellow -servant, when both are acting in pursuance 
 of a common employment. 
 
 (4) So, again, in Feltham v. England (g), the defendant 
 was a maker of locomotive engines, and the plaintiff was in 
 his employ. An engine was being hoisted, for the purpose 
 of being carried away, by a travelling crane moving on a 
 tramway resting on beams of wood, supported by piers of 
 brickwork. The piers had been recently repaired, and the 
 brickwork w^as fresh. The defendant retained the general 
 control of the establishment, but was not present. His 
 foreman or manager directed the crane to be moved, having, 
 just before, ordered the plaintiff to get on the engine to 
 clean it. The plaintiff' having got on to the engine, the 
 piers gave way, the engine fell, and the plaintiff was injured. 
 Here it was held that the fact that the servant who was 
 guilty of negligence was a servant of superior authority, 
 
 ((-) See Lnrr// v. //o>n//, 1 C. V. I). 101. 
 
 (/■) L. K. 1 C. P. --nil. (.7) L. R. 2 Q. B. IV.i.
 
 Liability for Injukies to Sei;vants. 67 
 
 whose lawful directions the other was bound to obey, was Art. 23. 
 immaterial ; and that as there was no evidence of personal 
 negligence on the part of the defendant, and nothing to 
 show that he had employed unskilful or incompetent persons 
 to build the piers, he was not Vmhle to the plaintiff. 
 
 (5) But when a collision occurred between two steam- 
 ships belonging to the same owners, it was held that the 
 crew of ship A. w-ere not in common employment w^ith 
 the crew of ship B. (although employed by the same 
 masters), so as to protect the owners from liability to the 
 crew of ship A. for the negligence of their servants, the crew 
 of shipB.(/0. 
 
 (6) Where one of two railway companies has the user of Coinmon 
 the other's station, but not the control of its servants 
 employed on such station, one of whom is injured by the 
 negligence of a servant of the company having such right of 
 
 user, the rule does not apply, for the men though in common 
 employment are not in the employment of a common 
 master (/). And it may be laid down broadly, that the 
 defence of common employment is not available unless the 
 plaintiff was, at the time of the injury, in the defendant's 
 actual employment, and the relationship of master and 
 servant subsisted between them {j). 
 
 (7) And so the rule does not apply where one servant is 
 the servant of a contractor, and the other is the servant of 
 the person who employs the contractor; for the servant 
 of the contractor is not the servant of the contractor's 
 employerVor where the person injured is a servant of one 
 contractor,* and the person by whose negligence he is 
 injured is the servant of another contractor (/v). It must, 
 however, be borne in mind, that it is sometimes a question 
 of difficulty whether a person holds the position of a 
 contractor, or of a foreman in charge of a gang of workmen ; 
 
 (/() Tht Pttrtl, [1893] P. 3-20. 
 
 (/) Warl'urtoiiv. G'naf We.tteni J'ai/. Co., L. R. 2 Ex. 30. 
 
 (./) Cnincron v. Xij-strom, [1893] A. C. 308. 
 
 (/•) Johnson v. Lindmij, [1891] A. C. 371.
 
 68 
 
 Liability for Torts Committed by Others. 
 
 Art. 23. 
 
 Personal 
 negligence 
 of master. 
 
 \ 
 
 Doctrine of 
 volenti non 
 fftlnjuruT. 
 
 aud that iu the latter case the rule as to fellow-servants 
 applies {I). 
 
 (8) In all cases (not coming under the Employers' Liability 
 Act) where the servant sues the master for personal negli- 
 gence, he must prove that the master knew or ought to have 
 known of the danger [m), or had not taken reasonable care to 
 provide proper appliances aud to maintain them in a proper 
 condition («). In Mellors v. Shaw (o), the defendants were 
 owners of a coal mine, and the plaintiff was employed by 
 them as a collier in the mine, and, in the course of his 
 employment, it was necessary for him to descend and 
 ascend through a shaft constructed by them. By the 
 defendants' negligence, the shaft was constructed unsafely, 
 and was, by reason of not being sufficiently lined or cased, 
 in a dangerous condition. By reason of this, and also b}' 
 reason of no suflficient or proper apparatus having been 
 provided by the defendants to protect their miners from the 
 unsafe state of the shaft, a stone fell from the side of the 
 shaft on to the plaintiff's head, and he was dangerously 
 wounded. One of the defendants was manager of the 
 mine, and it was worked under his personal superintendence, 
 and the plaintiff was not aware of the state of the shaft. 
 On this state of facts the defendants were held liable. 
 
 (9) So, where a master ordered a servant to take a bag of 
 corn up a ladder which the master knew, and the servant 
 did not know, to be unsafe, and the ladder broke, and the 
 servant was injured, the master was held liable [p). 
 
 (10) But where a servant with a full appreciation of the 
 risk which he is running, assents to accept the risk, either 
 expressly or impliedly, he cannot recover ; for volenti non 
 fit injuria. 
 
 But the defence of volenti non fit injuria is somewhat 
 ditiicult of application. Lord Esher, M.E., iu the case of 
 
 (/) Charlt.s X. Tuylor, 8 C. F. D. 492. 
 
 Oh) (jriffilh-f v. London and S/. Katharine Docls Co., 1.3 Q. B. 1). 
 •25<). 
 ' (n) Per Lord Hkksi'iiki. in Sniiil, v. lUibr, |1S91] A. C. at p. 362. 
 
 (0) 30 L. J. Q. B. 333. 
 
 (p) Williavis V. Clowjh, 3 H. & X. 2.J8.
 
 Liability for Injuries to Servants. 69 
 
 Yarinonth v. France {q), stated the rule in the following Art. 23. 
 words: "It seems to me to amount to this, that mere 
 knowledge of the danger will not do ; there must be an 
 assent on the part of the workman to accept the risk with a 
 full appreciation of its extent, to bring the workman within 
 the maxim Volenti non fit injurid. If so, that is a question 
 of fact." And Lindley, L.J., added: "A workman who 
 never in fact engaged to incur a particular danger, but who 
 finds himself exposed to it, and complains of it, cannot, in 
 my opinion, be held as a matter of law to have impliedly 
 agreed to incur that danger, or to have voluntarily incurred 
 it, because he does not refuse to face it. ... If nothing 
 more is proved than that the workman saw the danger, and 
 reported it, but on being told to go on went on as before, in 
 order to avoid dismissal, a jury may, in my opinion, properly 
 find that he had not agreed to take the risk, and had not acted 
 voluntarily in the sense of having taken the risk upon him- 
 self. Fear of dismissal, rather than voluntary action, might 
 properly be inferred." 
 
 (11) So where a workman in the course of his employ- 
 ment slipped descending from an elevated tramway, and 
 the jury found that the employers had not e>iercised due 
 care to have the tramway in a safe condition, and that the 
 deceased had the same means as the defendants of knowing, 
 and did know, that it was dangerous to descend without a 
 ladder, but did not find that the deceased had nndertakcn the 
 risk of descending from the tramway without a ladder, it 
 was held that the plaintiff (widow of the deceased) was 
 entitled to judgment (r). 
 
 (12) So, too, when a workman, engaged in an employment 
 not in itself dangerous, is exposed to danger arising from 
 an operation in another department over which he has no 
 control, the mere fact that he undertakes or continues in 
 such employment with full knowledge and understanding 
 of the danger is not conclusive to show that he has volun- 
 tarily accepted the risk (s). 
 
 (<]) 19 Q. B. 1). (547. 
 
 (*•) Wi/Zirum V. liirmiiKjham, etc. Co., [1899] 2 Q. 15. lil^S. 
 ^ {■■') Smifli V. Baker cL- Sons, [1891] 1 A. C. 32.3.
 
 70 Liability for Torts Committed by Others. 
 
 Art. 24. 
 
 Art. 24. — Volunteer Servants. 
 
 If a stranger invited by a servant to assist him 
 in his work, or who volunteers to assist him in 
 his work, is, while giving such assistance, injured 
 by the negligence of another servant of the same 
 master, he is considered to be a servant jjj'o 
 tempore^ and no action will lie against the 
 master, unless (perhaps) he were guilty of 
 personal negligence or breach of duty, or the 
 servants were not competent persons. 
 
 The reason of this rule is obvious, for the volunteer, by 
 aiding the servant, is simply of his own accord placing 
 himself in the position of a servant, and that without the 
 consent or request of the master. The latter cannot there- 
 fore be fairly called upon to recompense him for the result 
 of his officiousness. 
 
 Thus, where the servants of a railway company were 
 turning a truck on a turntable, and a person not in the 
 employ of the company volunteered to assist them, and, 
 whilst so engaged, other servants of the company negli- 
 gently propelled a locomotive against, and so killed, the 
 volunteer, and the servants of the company w-ere of compe- 
 tent skill, and the company did not authorise the negligence, 
 it was held that the company was not liable {t). 
 
 Exception. Where a person aids the servants of another, with such 
 
 other's consent or acquiescence, and not as a mere volunteer, 
 but for the purpose of expediting some business of his own, 
 he is not considered to be in a position of a servant pro 
 tempore {u). 
 
 if) Deggy. Mi'llniid RnU. Co., 1 H. i<c X. 773: Pott'r v. Faulkner, 
 1 B. & S. 800. 
 
 (a) Wright \. London and Xorth Wt-ttrn Ruil. Co., 1 Q. B. I). 2.V2.
 
 Liability for Injuries to Servants. 71 
 
 Art. 25. 
 (2) Under Employers' Liability Act, 1880 (^). 
 
 Art. 25. — Epitome of Act. 
 
 (1) In the case of railway servants, labourers, 
 husbandmen, journeymen, artificers, handicrafts- 
 men, miners, and other persons engaged in 
 manual labour and not being domestic or menial 
 servants, an employer cannot set up the defence 
 of common employment in any case where the 
 injury complained of is due to any of the following 
 causes, viz. : 
 
 (a) A defect in the condition of the ways, 
 
 works, machinery, or plant connected 
 with or used in the business of the 
 employer, caused, undiscovered, or un- 
 remedied by the negligence of the 
 employer, or of some person entrusted 
 by him with the duty of seeing that the 
 w^ays, works, machinery or plant were 
 in proper condition. 
 
 (b) The negligence of a fellow-servant whose 
 
 principal duty was superintendence, 
 while superintending, or the negligence 
 of a person in the employment of the 
 master to whose orders the servant at 
 the time of the injury was bound to 
 conform and did conform. 
 
 (c) An act or omission of a fellow-servant 
 
 consequent on an improper or defective 
 byelaw (not approved by a Government 
 department), or consequent on an im- 
 proper or defective instruction of the 
 master or his delegate. 
 
 {x) A temporary Act renewed from year to year In- the Expiring 
 Laws Continuance Acts.
 
 72 Liability foe Torts Committed by Others. 
 
 Art. 25. (cl) The negligence of a fello^v-servant having 
 ' the charge or control of any signal- 
 
 points, locomotive-engine, or train upon 
 a railway. 
 
 (•2) The injured servant, or his representatives, 
 must give notice of his claim to the employer 
 within six weeks of the accident, unless, in case 
 of death, the judge thinks there was reasonable 
 excuse for not giving it. 
 
 (3) The action must be commenced by the 
 injured servant within six months, or by his 
 personal representatives (if he is killed) within 
 twelve months. 
 
 (4) The master may rely, by way of defence, 
 on contributory negligence, and on the maxim 
 volenti nou fit injurid {ij) ; and also on any con- 
 tract by which the workman has contracted 
 himself out of the iVct {a). 
 
 (5) The action must be brought in the County 
 Court, but is removable, under very exceptional 
 circumstances, to the High Court (/;). 
 
 (6) The damages are limited to three years' 
 average earnings (c). 
 
 Class of It will be perceived that this Act applies only to a limited 
 
 servants to d^gg of employees. Thus, a crrocer's assistant, injured 
 which the ^ •' . ° , . 
 
 Act applies, while lifting a heavy weight, is not a person engaged in 
 
 manual labour within the meaning of the Act (d) ; nor is 
 
 the driver of a tramcar {c) ; nor an omnibus conductor (/). 
 
 (;/) Thomas v. (Juartermaine, 18 Q. B. D. 685. 
 
 (a) Grifitlis V. Earl of Dudhy, 9 Q. B. D. ,357. 
 
 {h) See Munday v. Thame's, etc. Co., 10 Q. B. D. 59. 
 
 (c) See Borlkk \.JIead, 34 W. R. 102. 
 
 {d) Bou7id V. Lawrence, [1892] 1 Q. B. 206. 
 
 (e) Cook V. JVorth Mctropolilan Tramivays Co., 18 Q. B. D. 683. 
 
 {/■) Morgan v. London General Omnihtui Co., 13 Q. B. D. 832.
 
 Employers' Liability Act. 73 
 
 It will be perceived that the mere fact of a defect in, or Art. 25. 
 
 unfitness of, plant, does not render the master liable, unless r> f "I 
 
 ' r- ' ' Detect or 
 
 it arose frovi or had not been discovered or remedied oioing unfitness in 
 to the negligence of the employer or the negligence of a ^^y^' ^oi"ks. 
 servant whose duty it is to see to the condition thereof. 
 Thus, the mere fact that a machine is dangerous, does not 
 render the master liable for an accident, unless the danger i 
 
 arises from some defect in or unfitness of it for its pur- x / 
 
 pose (;/). The employer must, however, use all due means N( 
 
 to diminish the danger [h) ; and if he omits to do so, he 
 will be guilty of negligence which, coupled with the dan- 
 gerous character of the machine, will be construed to render 
 the latter defective (i), " Ways " means not rights of way, 
 but the material thing walked upon (A.'). "Works" mean 
 works already completed, and not works in process of 
 construction (/). 
 
 It may be mentioned that the word " plant " includes Plant. - 
 live stock, such as a vicious horse {;m) ; and a ship [n). 
 
 Where the plaintiff relies on the negligence being that of Negligence 
 a person entrusted with superintendence, the latter must °'^ superin- 
 be a genuine superintendent, and not a mere fellow-worker 
 whose part in the joint labour necessitates his giving direc- 
 tions when to start or stop machinery (o) ; nor one who is 
 a' mere mouthpiece to carry the orders of the master himself 
 to the other workers [p). But, on the other hand, where a 
 genuine superintendent voluntarily assists in manual labour, 
 that fact renders the master none the less liable for his 
 negligence [q). A boy going about as mate to a carman 
 
 (.7) Walsh V. Whitehy, 21 Q. B. D. 371. 
 
 (A) See Heske v. Sanmelson, 12 Q. B. D. 30 ; Pa/(-'j v. Garudt, 
 16 ihkl. 52 ; and Gripps v. Judge, 13 ibid. 583. 
 
 (0 Morrjan v. Hufchins, .38 W. R. 412. 
 
 (k) See McGiffen v. Palmer's Shipbuilding Co., Id Q. B. D. 5. 
 
 '(l) Howe V. Finch, 17 Q. B. D. 187. 
 
 (w) Yannouth v. France, 19 Q. B. 1). 647. 
 
 (h.) Carter v. Clarke, 78 L. T. 76. 
 
 (o) Shaffers Y. General Steam Narigation Co., 10 Q. B. D. 356 ; ami 
 Kellard v. liooke, 21 ibid. 367 "- 
 
 (p) Siiowden v. Bayixs, 25 Q. B. D. 193. 
 
 {<l) Osborne v. Jackson, 11 Q. B. 1). 61!).
 
 74 
 
 Liability for Torts Committed by Others. 
 
 Art. 25. 
 
 Negligence 
 of railw<ay 
 servants 
 having 
 management 
 of points, 
 signals, loco- 
 motives, and 
 trains. 
 
 Notice of 
 claim. 
 
 '\ 
 
 may sue in respect of the latter's carelessness, as, i)rimd 
 facie, he is under his orders (r). To succeed under the 
 latter part of this sub-section, the plaintiff must prove that 
 there was negligence of a person in the employ of the 
 defendant, to whose orders the plaintiff was bound to con- 
 form ; and that his injuries resulted from his having in 
 fact conformed to those orders (s). 
 
 A person employed to shunt trucks by means of an 
 hydraulic capstan, of which he had the management, may 
 be a person having control of a train on a railway within 
 the meaning of the Act, so as to render the railway com- 
 pany liable for his negligence {t) ; so may a fireman whose 
 duty it was to uncouple some trucks from a train, and 
 scotch them to prevent them from running down an 
 incline {u). But, on the other hand, a person whose duty 
 it is to oil, clean, and adjust points, and signal wires, and 
 apparatus, is not a person who has the charge or control of 
 points or signals within the meaning of the Act(j). The 
 word "railway" is not confined to the railways of regular 
 railway companies, but extends to temporary railways laid 
 down by a contractor for the purpose of constructing 
 works {y). 
 
 The contents and form of this notice are matters rather 
 of procedure than of law ; but for the convenience of the 
 practitioner, it may be stated, that it should be in writing {z), 
 and should state on the face of it the name and address 
 of the injured servant, and the date and cause of the 
 injury [a). It should be served by delivering it at, or 
 sending it in a registered letter to, the place of business 
 or residence of the employer. It need not, however, be 
 technically accurate {h). 
 
 . (/•) Mill ward v. MnUaml Rail. Co., 14 Q. B. D. 68. 
 
 (.s) .See Wild v. Wny<jood, [1S92] I Q. B. 78.3. 
 
 (0 Cox V. Great Western Bail. Co., 9 Q. B. \m. 
 
 (u) McCord V. Cammell, [1896] A. C. 57. 
 
 {x) Gihb.s V. Great Western Bail. Co., 12 Q. B. D. 208. 
 
 (y) Doughty v. Firbank, 10 Q. B. D. 358. 
 
 (z) Moylt V. Jenkins, 8 Q. B. D. US. 
 
 (ft) Keen v. Mill null Docks, 8 Q. B. 1). 482. 
 
 (J)) Stone V. Ilyde, 9 Q. B. 1). 76 ; and .see also Previdi v. Gatli, 
 36 W. R. 670.
 
 Liability of Partners for Each Other's Torts. 75 
 
 Art 25 
 SECTION IV.— LIABILITY OF PAETNEES FOE __ ' 
 
 EACH OTHEE'S TOETS. 
 
 The liability of partners for each other's torts rests on 
 precisely the same principles as the liability of a pi'incipal 
 for the act of his agent, inasmuch as each partner is the 
 agent of his co-partners in relation to the conduct of the 
 partnership business. With regard to partnership, how- 
 ever, the law has now been codified by ss. 10, 11 of the 
 Partnership Act, 1890, in the following words : 
 
 Art. le.—Statiitory Bide. 
 
 (1) "Where, by any wrono-fiil act or omission Partnership 
 
 £ L "^ i.- • i.1 T ^p Act, 1890, 
 
 01 any partner acting m trie ordinary course oi ^ ^q 
 the business of the iirm, or with the authority 
 of his co-partners, loss or injury is caused to 
 any person not being a partner in the firm, or 
 any penalty is incurred, the firm is liable there- 
 for to the same extent as the partner so acting 
 or omitting to act." 
 
 (2) " In the follo\Ying cases, viz. : Section ii. 
 
 " (a) Where one partner acting within the 
 scope of his apparent authority receives 
 the money or property of a third person 
 and misapplies it ; and 
 
 " (b) Where a firm in the course of its busi- 
 ness receives money or property of a 
 third person, and the money or property 
 so received is misapplied by one or 
 more of the partners while it is in the 
 custody of the firm ; 
 "the firm is liable to make good the loss." 
 
 (3) When the firm is liable, the individual Section 12. 
 partners are jointly and severally liable. Liabiiit 
 
 It will be perceived that s. 10 relates to ordinary torts, ^'.'V ^"''t^ 
 
 ^ •' ' otlier than 
 
 and s. 11 to specific torts in the nature of fraudulent mis- fraudulent 
 appropriations of pi-operty. With regard to the torts ""fj^^^y^g"
 
 76 
 
 Liability for Torts Committed by Others. 
 
 Illustrations. 
 
 Negligence 
 of pro- 
 fessional 
 men. 
 
 Malicious 
 prosecution. 
 
 Art. 26. referred to in s. 10, in order to render a firm liable, the tort 
 must be a wrongful act or omission of a partner committed 
 or made either (1) with the authority of his co-partners, 
 or (2) in the ordinary course of the firm's business. If, 
 therefore, it be committed or made without the actual 
 authority of the co-partners, and outside the scope of the 
 partner's ostensible authority, the firm will not be liable any 
 more than it would .be for a contract entered into under 
 similar circumstances. 
 
 (1) Thus a firm of solicitors would be liable for the 
 professional negligence and unskilfulness of one of the 
 partners (c). Similarly, a firm of surgeons would be liable 
 for the unskilful treatment of a patient by a member of 
 the firm. So, a firm of engineers would be liable for the 
 negligence of a partner in the design or construction of 
 works. 
 
 (2) On the other hand, where a partner wrongfully 
 commences a malicious prosecution for an alleged theft 
 of the partnership property, another partner will not be 
 liable unless he expressly authorises the tort ; for such 
 a prosecution is outside the ostensible authority of a 
 partner, as it has nothing to do with the carrying on the 
 business of the firm in the ordinary way (d). Indeed, it is 
 difficult to imagine a case in which (without express 
 authority, or, what is the same thing, subsequent ratifica- 
 tion) a firm would be liable for the violent acts of a member 
 against the person or liberty of a third party. 
 
 Defamation. (3) Partners in certain firms may, however, be liable for 
 torts to the reputation committed by a partner who has no 
 actual authority. Thus, a firm of newspaper proprietors 
 would be liable for a libel inserted by an editor partner. 
 So, a firm of company promoters would be liable for a 
 fraudulent prospectus issued in the course of business by an 
 individual partner. In all these cases the inquiry is simply 
 whether the wrongful act or omission was done or made in 
 the course of the partner's duty as such, or outside it. 
 
 (c) Bh/th V. Fhvhi<it<, [ISSIII 1 Ch. :m ; Mursk v. Joseph, [1897] 
 1 Ch. 213. 
 
 [d) Arhnrki, v. Taylor, 2 1). P. C. 1(>0.
 
 Liability of Partners for Each Other's Torts. 77 
 
 (4) There is one tort from which the firm is specially Art. 26. 
 exempted from liabiHty by statute (viz., 9 Geo. 4, c. 14, 
 
 s. 6), by which it is enacted that the firm is not to be hable tmarantees. 
 for false and fraudulent representation as to the chai-acter or 
 solvency of any person, unless the representation is in 
 writing signed by all the partners. The signature of the 
 firm's name is insufficient even although all the partners 
 are privy to the misrepresentation (e). 
 
 (5) With regard to the special torts referred to in s. 11 of I-iability for 
 the Partnership Act, viz., the misapplication of money or u^igappro- 
 property by a member of the firm, the liability arises in two priations, 
 cases, viz., (1) where a partner acting within the scope of ,j.j^gj, 
 
 his apparent authority receives the money and misapplies receives the 
 
 it ; and (2) where the firm receives the money in the course 
 
 of its business and one or more of the partners misapplies 
 
 it. Questions under the first part of s. 11 mostly occur 
 
 in the case of solicitors and bankers, and the question 
 
 almost always resolves itself into this : Was the acceptance 
 
 of the money or property by the defaulting partner within 
 
 the scope of his apparent authority or not ? It is obviously 
 
 impossible to give any general rule by which such a 
 
 question can be solved, and most of the reported cases 
 
 really turn on evidence of partnership usage tending to 
 
 prove actual as distinguished from ostensible authority, and 
 
 therefore decide no general principle of law at all (/). It 
 
 has, however, been held that the receipt of money by one 
 
 member of a firm of solicitors, professedly on behalf of the 
 
 firm for the general purpose of investing it as soon as a 
 
 good security can be found, is not an act within the scope 
 
 of the ordinary business of a solicitor, and that therefore, 
 
 in the absence of actual authority, the other partners are 
 
 not liable for its misappropriation (g). But, on the other 
 
 hand, the receipt of money by a solicitor to be invested on a 
 
 specified mortgage, or to be applied in the settlement of 
 
 the affairs of the client, is within the scope of his ostensible 
 
 (e) Sici/t V. Jewxhury, L. R. 9 Q. B. 301. 
 
 {/) Cf. CleMther v. Twisden, 28 Ch. D. 340, and Bhodts v. Monks, 
 [1895] 1 Ch. 236. 
 
 ((j) Harman v. Johnson, 2 El. & Bl. Gl. )
 
 78 Liability foe Toets Committed by Othees. 
 
 Art. 26. authority so as to render bis partners liable if be rais- 
 applies it (h). 
 
 Liability (6) Witb regard to tbe second part of s. 11, vix., tbe ease 
 
 where the where a firm (and not merely an individual partner) receives 
 
 hrm receives ^ "^ . ,• t i 
 
 and one money or property, and it is afterwards misapplied by one 
 
 partner mis- q^. ^^-^q^q of tbe partners, no question of partnersbip 
 appropriates. ^ -^ • t i 
 
 autbority to receive tbe property can arise. In such cases 
 
 tbe only question is whetber it bas been misapplied by 
 a partner luhile it reinams in the custody of the firm. Tbus, 
 wbere a firm of solicitors accepts money from a client to be 
 invested on a specific mortgage, and it is so invested, tbe 
 subsequent fraud of one of tbe partners, wbo induces tbe 
 mortgagor to repay tbe money to bim and tben absconds 
 witb it, will not render tbe firm liable ; for tbe misapplica- 
 tion is not made wbile tbe money is in tbe custody of 
 tbe firm (/). 
 
 [h) EarJ of Dundonald v. Mast.ermaii, 7 Eq. 504. 
 (i) Sims V. Brut/ on, 5 Ex. 802.
 
 ( 79 ) 
 CHAPTER VII. 
 
 OF THE LIMITATION OF ACTIONS FOR TORT. 
 
 I HAVE SO far treated of the wrongs iudependeut of Reason for 
 contract, of which the law takes cognisance ; and I have Imitation, 
 shown how the law gives a remedy whenever it holds any 
 act to be wrongful, in accordance with the maxim " ubl jus 
 ibi reviedium est." 
 
 But although there is always a remedy, yet, for the sake 
 of the peace of the kingdom, a man is not allowed to enforce 
 his remedy at his own leisure, and after a long interval, 
 in the course of which evidence may have been entirely 
 swept away which, if produced, might prove the defendant's 
 innocence. 
 
 For this and other reasons, various statutes have been 
 from time to time passed, which confine the right of action 
 within certain periods after its commencement — periods 
 which, as they differ in different actions, will be more 
 particularly mentioned in the course of the second part 
 of this work. At this stage, I propose to examine only such 
 rules as apply to the limitation of all actions of tort. 
 
 SECTION I.— LIMITATION BY THE STATUTES OF 
 LIMITATION. 
 
 Art. 27. — Commencement of Period. 
 
 (1) When a statute limits the period within 
 which an action is to be brought for a tort, then, 
 if the cause of action is the infringement of a 
 right, the action must be brought within the 
 prescribed period after the actual doing of the 
 thing complained of.
 
 80 Of the Limitation of Actions foe Toet. 
 
 Art. 27. (2) But if the cause of action is not the 
 infringement of a right, but merely damage 
 resulting from a wrongful act or omission, the 
 period of limitation is to be computed from the 
 time when the party sustained the damage (a). 
 
 (3) And where a tort is fraudulently concealed, 
 and the plaintiff has no reasonable means of 
 discovering it, the statute only runs from the 
 date of the discovery (&). 
 
 Explanation. The meaning of this rule is, that where the tort is the 
 wrongful infringement of a right, then as that constitutes 
 _2Jer se a tort, so the period of limitation commences to run 
 immediately from the date of the infringement. But, on 
 the other hand, where the tort consists in the violation of a 
 duty coupled with actual resulting damage, then, as the 
 breach of duty is not of itself a tort, so the period of 
 limitation does not commence to run until it becomes a to]-t 
 by reason of the actual damage resulting from it. 
 
 Illustrations. (1) Thus, where A. owned houses built upon land con- 
 Taking away tiguous to land of B., C, and D. ; and E., being the owner 
 simport °^ ^^® mines under the land of all these persons, so worked 
 
 them that the lands of B. sank, and after more than six 
 years' interval (the period of limitation in actions for 
 causing subsidence), their sinking caused an injury to A.'s 
 houses : — Held, that A.'s right of action was not barred, as 
 the tort to him w^as the damage caused ])y the working of 
 the mines, and not the working itself (c). 
 
 Abstracting (2) But where a trespasser wrongfully worked the plain- 
 tiff's coal, in consequence of which the surface of the 
 plaintiff's land subsided, it was held that the statute 
 commenced to run from the working and taking away of 
 
 (a) Backhouse v. Bonomi, 9 H. L. Cas. 503 ; Mifche/l v. Barley Main 
 Co., 11 App. Cas. 127. 
 
 (//) Oihhs V. Guild, 9 Q. B. 1). .59 ; Bitlli Coal MiiiiiKj Co. v. Osborne, 
 [1899] A. C. 351. 
 
 (c) Backhouse v. Bonomi, supra : Mitchell v. Darhy Main Co., 
 supra. 
 
 coal.
 
 Limitation by Statutes of Loiitation. 81 
 
 the plaintiff's coal, and not from the suhsidence ; on the Art. 27. 
 ground that the working of the coal was a complete tort, 
 and that the subsidence was only a consequence of it (d). 
 
 (3) In an action for wrongful conversion of goods (which Actions for 
 is an injury to a right), the facts were as follows : A.'s chattels, 
 furniture was seized under an execution by the sheriff, and 
 eventually it was bought by A.'s friends, and left in his 
 possession. A. enjoyed the use of it for more than six 
 
 years, and died. Upon A.'s death it was claimed by these 
 friends, and adversely by the widow, on the ground that the 
 Statute of Limitations barred them from claiming it after 
 they had allowed A. to keep it for six years : it was, 
 however, held that the statute did not begin to run until 
 the widow had refused to give up the furniture to the 
 friends, for the tort was the wrongful conversion of the 
 goods, and there was no conversion until there had been 
 a demand and refusal (c). 
 
 (4) A lease, belonging to the plaintiff, was fraudulently Concealed 
 taken from him by his son, and deposited with B. to secure 
 
 a loan made by B. to the plaintiff's son. The plaintiff was 
 ignorant of this transaction. Subsequently B. became 
 bankrupt, and his trustee in banki'uptcy assigned the lease- 
 hold premises for good consideration to the defendant. B. 
 and the defendant were both ignorant of the fraud. The 
 plaintiff then commenced an action against the defendant 
 for conversion of the lease ; to which the defendant pleaded 
 that the fraudulent deposit with B. was made more than 
 six years before action brought, and that, consequently, the 
 action was barred by the Statute of Limitations. The 
 Court of x\ppeal, however, held that the statute only began 
 to run when the plaintiff" had a complete cause of action 
 against the defendant, i.e., when he demanded the deed and 
 was refused it, and not from the receipt of the deed by B. 
 In giving judgment. Lord Esher, M.E., said: "I am of 
 opinion that, in the present case, the Statute of Limitations 
 does not apply ; it applies only to an action brought against 
 
 , {(i) Spoor V. Green, L. R. 9 Ex. 99. 
 (') Edu:ardn v. Clay, '28 Bcav. 145.
 
 82 
 
 Of the Limitation of Actions for Tort. 
 
 Art. 27. 
 
 Actions for 
 recovery of 
 land. 
 
 the defendant in respect of a wrongful act done hy the 
 defendant himself. The property in chattels, which are 
 the subject-matter of this action, is not changed by the 
 Statute of Limitations, though more than six years may 
 elapse, and if the rightful owner recovers them, the other 
 man cannot maintain an action against him in respect of 
 them" (/). 
 
 (5) There is a great distinction between actions for the 
 recovery of chattels and actions for the recovery of land. 
 For the Statutes of Limitation do not bar the rigJtt to 
 chattels after the prescribed period, but only bar the 
 plaintiff's remedy against the wrongdoer ; whereas the Eeal 
 Property Limitation Acts bar and extinguish not viereUj the 
 remedy but also the right. See 3 & 4 Will. 4, c. 27, s. 34, 
 and 37 & 38 Vict. c. 57, s. 9. Consequently, if a plaintiff 
 has allowed another to remain in possession of land, without 
 acknowledgment, for twelve years, he will be barred, 
 although he may never have demanded delivery up of 
 possession ((/). Where, however, an intruder goes out of 
 possession ol land before acquiring a statutory title, the 
 statute ceases to run, and the title of the true owner 
 x'emains unaffected, even although he does not himself 
 retake possession until after the expiration of the statutory 
 period (h). 
 
 IlhiBtrations. 
 
 False 
 imprison- 
 ment. 
 
 Art. 28. — Continuing Torts. 
 
 Where the tort is continuing, or recurs, a fresh 
 right of action arises on each occasion (/). 
 
 (1) Thus, where an action is brought against a person for 
 false imprisonment, every continuance of the imprisonment 
 de die in diem is a new imprisonment ; and therefore the 
 
 (/) Miller v. Dell, [1891] 1 Q. B. 4G8 ; and see also Spnchnan v. 
 Fo.^ttr, 11 Q. B. D. 99. 
 
 (g) See Scott v. Xixon. .3 Dru. & War. 388 ; Lethhriibjt v. Kirhnan, 
 •25 L. J. Q. B. 89 ; and Moulton v. Edmomh, 1 Dc G. F. & J. 250. 
 
 ■(h) Trusties, etc. Co. v. Short, 13 App. Cas. 793 ; 59 L. T. 677. 
 
 ((■) Whitthoust V. Fellowes, 30 L. J. C. P. 305.
 
 Limitation by Statutes op Limitation. 83 
 
 period of limitation commences to run from the last, and Art. 28. 
 not the first day of the imprisonment (k). 
 
 (2) But where A. enters upon the land of B. and digs a Trespass, 
 ditch thereon, there is a direct invasion of B.'s rights, 
 
 a completed trespass, and the cause of action for all 
 injuries resulting therefrom commences to run at the time 
 of the trespass. The fact that A. does not re-enter B.'s 
 land and fill up the ditch does not make him a continuous 
 wrongdoer and liable to repeated actions as long as the 
 ditch remains unfilled, even though there afterwards arises 
 new and unforeseen damage from the existence of the 
 ditch (l). 
 
 (3) But where the defendants worked their mines too Nuisance. 
 close to the plaintiff's land, and, in consequence, some 
 cottages of the plaintiff were injured in 1868, and by reason 
 
 of the same excavation some more cottages were injured in 
 1882, it was held that the plaintiff was entitled to sue for 
 the injuries suffered in 1882. For the tort did not consist 
 in making the excavation, but in causing the plaintiff''s land 
 to subside ; and as often as it subsided a new cause of 
 action arose. The causa causans was, no douht, the 
 excavation, but the cause of action was the damage {m). 
 
 Aet. 29. — Disability. 
 
 Where a person is under disability, the statute 
 only runs from the cesser of the disability (;/). 
 But whenever the statute once begins to run, it 
 continues to do so notwithstanding subsequent 
 disability (o). But no action to recover land or 
 
 ik-) Hardy v. L'i//e, 9 B. & C. 608. 
 
 (I) Kansas Pacific Railway v. MiMman, 17 Kansas Rep. 224. 
 
 (m) Mitchell v. Darley Main Co., 11 App. Cas, 127. 
 
 [n] 21 Jac. 1, c. 16, s. 7 ; 3 & 4 Will. 4, c. 27, s. 16. 
 
 (o) Rhodes v. Smethurst, 4 M. & W. 42 : Lafond v. Ruddock, 13 C. B. 
 819.
 
 84 Of the Limitation of Actions for Tort. 
 
 Art. 29. rent can be brought after thirty years, notwith- 
 standing disabihty (j.)). 
 
 By disability is meant infancy, lunacy, or idiocy, and 
 formerly coverture; but since tbe Married Women's Pro- 
 perty Act, 1882, was passed, the latter is no longer disability, 
 and where a tort was suffered by a married woman before 
 that Act, it has been held, that for the purposes of limi- 
 tation, her right to sue first accrued on the passing of the 
 Act (g). 
 
 SECTION II.— PUBLIC AUTHOEITIES 
 PEOTECTION ACT, 1894. 
 
 Art. 30. — f>ipecial Umitation in favour of Public 
 Officers and Autliorities. 
 
 No action lies against any person for any act 
 done in pursuance or execution, or intended 
 execution, of any Act of Parhament or of any 
 pubhc duty or authority, or in respect of any 
 neglect or default in the execution of any Act of 
 Parhament, duty or authority, unless it be 
 commenced within six monflis next after the act, 
 neglect or default complained of, or in case of a 
 continuance of injury or damage within six 
 months next after the ceasing thereof (r). 
 
 Tllustrations. (1) A magistrate having convicted and fined the plaintiff 
 for an offence under the Vaccination Acts, issued a distress 
 warrant in default of payment of the fine, and a distress 
 was put in on the plaintiff's premises. Subsequently the 
 conviction was quashed for want of jurisdiction. The 
 plaintiff has six months from the date of the irroiigful entry 
 on his premises within which to ])ring his action for the 
 illegal distress (s). 
 
 {])) 37 & 38 Viet. c. 57, s. 5. 
 
 (ry) Weldou V. Neal, 32 ^V. R. 828. 
 
 (>•) ,")() & 57 Vict. c. 61. 
 
 (.s) Pol/cy V. ForiUiftm, n!!'*^! 2 K. B. 345.
 
 Public Authorities Protection Act, 1894. 85 
 
 (2) A county council acquired and worked tramways Art. 30. 
 under their statutory powers. An action for damages for 
 injuries sustained by a passenger on one of their tramcars 
 
 in consequence of the negligence of their servants must 
 be begun within six months of the negligence complained 
 of (t). 
 
 (3) But though the protection of the Act extends to the Contractor 
 officers of a public body and to persons acting under their ^utliorFtv ''^ 
 direct mandate, it does not extend to an independent con- 
 tractor doing work under contra.ct with a public authority 
 
 for his own profit. So a contractor laying down tram lines 
 under contract with the London County Council (though 
 the county council would be protected) cannot claim the 
 protection of the Act (to). 
 
 (t) Parker v. Loudon County Council, [1904] 2 K. B. 501. 
 (;/.) Tilling v. Dick, Kerr <L- Co., [1905] W. N. 38.
 
 ( 86 ) 
 CHAPTEE VIII. 
 
 OF DAMAGES IN ACTIONS FOR TORT. 
 
 The principles which govern the measure of damages in 
 actions of tort are very loose ; and, indeed, as Mr. Mayne, 
 in his excellent treatise, has pointed out, there are many 
 cases of tort in which no measure can be given. It will be 
 at once apparent, however, that, putting aside circumstances 
 of aggravation or mitigation, the compensation to be 
 awarded in respect of an injury to property is capable of 
 being far more accurately calculated than in respect of 
 injury to person or reputation ; and therefore, to some 
 extent, the principles of law are different in these two 
 classes of cases, as will be seen from the following rules. 
 
 Aet. 31. — DamcKjes for Personal Injiinj. 
 
 There is no fixed rule for estimating damages 
 in cases of injmy to the person, reputation, or 
 feehngs, and the finding of the jury will only be 
 disturbed — 
 
 (a) Where the damages awarded are out- 
 
 rageously excessive {a). 
 
 (b) Where it appears that the jury acted under 
 
 mistake or ill-feehng ; 
 
 (c) Where they have given more than the 
 
 plaintiff' ' was, on his own showing, 
 entitled to ; 
 
 (a) Hncldc v. Money, 2 Wils. 205 ; Praed v. Graham, 24 Q. B. D. 
 53.
 
 Damages for Peesonal Injury. 87 
 
 (d) Where the smalhiess of the award shows Art. 31. 
 that they have either failed to take into 
 consideration some essential element (7>), 
 or have compromised the question (c). 
 
 In the words of an American court, " In actions sounding Comment, 
 in damages, where the law furnishes no rule of measure- 
 ment save the discretion of the jury upon the evidence 
 before them, courts will not disturb a verdict upon the 
 ground of excessive damages unless it be so flagrantly 
 improper as to evince passion, prejudice, partiality, or cor- 
 ruption. Upon a mere matter of damages, where different 
 minds might, and probably would, arrive at different results, 
 and nothing inconsistent with an honest exercise of judg- 
 ment appears, the verdict should be left as the jury 
 found it " ((/). 
 
 (1) Thus, where some working men were unlawfully Illustrations, 
 imprisoned for six hours only, being in the meantime well F'^lse im- 
 fed and cared for, and the jury nevertheless awarded £300 P"'^^""^^" • 
 to each of them, the court refused to set the verdict aside ; 
 
 on the ground that it seemed to them probable that the 
 jury considered the importance of the right of personal 
 liberty rather than the position of the plaintiffs (e). 
 
 (2) And so in actions for seduction, " although in point of Seduction, 
 form the action only purports to give a recompense for 
 
 loss of service, we cannot shut our eyes to the fact that it 
 is an action brought by a parent for an injury to her child, 
 and the jury may take into their consideration all that she 
 can feel from the nature of the loss. They may look upon 
 her as a parent losing the comfort as well as the service of 
 her daughter, in whose virtue she can feel no consolation ; 
 and as the parent of other children whose morals may be 
 corrupted by her example " (/). 
 
 {h) PhUUp.i V. London ami South Western Rail Co., 4 Q. B. D. 406. 
 (c) Britton v. South Wahs Rail. Co., 27 L. J. Ex. 355 ; Falvey v. 
 Stanford, L. R. 10 Q. B. 54. 
 
 id) Miss. Cent. B. R. v. Caruth, 51 Miss. Rep. 77. 
 
 (e) Huckle v. Money, 2 Wils. 587. 
 
 (f) Per Lord Eldox, Bedford v. M'Koicl, 3 Esp. 120.
 
 88 
 
 Of Damages in Actions foe Tort. 
 
 Art. 31. 
 
 Assault. 
 
 Defamation. 
 
 (3) So in actions for assault and battery, the court will 
 seldom interfere ; and the jury may take the circumstances 
 into consideration, and aggravate or mitigate the damages 
 accordingly. 
 
 Thus, to beat a man publicly, is a greater insult and 
 injury than to do so in private, and is accordingly ground 
 for aggravation of damages (g). 
 
 (4) So, for defamation, the damages are almost wholly 
 in the discretion of the jury (/;), and the court will not 
 interfere with their verdict, unless, having regard to all 
 the circumstances, the damages awarded are so large that 
 no twelve reasonable men could have given them (/). 
 
 Art. 32. — -Damages for Iiij/irij to Propejii/. 
 
 (1) The damages in respect of injuries to pro- 
 perty are to be estimated upon the basis of being 
 compensatory for the deterioration in vahie 
 caused by the wrongful act of the defendant, 
 and for all natural and necessary expenses in- 
 curred by reason of such act (Z-). 
 
 (2) In actions for trespass to real property 
 the measure of damages is the loss the plaintiff 
 has sustained in consequence of the wrongful 
 acts of the defendant, and not the benefit which 
 accrues to the latter. 
 
 (3) When the wrong consists in depriving the 
 plaintiff of his personal property the measure of 
 damages is the market value of the property at 
 the time of the commission of the wrong. 
 
 i'j) Tn/iklije v. IVade, 8 Wils. 18. 
 (h) Kelly v. Sherlock, L. R. 1 Q. B. 686. ■ 
 (i) Praecl v. Graham, supra. 
 
 (k) See Rmt v. Victoria Dock Co., 56 L. T. 216 ; and Puevmafic Tyre, 
 etc. Co. V. Punctxire Proof, etc. Co., 15 R. P. C. 405.
 
 Damages for Injury to Property. 89 
 
 (4) Where the wrong results in the plaintiff's Art. 32. 
 "being temporarily deprived of the use of personal 
 property the measure of damages is the value of 
 the use of which he is deprived. 
 
 (1) Thus, in the case of injury to a horse through the Injniy to 
 
 liorsG. 
 defendant's neghgence, it has been held that the measure 
 
 of damages is the keep of the horse at the farrier's, the 
 
 amount of the farrier's bill, and the difference between the 
 
 prior and subsequent value of the horse (Z). 
 
 (2) So, for the conversion of chattels, the full market Conversion, 
 value of the chattel at the date of the conversion, is, in the 
 absence of special damage, the true measure. Thus, where 
 
 the plaintiff purchased champagne, lying at the defendant's 
 wharf, at fourteen shillings per dozen, and resold it at 
 twenty-four shillings to the captain of a ship about to leave 
 England, and the defendants wrongfully refused to deliver 
 up the wine, and converted it to their owni use, it was held, 
 in an action of trover, that although the defendants had no 
 knowledge of the sale, or of the purposes for which the 
 plaintiff" required delivery of the champagne, yet the plaintiff 
 Avas entitled as damages to the price at which he had 
 sold it {in). 
 
 (3) Where the defendant cut a ditch across the plaintiff"s Trespass to 
 land, the measure of damages was the diminution in value ^^"'^• 
 
 of the land, and not the cost of restoring it (71). In Whit- 
 wham V. Westminster Brymho Colliery Co. (0), another 
 principle was applied in peculiar circumstances. The 
 ■defendants had wrongfully tipped on the plaintiff's land 
 spoil from a colliery, and it was held that in the special 
 circumstances the value of the land to the defendants for 
 tipping purposes was the proper measure, as the defendants 
 had had the use of the plaintiff's land for years, and they 
 ought not to do this without paying for it. 
 
 [l) Jones V. Boyce, 1 Stark. 493. 
 (m) France v. Gaudet, L. R. 6 Q. B. 199. 
 (n) Jones v. Gondaij, 8 M. & W. 146. 
 {o) [189G] -1 Cli. 538.
 
 90 Of Damages in Actions foe Tort. 
 
 Art. 32. (4) So, where coal has been taken, by working into the 
 
 Takins coal. ^^^1^6 of an adjoining owner, the trespasser will be treated 
 as the purchaser at the pit's mouth, and must pay the 
 market value of the coal at the pit's mouth, less the actual 
 disbursements (not including any profit or trade allowances) 
 for severing and bringing it to bank, so as to place the. 
 owner in the same position as if he had himself severed and 
 raised the coal {j})- 
 
 Loss of use of (5) Where, owing to a collision, the plaintiffs lost the 
 a c la te . ^^^^ ^^ ^ dredger for some weeks, they were entitled to 
 recover damages for the loss of the use of the dredger (g), 
 and he is entitled to the same damages even though he ha& 
 a spare article of the same kind which he keeps for use in 
 such circumstances (r). 
 
 Cost of (6) So, in case of collisions between ships, the actual cost 
 
 repairs. q£ repairs must be recouped, no allowance being made in 
 
 respect of new materials replacing old ones (s). 
 
 Art. 33. — Presumption of Damage against a 
 Wrong-doer. 
 
 If a person who has wrongfully converted pro- 
 perty, refuses to produce it, it will be presumed 
 as against him to be of the best description (/). 
 
 Illustrations. (1) Thus, in the leading case {t), where a jeweller who had 
 wrongfully converted a jewel which had been shown to him, 
 and had returned the socket only, refused to produce it 
 in order that its value might be ascertained, the jury were 
 directed to assess the damages on the presumption that the 
 jewel was of the finest water, and of a size to fit the socket ; 
 for Omnia 2)ra'si(]iiuntur..cmitxa~sj2QlMin2xm. 
 
 (2j) In re United Merthyr Colliery Co., L. R. 1.1 E4. 46. 
 (q) The Greta Holme, [1897] A. C. 590. 
 (r) The Mediami, [1900] A. C. 113. 
 (.s) The Mvmter, 12 T. L. R. 264. 
 / [t) Armory v. Delamirie, 1 Str. 504 ; 1 Sin. L. Ca. 343.
 
 Consequential Damages. 91 
 
 (2) So, where a diamond necklace was taken away, and Art. 33. 
 part of it traced to the defendant, it was held that the jury 
 might infer that the whole thing had come into his 
 hands (ic). 
 
 Art. 34. — Cunsequential DcDnages. 
 
 Where any special damages have natjiralhj, 
 and in sequence, resulted from the tort, they 
 may be recovered ; but not otherwise. 
 
 The difficulty in cases under this rule, is to determine 
 what damages are the natural result, and what are too 
 remote. 
 
 (1) If, through a person's wilful or negligent conduct, Illustrations, 
 corporal injury is inflicted on another, whereby he is Loss of 
 partially or totally prevented from attending to his business, '^'■''"""S^' 
 the pecuniary loss suffered in consequence may be recovered, 
 
 for it is the natural result of the injuria (x). 
 
 (2) Where the tort occasions as a natural result mental Mental 
 shock, damages may be recovered in respect thereof. It ^ ^'^*^ ' 
 was long doubted whether mental shock caused by fright 
 without any bodily injury was a subject for damages, but 
 
 it has now been decided that damages are recoverable in 
 respect thereof (//). 
 
 (3) So, the medical expenses incurred may be recovered Medical 
 if they form a legal debt owing from the plaintiff to the ^^P*^"^®^- 
 physician, but not otherwise (-2). 
 
 (4) The plaintiff was travelling with other passengers in Loss of 
 the carriage of a railway company, and, on the tickets P'"P*^'*y- 
 
 ((f) Morfimer v. Cradock; 12 L. J. C. P. l«(i. 
 
 (.(•) Phillipfi V. London and South Westtrii Rai/. Co., 4 Q. B. D. 406. 
 
 (!/) IhdieM V. White d- Sons, [1901] 2 K. B. 669— an action for negli- 
 gence; and WilkinAon v. Domitou, [1S97] 2 Q. B. 57 — an action for 
 damages for shock caused by tlie defendant, as a practical joke, falsely 
 telling the plaintiff that her husband luid liad liis legs broken in an 
 accident. 
 
 (:;) ])i\>'oii V. Be//, 1 Stark. 2S9 ; and see Spark v. Hedop, 28 L. J. 
 Q. B. 197.
 
 92 Of Damages in Actions for Tort. 
 
 Art. 34. being collected, there was found to be a ticket short. The 
 plaintiff was wrongly charged by the collector with being 
 the defaulter, and, on his refusing to pay, was removed by 
 the officers of the company, but without unnecessary 
 violence. In an action for assault, it was held, that the 
 loss of a pair of race-glasses, which the plaintiff had left 
 behind him in the carriage when he was removed, and 
 which were not proved to have come into the possession of 
 any of the company's servants, was not such a natural 
 consequence of the assault as to be recoverable (a). 
 Lord (5) The damages awarded under Lord Campbell's Act to 
 
 Campbeirs ^^^ relatives of persons killed through the default of the 
 defendant, should be calculated in reference to a reasonable 
 expectation of pecuniary benefit, as of right or otherwise, 
 from the continuance of the life of the deceased (b). But 
 the jury cannot, in such cases, take into consideration the 
 grief, mourning, and funeral expenses to which the survivors 
 were put. And this seems reasonable ; for, in the ordinary 
 course of nature, the deceased would have died sooner or 
 later, and the grief, mourning, and funeral expenses would 
 have had to be borne then, if not at the time they were 
 borne (c). 
 
 And, on the same principle, where a deceased had made 
 provision for his wife, by insuring his life in her favour, 
 then, inasmuch as she is benefited by the accelerated receipt 
 of the amount of the policy, the jury ought, in estimating 
 the widow's loss, to deduct from the future earnings of the 
 deceased, not the amount of the policy moneys, but the 
 premiums which, if he had lived, he would have had to pay- 
 out of his earnings for the maintenance of the policy [d). 
 Injury to (6) So, in estimating the damages in an action for libelling 
 
 a tradesman, the jury should take into consideration the 
 prospective injury which will probably happen to his trade 
 in consequence of the defamation {e). 
 
 (a) Glover v. London, and South Western Bail. Co., L. R. ,S Q. B. 25. 
 
 (b) Franklin v. South Eastern Rail. Co., 3 H. & N. 211. 
 
 (c) Blake v. Midland Bail. Co., 18 Q. B. 93 ; Dalton v. South Eastern 
 Rail. Co., 4C. B. (n.s.)296. 
 
 (d) Grand Trnnk Rail. Co. v. Jennings, 13 App. Cas. 800. 
 
 (e) Gregory v. Williams, 1 C. & K. 568. 
 
 trade.
 
 Prospective Damages. 93 
 
 (7) A cattle-dealer sold to the plaintiff a cow, fraudulently -^-rt. 34. 
 representing that it was free from infectious disease, when j . . ■ 
 
 he knew that it was not ; and the plaintiff having placed the 
 cow with five others, they caught the disease and died. It 
 was held that the plaintiff was entitled to recover as damages 
 the value of all the cows, as their death was the natural 
 consequence of his acting on the faith of the defendant's 
 representation (/). 
 
 (8) In collision cases, the loss of earnings from a second Earnings 
 voyage for which the ship was let, is not too remote (g). " ^"^' 
 
 (9) So, where a steamer (wholly to blame) collided with Loss of shiji. 
 a sailing vessel, and destroyed its instruments of navigation, 
 
 and in consequence of that loss, the sailing ship ran ashore, 
 and was lost while making for port, it was held that the loss 
 of the ship was the natural result of the collision, and that 
 the steamer was liable (/i). 
 
 (10) So, again, a landlord, upon his tenant giving notice Having been 
 
 to quit, entered into a contract with a new tenant. Upon ^''^igfcl t'^ 
 
 ■^ . . . ^ pay damages 
 
 the expiration of the notice, the first tenant refused to quit, to a third 
 
 and the new tenant not being able to enter in consequence, ^^^^y- 
 
 brought an action against the landlord for breach of contract. 
 
 It was held that the landlord might recover, in an action 
 
 against the tenant, the costs and damages to which he had 
 
 been put in the action against himself ; for they were the 
 
 natural and ordinary result of the defendant's wrong (i). 
 
 Aet. 35 — Prosjiective Damages. 
 
 (1) The damages awarded must include the 
 probable future injury which will result to the 
 plaintiff from the defendant's tort. 
 
 (/) Mullet V. Mason, L. R. 1 C. P. 559. 
 {g) The Argentino, 14 App. Cas. 519. 
 (h) The City of Lincoln, 15 P. D. 15. 
 
 (i) Bramley v. Chesterton, 2 C. B. (n.s.) 605 ; and see Tindale v. Bell, 
 11 M. & W. 228.
 
 94 
 
 Of Damages ix Actions for Tort. 
 
 Art. 35. (2) But where an act of the defendant is 
 merely the causa causans, and the actual cause 
 of action {i.e., the tort) is injury to the plaintiff's 
 property, then each such injury constitutes a 
 fresh cause of action. 
 
 Illustrations. 
 
 BodiW 
 injuries. 
 
 Continuing 
 torts. 
 
 Successive 
 subsidences 
 caused by 
 one act of 
 defendant. 
 
 (1) In Bichardson v. MclUsli (k), Best, C.J., said: 
 "When the cause of action is complete, when the whole 
 thing has but one neck, and that neck has been cut off by 
 one act of the defendant, it would be mischievous to say — 
 it would be increasing litigation to say — ' You shall not 
 have all you are entitled to in your first action, but you 
 shall be driven to a second, third, or fourth for the recovery 
 of your damages.' " A corollary to this rule is, that several 
 actions cannot be brought in respect of the same injury. 
 Therefore, where a bodily injury at first appeared slight, 
 and small damages were awarded, but subsequently it 
 became a very serious injury, it was held that another 
 action would not lie ; for the action having been once 
 brought, all damages arising out of the wrong were satisfied 
 by the award in the action (/). 
 
 (2) But if the tort be a continuing tort, the principle does 
 not apply ; for in that case a fresh cause of action arises 
 de die in diem. Thus, in a continuing trespass or nuisance, 
 if the defendant does not cease to commit the trespass or 
 nuisance after the first action, he may be sued until he 
 does. Whether, however, there is a continuing tort, or 
 merely a continuing daviage, is often a matter of difficulty 
 to determine. 
 
 (3) In the recent case oi' Mitchell v. Darley Main Co. (m), 
 the defendant worked his mines too close to the plaintiff's 
 property, and in consequence some cottages of the plaintiff 
 were injured in 1868, and were repaired by the defendant. 
 In 1882, in consequence of the scone icorkings wliich caused 
 the damage of 1868, a further subsidence took place, and 
 
 (k) 2 Bing. 240. 
 
 {I) Fttter V. Beat, 1 Ld. Raym. 389—692. 
 
 (m) 11 App. Cas. 127.
 
 Aggravation and Mitigation. 
 
 95 
 
 the plaintiff's cottages were again injured. The case turned Art. 35. 
 on the question of whether the plaintiff was barred by the 
 Statute of Limitations, but incidentally it was decided that 
 the tort was not the excavation, but the causing the plaintiff's 
 land to subside. The excavation was no doubt the proxi- . 
 mate cause of the subsidence (the causa cansans), but the 
 tort itself was the infringement of the plaintiff's right of 
 support, and consequently each separate subsidence was a 
 distinct and separate cause of action. 
 
 (A) So also, where the same wrongful act causes damage Damage to 
 V^/ "^^J ' "^ , 111 piopertv and 
 
 to goods, and also damage to the person, it has been lieici person dis- 
 that there were two distinct causes of action, for which tinct torts, 
 separate proceedings might be prosecuted (;/). 
 
 Aet. 36. — Aggra ration and Mitigation. 
 
 The jury may look into all the circumstauces, 
 and at the conduct of both parties, and see where 
 the blame is, and what ought to be the compen- 
 sation according to the way the parties have 
 conducted themselves (o) . 
 
 (1) In seduction, if the defendant had couniiitted the Illustrations. 
 
 offence under the guise of honourable courtship, that is Seduction 
 
 " . , -, , , under guise 
 
 ground for aggravatmg the damages; not, however, on ^^^ ^^^^^.^g^p^ 
 
 account of the breach of contract, for that is a separate 
 
 offence, and against a different person. " The jury did 
 
 right, in a case where it was proved that the seducer had 
 
 made his advances under the guise of matrimony, in giving 
 
 liberal damages ; and if the party seduced brings an action 
 
 for breach of promise of marriage, so much the better. If 
 
 much greater damages had been given, we should not have 
 
 been dissatisfied therewith, the plaintiff having received 
 
 (u) Bninsden v. Humphni/, 14 Q. li D. 141, Coleridoe, C.J., 
 difi^entiente. 
 
 (o) Daris v. London and North Western Rdil. Co., 7 W. R. 10.").
 
 96 
 
 Of Damages in Actions for Toet. 
 
 Art. 36. 
 
 Character of 
 girl seduced. 
 
 Plea of 
 truth in 
 defamation. 
 
 Plaintiff's 
 bad character 
 in 
 defamation. 
 
 Plaintiff's 
 irritating 
 conduct in 
 defamation. 
 
 this insult in his own house, where he had civilly treated 
 the defendant, and permitted him to pay his addresses to 
 his daughter" (jj). 
 
 (2) On the other hand, the previous loose or immoral 
 character of the party seduced is ground for mitigation. 
 The using of immodest language, for instance, or submitting 
 herself to the defendant under circumstances of extreme 
 indelicacy. 
 
 (3) In actions for defamation, a plea of truth is matter of 
 aggravation unless proved, and may be taken into con- 
 sideration by the jury in estimating the damages (g). 
 
 (4) Evidence of the plaintiff's general had character is 
 allowed in mitigation of damages in cases of defamation ; 
 for, as is observed in Mr. Starkie's book on Evidence, " To 
 deny this, would be to decide that a man of the worst 
 character is entitled to the same measure of damages with 
 one of unsullied and unblemished reputation. A reputed 
 thief would be placed on the same footing with the most 
 honourable merchant ; a virtuous woman with the most 
 abandoned prostitute." But although evidence of general 
 reputation of bad character is admissible, evidence of 
 rumours and suspicions before the publication of the libel 
 that the plaintiff had done what was charged in it, or 
 of facts showing the misconduct of the plaintiff, is not 
 admissible {r). 
 
 (5) In Kelly v. Sherlock (s), the action was brought in 
 respect of a series of gross and offensive libels contained in 
 the defendant's newspaper. It appeared, however, that the 
 first libel was written because the plaintiff preached, and 
 published in the local papers, two sermons reflecting on 
 the magistrates for having appointed a Eoman Catholic 
 chaplain to the borough gaol, and on the town council for 
 
 (p) Wn.MOT, C.J., in Ttdlidge v. n'ade, 3 W'ils. 18. 
 (q) Warivick v. Foulkes, 12 M. & W. 508. 
 
 (r) See Scott v. Samp-ton, 8 Q. B. D. 491, and Wood v. Durham, 
 21 Q. B. D. 501 ; and as to giving particulars, see Order XXXVI., r. 37. 
 (a) L. R. 1 Q. B. 686.
 
 / 
 
 Aggravation and Mitigation. 97 
 
 having elected a Jew as their mayor. The plaintiif had, Art. 36. 
 also, soon after the libels had commenced, alluded to the 
 defendant's paper, in a letter to another paper, as " the 
 dregs of provincial journalism," and he had delivered from 
 the pulpit, and published, a statement to the effect, that 
 some of his opponents had been guilty of subornation of 
 perjury in relation to a charge of assault of which the 
 plaintiff' had been convicted. The jury having returned a 
 verdict for a farthing damages, the court refused to interfere 
 with the verdict on the ground of its inadequacy, intimating 
 that, although, on account of the grossness and repetition 
 of the libels, the verdict might well have been for larger 
 damages, yet it was a question for the jury, taking the 
 plaintiff's own conduct into consideration, what amount of 
 damages he was entitled to, and that the court ought not to 
 interfere. 
 
 (6) In false imprisonment and assault, if the imprison- Imprison- 
 ,11 i?ii c £ ^ 1 fi ment on false 
 
 ment has been upon a false charge of felony, where no felony d^aroe of 
 
 has been committed, or no reasonable ground for suspecting felony, 
 the plaintiff, this will be matter of aggravation. 
 
 (7) But if an assault and battery have taken place in Battery in 
 consequence of insulting language on the part of the conseiiuence 
 plaintiff, this will be ground for mitigating the damages {t). 
 
 (8) Where a person trespassed upon the plaintiff's land, Insolent 
 and defied him, and was otherwise very insolent, and the "''^^P''^^^- 
 jury returned a verdict for £500 damages, the court refused 
 
 to interfere, Gibbs, C.J., saying: "Suppose a gentleman 
 has a paved walk before his window, and a man intrudes, 
 and walks up and down before the window, and remains 
 there after he has been told to go away, and looks in while 
 the owner is at dinner, is the trespasser to be permitted to 
 say, ' Here is a halfpenny for you, which is the full extent 
 of all the mischief I have done ' ? ^Yould that be a 
 compensation?" (u). 
 
 (t) Thomas v. Powell, 7 C. & P. 807. 
 (tt) Merest v. Harvey, 5 Tannt. 441.
 
 7 '^■r<fJJU 'ftH" 
 
 98 
 
 Of Damages in Actions for Tort. 
 
 Art. 36. (9) Aucl so where the defendant wrongfully seizes 
 
 ,^^ 7", another's chattels, and exercises dominion over them, 
 
 \Vroiigiui 
 
 seizure. substantial damages will be awarded for the invasion of the 
 
 right of ownership {x). 
 
 Causing 
 suspicion of 
 insolvency. 
 
 (10) And where the defendant took the plaintiff's goods 
 under a false claim, whereby certain persons concluded that 
 the plaintiif was insolvent, and that the goods had been 
 seized under an execution, it was held that exemplary 
 damages might be given {ij). 
 
 Art. 37. — Joint Tort-feasors. 
 
 (1) Persons who jointly commit a tort may 
 be sued jointly or severally ; and if jointly, the 
 damages may be levied from both or either {z). 
 
 (2) A judgment against one of several joint 
 tort-feasors is a bar to an action against the 
 others, even although the judgment remains 
 unsatisfied (a). 
 
 (3) A release of one of several joint tort-feasors 
 is a bar to an action against the others {h) ; but a 
 mere covenant not to sue one of them is not (c). 
 
 (4) If damages are levied upon one only, then 
 (a) where the tort consists of an act or omis- 
 sion, the illegahty of which he must be pre- 
 sumed to have known, he will have no right to 
 call upon the others to contribute (cZ). But (b) 
 
 (x) Baylwn V. Fisher, 7 Bing. 153. 
 
 (y) Brewer v. Dew, 11 M. & W. 6'29. 
 
 (z) Hume v. Oldacre, 1 Stra. 252 ; Blair v. DeaMn, 57 L. T. 522. 
 
 « (a) Brinsmead v. Harrison, L. R. 7 C. P. 547. 
 
 {b) Cocke V. Jennor, Hob. 06. 
 
 {(■) Duck V. Maye.u, [1892] 2 (,». B. 511. 
 
 , (fZ) M trry weather y. Nixon, 8 T. R. 186.
 
 Joint Tort-feasoes. 99' 
 
 where the tort consists of an act not obviously Art. 37. 
 unlawful in itself {e.g.^ trover by a person from 
 whom the same goods are claimed by adverse 
 claimants), he may claim contribution or indem- 
 nity against the party really responsible for the 
 tort ; and this right is not confined to cases 
 where he is the agent or servant of the other 
 tort-feasor (6^). 
 
 (e) Adamson v. Jtrvis, 4 Bing. 72 ; Bttts v. Gihhins, 2 A. & E. 57.
 
 100 ) 
 
 CHAPTEE IX. 
 
 OF INJUNCTIONS TO PREVENT THE CONTINUANCE 
 OF TORTS. 
 
 Definition. An iujunctiou is an order of the Court of Appeal, or the 
 High Court of Justice, or any division or judge of either of 
 them, or of a county court (a) restraining the commission or 
 continuance of some act. 
 
 Interlocutory Injunctions are either interlocutory or perpetual. An 
 
 or perpetual, i^^iterlocutory injunction is a temporary injunction, granted 
 
 summarily on motion (b) founded on an affidavit, and before 
 
 the facts in issue have been formally tried and determined. 
 
 Such an injunction is granted to restrain the commission or 
 
 continuance of some act until the court has decided whether 
 
 ^- a perpetual injunction ought to be granted. Aperpetual 
 
 ^ injunction is one v\-hich is granted after the facts in issue 
 
 have been tried and determined, and is given by way of 
 
 \ final relief. 
 
 Art. 38. — Injuries Hemediahle h/j Injunction. 
 
 (1) AYherever a legal right, whether iu regard 
 to property or person, exists, a violation of that 
 right will be prohibited in all cases where the 
 injury is such as is not susceptible of being 
 adequately compensated by damages, or at least 
 not without the necessity of a multiplicity of 
 actions for that purpose (c). 
 
 (a) A county court has now, in actions witliin its jurisdiction, power 
 to grant an injunction against a nuisance, and to conunit to prison for 
 disobedience thereof [Ex parte Martin, 4 Q. B J). 212; Martin v. 
 Bannister, ib. 491). 
 
 (h) In the King's Bench Division applications for interlocutory in- 
 junctions are made by summons in chambers. 
 
 {<■) Imperial Gax Light and Coke Co. v. Broadhent, 7 H. L. Cas. 600.
 
 Injuries Remediable by Injunction. 101 
 
 ('2) The court has jurisdiction to give damages Art^8. 
 instead of granting an injunction, and will gene- 
 rally do so in cases where there are found in " 
 conibination the four following requirements, 
 viz., where the injmy to the plaintiff's legal 
 rights (1) is small, (2) is capable of being esti- 
 mated in money, (3) can be adequately compen- ,^^ 
 sated by a small money payment, and (4) where i 
 the case is one in which it would be oppressive | ^; -- 
 to the defendant to grant an injunction id). j l^ 
 
 (3) To entitle a plaintiff to an interlocutory ] ■ :>^: 
 injunction, the court must be satisfied that there 
 
 is a serious question to be tried at the hearing, , '"( 
 
 and that, on the facts before it, there is a prob- ; C^ 
 
 ability that the plaintiff is entitled to relief (e). 
 
 (4) An interlocutory injunction will be granted 
 to restrain the publication of a libel, even though 
 such libel affects the plaintiff in his character 
 only, and not m his business. But an injunc- 
 tion to restrain the pubhcation of a hbel will 
 only be granted in the clearest cases (/). \ 
 
 (1) Thus, where substantial damages would be, or have illustrations, 
 been, recovered for injury done to land, or the herbage Nuisances, 
 thereon, by smoke or noxious fumes, an injunction will be 
 
 granted to prevent the continuance of the nuisance ; for 
 otherwise the plaintiff would have to bring continual 
 actions (r/). 
 
 (2) And so where a railway company, for the purpose of 
 constructing their works, erected a mortar mill on part of 
 their land close to the plaintiff's place of business, so as to 
 cause great injury and annoyance to him by the noise and 
 
 (f/) Per Baggallay, L.J. , \nSaytrs\. Col/i/er, 2SCh. 1). 108; Serrao 
 V. Xoel, 15 Q. B. D. 549 ; and ^jer A. L. Smith, L.J., in Sheffer v. City 
 of London Electric Liyhtmg Co., [1895] 1 Ch. 287, at p. 322. 
 
 (e) Pe7- Cotton, L.J., Preston v. Luck; 27 Ch. D. p. 506. 
 
 (/■) Bonnard v. Ferryman, [1891] 2 Ch. 269; Monson v. Tusmud, 
 [1894] 1 q. B. 671. 
 
 (V) Tipping v. St. Helena Smeltimj Co., L. R. 1 Ch. 66.
 
 102 Of Injunctions to Prevent Continuance of Toets- 
 
 Art. 38. vibration, it was held that he was entitled to an injunction 
 to restrain the company from continuing the annoyance {h). 
 
 (3) As the atmosphere cannot rightfully be infected with 
 noxious smells or exhalations, so it should not be caused to 
 vibrate in a way that will wound the sense of hearing. 
 Noise caused by the ringing of church bells, if sufficient to 
 annoy and disturb residents in the neighbourhood in their 
 homes or occupations, is a nuisance, and will be restrained (i). 
 
 Interference (4) So, where one has gained a right to the free access 
 ° ' of light to his house, and buildings are erected which cause 
 a substantial privation of light sufficient to render the 
 occupation of the house uncomfortable, according to the 
 ordinary notions of mankind, and to prevent the plaintiff 
 from carrying on his business on the premises as beneficially 
 as before, an injunction will be granted in cases in which 
 damages do not afford an adequate remedy. In Colls v. 
 Home and Colonial Stores (k), Lord Macnaghten said : 
 "Then, with regard to giving damages in addition to 
 / or in substitution for an injunction, that, no doubt, is 
 I / a delicate matter. It is a matter for the discretion of 
 \/ the court, and the discretion is a judicial discretion. 
 
 ' It has been said that an injunction ought to be granted 
 
 when substantial damages would be given at law. I 
 have some difficulty in following out this rule. I observe 
 that in some cases juries have been directed to give Is. 
 damages as a notice to the defendant to remove the 
 obstruction complained of : and then, if the obstruction 
 was not removed, in a subsequent action the damages were 
 largely increased. In others a substantial sum has been 
 awarded, to be reduced to nominal damages on removal of 
 the obstruction. But the recovery of damages, whatever 
 the amount may be, indicates a violation of right, and in 
 former times, unless there were something special in the 
 case, would have entitled the plaintiff as of course to an 
 
 (A) Ftiiii-icl- V. East Loudon Hall. Co., "20 p]q., 'A\ ; hut see Harrison 
 V. South irark, etc. Water Co., {\S\)\] '1 Ch. 409, in which the former case 
 was distinguished. 
 
 (?) Soltuu V. De Held, 2 Sim. (x.s.) 1.S3. 
 
 {k) [1904] A. C. 179.
 
 Injuries Eemediablb by Injunction. 103 
 
 injunction in equity. I rathei- doubt whether the amount Art. 38. 
 
 of the damages which may be supposed to be recoverable at 
 
 kiw affords a satisfactory test. In some cases, of course, an 
 
 injunction is necessary— if, for instance, the injury cannot 
 
 fairly be compensated by money— if the defendant has acted 
 
 in a high-handed manner — if he has endeavoured to steal a 
 
 march upon the plaintiff or to evade the jurisdiction of the 
 
 court. In all these cases an injunction is necessary, in 
 
 order to do justice to the plaintiff and as a warning to 
 
 others. But if there is really a question as to whether the 
 
 obstruction is legal or not, and if the defendant has acted 
 
 fairly and not in an unneighbourly spirit, I am disposed to 
 
 think that the court ought to incline to damages rather than 
 
 to an injunction. It is quite true that a man ought not to 
 
 be compelled to part with his property against his will, or 
 
 to have the value of his property diminished, without an 
 
 Act of Parliament. On the other hand, the court ought to 
 
 l)e very careful not to allow an action for the protection of 
 
 ancient lights to be used as a means of extorting money. 
 
 Often a person who is engaged in a large building scheme 
 
 has to pay money right and left in order to avoid litigation, 
 
 which will put him even to greater expense by delaying his 
 
 proceedings. As far as my own experience goes, there is 
 
 quite as much oppression on the part of those who invoke 
 
 the assistance of the court to protect some ancient lights, 
 
 which they have never before considered of any great value, 
 
 as there is on the part of those who are improving the 
 
 neighbourhood by the erection of buildings that must 
 
 necessarily to some extent interfere with the light of 
 
 adjoining premises." 
 
 (5) Formerly (1) if the plaintiff was out of possession, an Trespass on 
 injunction against a trespasser was refused, except in cases 
 of fraud, collusion, or destruction of the estate ; and it was 
 necessary that an action to try the right should be pending. 
 (2) If the plaintiff was in possession, the right to an injunc- 
 tion depended upon the fact of the trespass being by a 
 stranger, or under a claim of title (/). All such distinctions 
 
 (/) SUuiJonl V. Ilurlstom, 9 Ch. App. 116.
 
 104 Of Injunctions to Prevent Continuance of Torts. 
 
 Art. 38. are, however, abolished by s. 25 (8) of the Judicature Act, 
 1873 {vi). 
 
 Sewage (6) An iujuuction will not be granted against a local 
 
 pollution. authority who are committing a nuisance by sewage 
 pollution when it is legally impossible for the authority 
 to obey the terms of the injunction, because they have no 
 power to stop up their sewers or prevent persons from using 
 them, or when it is physically impossible. In such cases 
 damages will be given instead (n). 
 
 Lateral (7) Again, deprivation of lateral or subjacent support, in 
 
 support. cases where a jury would give considerable damages, is 
 
 sufficient ground for an injunction. So also a mandatory 
 
 injunction will be granted for the removal of an obstruction 
 
 to a householder's access to a public highway (o). 
 
 Trademarks. (8) So infringements of trade marks, copyright, and 
 patent right, are peculiarly remediable by injunction ; for 
 not only are they continuing wrongs to proprietary rights, 
 but damages never could properly compensate the. persons 
 whose rights are invaded (^j). 
 
 Libel. (9) It was formerly held that an injunction could not be 
 
 granted to restrain the publication of a personal libel, even 
 where it injuriously affected property (g). However, 
 since the Judicature Act, 1873, the court has power to 
 grant an injunction whenever it may appear to be just or 
 convenient (s. 25 (8)). For some time the court was 
 inclined to restrict this power to cases where a libel preju- 
 dicially affected property (r) /but it may now be considered 
 settled that the court has jiirisdiction to grant injunctions 
 to restrain the publication of all libels (s) ; or even oral 
 
 {m) Aiiqlo-Itnlian Baiikx. Darie.-^, 9 Ch. I). 270 ; Hickman v. Maisey, 
 [1900] 1 (j. B. 752. - 
 
 (u) Alt. -Gen v. Dorlimi Union, 20 Cli. 1). 59.5 : Earl of Harrimjton v. 
 Dei-hy Corporation, [1905] 1 Ch. 205. 
 
 (o) Bamuz v. Soutliend Local Board, 67 L. T. 169. 
 
 (jo) See Maiinolia, etc. Co. v. Atlax Mttal Co., U R. P. C. 389. 
 
 [q) Gee v. Pritchard, 2 Swan. 402 ; Clark v. Freeman, 11 Beav. 112 ; 
 Prudential AsHurance Co. v. Knott, 10 Ch. App. 142. 
 
 (r) Thorlei/8 Cattle Food Co. v. Massam, 14 Ch. D. 763. 
 
 (s) See per Coleridge, L.CJ., in Bonnard v. Ferryman, [1891] 
 2 Ch. at p. 283.
 
 Injuries Eemediable by Injunction. 105 
 
 slanders {tf\ Thus, injuiictions have been granted to Art. 38. 
 
 restrain Hbels denying the vaHdity of an alderman's 
 
 election (n), or imputing " sweating " to a manufacturer (v) ; 
 
 and to restrain the placing of a portrait model of the 
 
 plaintiff in the "chamber of horrors" at an exhibition of 
 
 wax works. X However, the court is extremely chary of 
 
 granting interlocutory injunctions in cases of libel. ^>v^As 
 
 Lord Coleridge said in Bowiard v. Pcrryman {supra) : 
 
 " The right of free speech is one which it is for the public 
 
 interest that individuals should possess, and, indeed, that 
 
 they should exercise without impediment, so long as no 
 
 wrongful act is done ; and unless an alleged libel is untrue 
 
 there is no wrong committed ; but, on the contrary, often a 
 
 very wholesome act is performed in the publication and 
 
 repetition of an alleged libel. . . . We entirely approve 
 
 of, and desire to adopt as our own, the language of Lord 
 
 EsHER, M.E., in Coulson v. Coulson {x) : 'To justify the 
 
 court in granting an interim injunction, it must come to a 
 
 decision upon the question of libel or no libel, before the 
 
 jury have decided whether it was a libel or not. Therefore 
 
 the jurisdiction was of a delicate nature. It ought only 
 
 to he exercised in the clearest cases, ivhere any jury tvould 
 
 say that the matter complained of ivas lihellous, and tvhere if 
 
 the jury did not so find, the court wotdd set aside the verdict 
 
 as unreasonable.' " 
 
 Art. 39. — TJireafeiied lujnrij. 
 
 The court will not in general interfere until 
 an actual tort has been committed; but it may, 
 by virtue of its jurisdiction to restrain acts 
 which when completed will result in a ground 
 of action, interfere before any actual tort has 
 
 (t) Hermann Loorj v. Bean, 26 Ch. 1). 3(I0. 
 
 (m) Adatt V. Corporation of Southampton, 16 Ch. D. 148. 
 
 (f) Collard v. Mardiall, [1892] 1 Ch. 57 1. 
 
 (x) 3 T. L. R. 846. 
 
 H 2
 
 106 Of Injunctions to Prevent Continuance of Torts. 
 
 Art. 39. been committed, if it is satisfied that the act 
 complained of will inevitably result in a nuisance 
 or trespass (/y). 
 
 Illustrations. Thus, where a man threatens, or begins to do, or insists 
 upon his right to do, certain acts, the court will interfere 
 before any actual damage or infringement of any right has 
 actually taken place, if the circumstances are such as to 
 enable it to form an opinion as to the legality of the acts 
 complained of and the irreparable injury which will 
 ensue (z). An injunction will not, however, be granted in 
 a quia timet action unless the plaintiff makes out a strong 
 case of probability that the apprehended mischief will in 
 fact arise (a). Thus, where a proposed smallpox hospital 
 was 250 yards from the nearest house and 200 yards from 
 the nearest road, and the me'dical evidence was conflicting, 
 it was held that — in the absence of strong medical evidence 
 that the proposed hospital would be a nuisance — no injunc- 
 tion could be granted (a). 
 
 Art. 40.— Public Convenience does not justify 
 the continuance of a Tort. 
 
 It is no ground for refusing an injunction 
 that it will, if granted, do an injury to the 
 public. Even where Parliament has authorised 
 a public body to carry out a public w^ork, that 
 does not authorise the body to carry it out in 
 such manner or place as will cause a nuisance, 
 if it can he carried out otlierioise (h). 
 
 Illustrations. (1) Thus, in the case of Attorney-General v. BiimingJiavi 
 Corporation (c), where the defendants had poured their 
 
 {y) Kerr on Injunctions, p. 3.S!). 
 
 (z) Palmer v. Pavl, 2 L. .1. Ch. 1.34 ; EUiult \. North Euattni Rail. 
 Co., 10 H. L. Cas. .338. 
 
 (a) At/. -Gen. v. Mayor of Manchester, [1893] 2 Ch. 87 ; Aft. -Gen. v. 
 Corporation of Nottingham, [1904] 1 Ch. ()73. 
 
 (/)) See London, Brighton and South Coast Bail. Co. v. Truman, 
 11 App. Cas. 4.5. 
 
 (c) 4 K. & J. 528. But cf. Illust. (6), p. 104, supra.
 
 Public Convenience does Not Justify a Tort. 107 
 
 sewage into a river, and so rendered its water unfit for Art. 40. 
 drinking and incapable of supporting fish, it was held that 
 the legislature not having given them express powers to 
 send their sewage into the river, their claim to do so, on 
 the ground that the population of Birmingham would be 
 injured if they were restrained from carrying on their 
 operations, was untenable. 
 
 (2) But where Parliament has authorised works which 
 cannot be carried out without the creation of a nuisance, 
 the parliamentary authority is a good answer to an 
 action (d). On the other hand, where Parliament autho- 
 rised a public body to erect a smallpox hospital, but did 
 not authorise them to erect it in any particular place, it 
 was held that there was no justification for erecting it in 
 a place where it would be a nuisance (e). 
 
 (3) And where a railway company were forbidden by 
 statute to run trains across a level crossing at a greater speed 
 than four miles an hour, it was held that they had no right 
 to infringe this statutory provision, although it was for the 
 public benefit tliat they should do so ; and an injunction 
 was granted to restrain the continuance of the infringe- 
 ment (/). 
 
 Art. 41. — Mandatory Injun ctio7is. 
 
 Where an injunction is asked, not merely pro- 
 hibiting an act, but ordering some act to be done, 
 it in general requires a stronger case to be made 
 out than where a mere prohibition is asked for {g). 
 The court has power to grant it on an interlocu- 
 tory apphcation, but will not do so unless the 
 matter is very urgent (//), or unless the defendant 
 
 (fZ) Sec London, Bri<jhtnu and South Coa-^t Rail. Co. v. Truman, uhi 
 Hupi-a. 
 
 (e) Hill V. Mttvopolitan Asylumx Board, 6 App. Cas. 193. 
 
 (/) Att.-Otn. V. London and Xotfh We'^ttni Bail. Co., [1900] 
 1 Q. B. 78. 
 
 (;/) Durdl V. I'ritchard, L. R. 1 Cli. 244. 
 
 (/() Bonner v. Oreat Wfi^fern Bail. Co., 24 Ch. D. 1.
 
 108 Of Injunctions to Prevent Continuance of Torts. 
 
 Art. 41. ]2as wilfully ignored the rights which the plaintiff 
 claims (/), or has evaded service of the writ (A-). 
 
 Illustrations. (1) Thus, where a man has actually built a house which 
 interferes with his neighbour's ancient lights, the court will 
 not order him to take it down, except in cases in which 
 extreme, or at all events, very serious, damage would ensue 
 if its interference were withheld. For, in such case, the 
 injury to the defendant by the removal of his building 
 would generally be out of all proportion to the injury to 
 the plaintiff, and that is a consideration which ought to 
 have great weight (/). 
 
 (2) And so where an injunction was asked, ordering the 
 defendants to ptill dowai some new buildings, on two 
 grounds, namely, first, that a right of w^ay was obstructed 
 by the new^ buildings, and, secondly, that the new buildings 
 obstructed the light and air, it w^as held that no injunction 
 ought to be granted; because, as was said by Turner, L.J., 
 *' as to none of these grounds does it seem to me that there 
 is any such extreme or serious damage as could justify the 
 mandatory injunction which is asked. As to the first 
 ground, the right of way is not wholly stopped. The 
 question is one merely of the comparative convenience of 
 the right of way as it formerly existed, and as it now 
 exists. As to the second ground, I think that the diminu- 
 tioti of light and air to the plaintiff's houses is not such as 
 would warrant us in granting the relief which is asked " (vi). 
 
 , (3) But where, in a light and air case, the defendant, 
 after receiving notice of motion for an injunction, put on a 
 number of men who w^orked night and day, and ran up his 
 building to a height of nearly forty feet before he received 
 notice that the injunction had been granted, it was held by 
 the Court of Appeal that he ought to be ordered to restore 
 
 {i) Krehl v. Burre/f, 11 Ch. T>. 146. 
 
 (k) Von Jod V. Hornsey, [1895]2 Ch. 774 ; Danitl v. Ftr<ju.so», [1891] 
 2 Ch. 27. 
 
 (l) See iVrt<. Pror. Plate 67a.sv* Co. v. Prudtiitial As^. Co., 6 Ch. D. 
 761. 
 
 (wi) Durell v. Pritdmrd, L. R. 1 Cli. -244.
 
 Mandatory Injunctions. 109 
 
 the status qtio ante by pullin^f down the building at once, Art. 41. 
 without reference to the questions to be decided at the 
 trial (vi). 
 
 As to the modern foriii of a mandatory injunction, see 
 Jackson v. Normandy Brick Co. (o). 
 
 Aet. 4-2. ■ — DeJaij in Seeliing Belief. 
 
 A person who has not shown due diligence in 
 applying to the court for rehef, will, in general, 
 be debarred from obtaining an interlocutory 
 injunction ; but he will not be debarred from 
 obtaining an injunction at the hearing of the 
 cause, unless his delay has been of such long 
 duration as wholly to have deprived him of the 
 right which he originally had (7;). 
 
 {n) Daniel v. Ferguson, supra; and see Lawrence v. Horton, 38 W. R. 
 555 ; and Von Joel v. Hornsey, supra, 
 (o) [1899] 1 Ch. 438. 
 
 ip) Per Lord Langdale in Gordon \. Chdtenhum Rail. Co., 5 Bea. 
 233.
 
 ( no ) 
 
 CHAPTER X. 
 
 THE EFFECT OF THE DEATH OR BANKRUPTCY OF 
 EITHER PARTY. 
 
 Art. 43. — DeatJi c/enerally destroys the Biglit of 
 
 Action. 
 
 L 
 
 -X 
 
 (1) As a general rule, the right to sue, and the 
 liability to be sued, for torts, ceases with the life 
 of either party. 
 
 (2) This rule does not apply where the tort 
 consists of : 
 
 (a) The appropriation by the defendant of 
 
 property, or the proceeds or value of 
 property, belonging to the plaintiff (c/j ; 
 or 
 
 (b) An injury to real or personal property 
 
 committed hij the deceased within six 
 calendar months of his death {h) ; or 
 
 (c) An injury to real property of tJte deceased, 
 
 committed within six calendar months 
 of his death (c) ; or 
 
 (d) An injury to goods and chattels (including 
 
 choses in action of the deceased) {d) ; or 
 
 , ' (a) Phillips V. Homfray, 24 Ch. 1). 439. 
 
 (h) 3 & 4 Will. 4, c. 42, s. 2 ; see Kirlc v. Todd, 21 Ch. D. 484. The 
 action must be brought within six mouths of constitution of a personal 
 representative. 
 
 (r) Ihirl. The action must be l)r(jught within twehc months of death. 
 
 (d) 4 Kdw. 3, c. 7 ; 25 ¥a\\\. 3, c. o.
 
 Death Destroys Right of Action. Ill 
 
 (e) An injury causing- the death of the Art. 43. 
 deceased, if he or she leaves a wife, 
 husband, parent, or child (e). 
 
 (1) The rule is usually expressed in the form of a Latin Illustrations, 
 maxim, "actio personalis moritur cu m pprn a ua J.' Thus, if 
 
 one is assaulted or libelled, or assaults or libels another, 
 and dies ; in the one case the assaulter or libeller is 
 acquitted, and in the other the assaulted or libelled party 
 is left without any remedy, however severely he may have 
 been injured. 
 
 (2) The case of Hatcliard v. Megc (/) is an excellent 
 example of the rule under consideration. There it was 
 held that a claim for falsely and maliciously publishing a 
 statement, calculated to injure the plaintiff's right of pro- 
 perty in a trade mark, was put an end to by the death of 
 the plaintiff after the commencement of the action onhj so 
 far as it was a claim for libel ; but so far as the alleged 
 tort was in the nature of slander of title, the action survived, 
 and could be continued by his personal representative, who 
 would be entitled to recover on proof of special damage. 
 
 . It may be observed that, under paragraph (b), where an 
 action is actually pending, if the defendant dies pendente 
 lite, the action dies with him, unless the tort was com- 
 mitted within the six months immediately preceding his 
 death {(j). 
 
 ((') 9 & 10 Vict. c. 93, s. 1. As to this Act, commonly called Lord 
 Campijell's Act, vide infra. Art. 77. Strictly, such actions are not 
 survivals of a cause of action belonging to the deceased, but are 
 remedies for a statutory tort of a very special nature. This Act is 
 incorporated in the Employers' Liability Act (see Art. 25, and p. 72), 
 and the same principle is applied to claims under the Workmen's 
 Compensation Acts, 1897 and 190<>. See above, p. G3. 
 
 (/) 18 Q. B. D. 771. 
 
 (;/) Kirk V. Todd, iihi sujjra.
 
 112 Effect of Death, etc. of Either Party. 
 
 Art. 44. 
 
 Art. 44. — Effect of Banlrupfcjj. 
 
 (1) The right of action belonging to one who 
 becomes bankrupt, is not affected by his bank- 
 ru}3tcy, unless it causes actual loss to his estate, 
 in which case the right passes to his trustee {h). 
 
 (2) A right of action for tort against one who 
 becomes bankrupt, is not destroyed by the bank- 
 ruptcy, nor can the plaintiff prove in the bank- 
 ruptcy for compensation (/). 
 
 Illustrations. (1) Thus a bankrupt may, even during the continuance 
 of the bankruptcy, sue another for Ubel or assault, or for 
 seduction {k) ; and may, it is conceived, keep any damages 
 which he may recover for his own use and benefit (/). 
 
 (2) So in an action for trespass and seizure of goods in 
 whicli the plaintiff alleged damage to the goods, damage to 
 the premises, and personal annoyance to himself and his 
 family, and it was admitted that no substantial damage was 
 done to the premises or the goods, it was held that the 
 right of action did not pass to the trustee in bankruptcy {m). 
 
 (3) But where a tort in respect of property causes actual 
 damage, so as to inflict loss on the bankrupt's creditors, the 
 right of action passes to the trustee, and the bankrupt loses 
 the right of suing for the abstract tort to his right {n), 
 unless there were two distinct causes of action («). 
 
 (h) See Wruiht v. Fairfield, 2 B. & Ad. I'll ; Brrkham v. Drake, 
 •2 H. L. Cas. 57*9 ; Brewer v. Beir, 11 M. & W. fri.i ; IIo(lij.<on v. Sidney, 
 L. R. 1 Ex. 313 ; Ex parte Vine, 8 Ch. U. 3(54. 
 
 (i) 46 & 47 Vict. c. 52, s. 30 (2), and s. 37 ; Watson v. HoUiday, 
 20 Ch. 1). 780 ; 52 L. J. Ch. 543 ; Ex parte Stone, 37 W. R. %'. 
 
 [k) Beckham v. Drake, supra. 
 
 (I) Ex parte Vine, -supra. 
 
 (m) Bose V. Buckett, [1901] 2 K. B. 449. 
 
 [n) Brewer v. Z>e»f, 'iupra ; and Hodijson v. Sidney, supra.
 
 PART II. 
 
 RULES RELATING TO PARTICULAR TORTS.
 
 ( 115 
 
 CHAPTER I. 
 
 OF DEFAMATION. 
 
 Art. 45. — Definitions of Lihel and Slander. 
 
 (1) Libel is a false, defamatory and malicious 
 writing, picture, or the like, tending to injure 
 the reputation of another. 
 
 (2) Slander is a false, defamatory and mali- 
 cious oral statement tending to injure the 
 reputation of another. 
 
 (3) A libel is actionable without proof of 
 special damage. General damage, such as any 
 one suffers by loss of reputation, is enough to 
 support the action. Slander, on the other hand, 
 is not of itself actionable without proof of 
 special damage, except in the cases enumerated 
 in Art. 47. 
 
 (4) A corporation or a firm is as much entitled 
 as an individual to protection against defamation 
 calculated to affect its property or business, but 
 not against personal defamation {a). 
 
 It will be perceived that in order to found an action, Analysis of 
 whether for libel or slander, four distinct factors must be binder, 
 present. (1) The imputation conveyed by the writing, 
 picture or words must be false, for tnith is a good defence 
 to an action, or, in technical language, is a justification {h). 
 
 (a) South Helton Coal Co. v. N. E. News Association, [1S94] 1 Q. B. 
 133; Manchester {Mayor, etc.) v. Williams, [1891] 1 Q. B. 94. 
 
 (/>) Watkin V. Hall, L. R. 3 Q. B. 396 ; Goiuiey v. Plimsoll, L. R. 
 8 C. P. 362 ; Leyman v. Latimer, 3 Ex. D. 352.
 
 116 Of Defamation. 
 
 Art 45. (2) The imputation must be defamatory (c). (3) The 
 imputation must have been pubhshed. (4) And in the 
 case of slander, except in certain cases {d), but not of 
 libel, a fifth factor must exist, viz., special damage must be 
 proved. In the succeeding articles, questions which occur 
 as to the nature of defamatory imputations, publication, 
 and, in the case of slander, the nature of special damage, 
 i will be more fully elucidated. It suffices, at this point, 
 
 -->^ to say that if any one of the first three factors above 
 
 J enumerated in case of libel, or any one of the four in case 
 
 --!,. of slander, is absent, no tort has been committed. It is 
 
 sometimes said that to be actionable the libel or slander 
 must have been published " maliciously." As to this, see 
 above, p. 22, and ^^o^t^ Art. 50; and as to injunctions to 
 restrain libels, see Art. 38, supra. 
 
 Art. 46- — What is defamatory. 
 
 (1) Defamatory words or pictures or effigies 
 are such as impute conduct or qualities tending 
 to disparage or degrade the plaintiff {e) ; or to 
 expose him to contempt, ridicule, or public 
 hatred ; or to prejudice his private character or 
 credit (/) ; or to cause him to be feared or 
 avoided {g). 
 
 (2) A statement disparaging in intention, and 
 so reasonably understood by the person to whom 
 it was published, is none the less actionable 
 
 (c) Huhhockv. Wi7k!mo>i, [1S99] 1 Q. B. 87. 
 (rf) See Art. 47. 
 
 (e) Digby v. Thompson, 4 B. & Ad. 821. 
 (/) Fray v. Fray, 34 L. J. C. P. 4r). 
 
 {(j) r All-son V. Stuart, 1 T. K. 748 ; Walker v. Brogden, 19 C. B. 
 (n.s.) 65.
 
 What is Defamatory. 117 
 
 because, if taken literally, it would not be Art46. 
 defamatoiy (//)• 
 
 (1) Thus, describing another as an infernal villain is a Illustrations 
 disparaging statement sufficient to sustain an action (i) ; and J}gf^'^fj^''t^J:'^. 
 so is an imputation of insanity (k) ; or insolvency, or impe- words, 
 cuuiousness (/) ; or even of past impecuniousness (m) ; or of 
 
 gross misconduct {)i) ; or of cheating at dice (o) ; or of 
 ingratitude (_/;). 
 
 (2) So, reflections on the professional and commercial 
 conduct of another are defamatory ; as for instance, to say 
 
 of a physician that he is a quack. So, also, calling a / 
 
 newspaper proprietor "a libellous journalist" is defama- 
 tory (q) ; although it would appear that applying the word 
 "Ananias" to a newspaper does not necessarily impute 
 wilful and dehberate falsehood to its manager and pro- 
 prietor {)■). 
 
 (3) So, again, it is libellous to call even an ex-convict a 
 felon ; for one who has endured the punishment for felony 
 is, by 9 Geo. 4, c. 32, s. 3, no longer a felon in point of 
 law (.s). 
 
 (4) A statement may be none the less defamatory because Illustrations 
 it is in the form of an ironical compliment. Thus, if one ^efamatwy"^ 
 said of another that he was so valuable a citizen that the words. 
 Government had entertained him at Portland for a consider- 
 able period, at the public expense, meaning thereby, and being 
 
 (h) Capital and Comities Bank v. II<-ut>/, 7 App. Cas. 741. 
 (i) BM V. Stone, 1 B. & P. 331. 
 (A-) Morr/an v. Lingen, 8 L. T. (N.s.) 800. 
 
 {/) Metropolitan Saloon Omnibus Co. v. Hawkins, 28 L. J. Ex. 201 ; 
 Eaton V. Johns, 1 Uowl. (x.s. ) 602. 
 (to) Cox v. Lee, L. R. 4 Ex. 284. 
 {n) Clement v. Chivis, 9 B. & C. 172. 
 (o) Greville v. Chapman, 5 Q. B. 744. 
 ( p) Cox v. Lee, supra, 
 {q) Wakley v. Cooke, 4 Ex. 518. 
 
 (r) Australian Newspaper Co. v. Bennett, [1894] A. C. 284. 
 (s) Leyman v. Latimer, 3 Ex. D. 352.
 
 118 Of Defamation. 
 
 Art. 46. understood to meaii, that he had been sent to penal 
 servitude, that would clearly be defamatory. 
 
 Words (,5) So, inserting the plaintiffs' names under the head of 
 
 clefamatOTv. " ^^'^^ meetings under the Bankruptcy Act " is libellous, 
 
 the innuendo being that the plaintiffs had become bankrupt, 
 
 or taken proceedings in liquidation (t). 
 
 Effigy. ' (6) The exhibition of the waxen effigy of a person 
 
 who has been tried for a murder and acquitted, in 
 company with the effigies of notorious criminals, may be 
 defamatory [u). 
 
 (7) So, again, there may be facts known to the person 
 publishing the libel or slander, and the person to whom it 
 is published, which make an apparently innocent statement 
 bear a secondary, and decidedly defamatory, construction. 
 For instance, a statement that the speaker saw the plaintiff 
 at Portland some years since, is primarily innocent enough ; 
 but if the surrounding circumstances were such as to 
 convey to the person to whom the words were addressed 
 the insinuation that the speaker had seen the plaintiff 
 working at Portland as a convict, the mere absence of a 
 direct statement to that effect would not be sufficient to 
 excuse the speaker. It must, however, be borne in mind 
 that where a secondary meaning is to be imputed, it is 
 necessary that the facts should be known both to the person 
 who makes the statement and to the persons to whom it 
 is published ; because, if facts are known to the latter from 
 which they might reasonably suppose that the document 
 is defamatory, but those facts are not known to the person 
 who wrote it, if he were held liable he would be made liable 
 for doing that which he could have no reason to suppose 
 would injure anybody, the language used being such as in 
 its ordinary sense would not be defamatory of any one. 
 Again, if there are facts known to the person who makes the 
 statement, which, if known to the persons to whom it is 
 made, might reasonably lead them to suppose that it was 
 
 (t) Shepheard v. Whitaker, L. R. 10 C. P. 502. 
 (It) MonaoH V. Tussaud, [1894] 1 Q. B. 672.
 
 What is Defamatory. 119 
 
 used in an ironical sense, yet, if those facts are not known Art. 46. 
 to the persons to whom it is made, that which is stated, 
 although stated inadvertently or maliciously, could produce 
 no effect upon their minds. Though the act might be 
 negligent or wrongful on the part of the person making the 
 statement, the person who received it would have no 
 reasonable ground for understanding it in any evil sense (x). 
 
 (8) When a firm of brewers sent out to their customers Words 
 
 a circular in the following terms : " Messrs. Hentv & Sons in*J"'^^% 
 , , . . "^ defamatory. 
 
 hereby give notice that they will not receive in payment 
 
 cheques drawn on any of the branches of the Capital and 
 Counties Bank," it was held that there was no evidence 
 that the circular was defamatory even indirectly, and was 
 not actionable although its eii'ect had been to cause a run 
 on the bank and loss to the plaintiff's (?/). In that case, 
 Brett, L.J., in the Court of Appeal, laid dow^n the rule as 
 to indirectly defamatory words as follows (^) : "The first 
 question for the jury is whether the document would be 
 read in a defamatory sense by persons of ordinary reason 
 in the position of those to whom it is published. If, in the 
 opinion of the jury, it would not be so read according to 
 the inimd facie meaning of the language, then there is 
 a further question (if there is any evidence upon which it 
 can be raised) whether there were facts known both to the 
 persons who framed the alleged libel and to the persons to 
 whom it was published, which would lead the latter reason- 
 ably to put upon the document the construction that, 
 having a secondary defamatory sense, it was issued ironically 
 or otherwise than in the primary sense of the language." 
 And the court held that in that case there was no such 
 evidence. Of course, if there had been, and the jury had 
 found that there were facts known to the writer and the 
 persons to whom the circular was published, which would 
 have given it a secondary defamatory meaning, the plaintifi's 
 would have succeeded. 
 
 (.v) Capital ami. Coviitiis Bank v. Htnty, ^^ C. P. D. 515 ; 7 App. Cas. 
 741. 
 
 (.»/) Capital and Count its Bank v. Henty, 7 App. Cas. 741. 
 (:) 5 C. P. D., at p. 539.
 
 120 
 
 Of Defamation. 
 
 Art. 46. (9) But in a later case it was held that a circular seut 
 
 out by an insurance company for which the plaintiff had 
 acted as agent, to the effect that the agency of the plaintiff 
 had "been closed by the directors," although untrue was 
 incapable of even an indirectly defamatorj^ meaning (a). 
 
 Corporations. (10) It is actionable without special damage to say of 
 a colliery company that the cottages let by the proprietors 
 to their workmen are in an insanitary condition, for such 
 an imputation is likely to injure its reputation in the way 
 of its business (6). But inasmuch as a corporation, as 
 distinguished from the individuals composing it, cannot be 
 guilty of corrupt practices, it is not libellous without proof 
 of special damage to charge a municipal corporation with 
 corrupt practices (c). 
 
 (11) It would seem that a false statement disparaging a 
 tradesman's goods does not fall within the law of libel at 
 all, as it has been held that it is not actionable (although in 
 writing) without proof of special damage (d). And the mere 
 statement by one tradesman that his goods are superior to 
 those of another, even if it be malicious and untrue, and 
 causes loss, is not actionable (c). 
 
 Actions of this kind are analogous to actions for 
 slander of title, which are not really actions for defama- 
 tion. An action for slander of title only lies for a false 
 statement disparaging the plaintiff's title to property made 
 
 Trade libels. 
 
 Disparaging 
 a tradesman's 
 goods. , 
 
 Slander of 
 title. 
 
 maliciously (/). 
 
 /( 
 
 (a) Xei-ill V. Fine Art Insuranct Co., [1897] A. C. 68. 
 (6) South Helton Ccal Co., Limited v. ^Vo;Y/t Ea-'^tern yeics A'^socia- 
 tion, [1894] 1 Q. B. 133. 
 
 (c) Mayor, etc. of Manchester \. Williams, [1891] 1 Q. B. 94. 
 
 (d) White V. Mellin, [1895] A. C. 154. 
 
 (e) Huhhuck d- Co. v. Wiltimon db Co., [1899] 1 Q. B. 86. 
 (/) See Wren v. Weild, L. R. 4 Q. B. 730.
 
 Special Damage Essential to Action for Slander. 
 
 121 
 
 "t>- 
 
 Art. 47. 
 Art. 47. — Special Damage essential to Action — 
 
 (1) Except in the following cases spoken 
 words are not actionable without proof of special 
 damage, and the damage complained of must be 
 such as might fairly and reasonably have been 
 anticipated from the slander (/y). 
 
 (2) No proof of special damage need be given 
 in the case of words imputing : 
 
 (a) A criminal offence (//) ; 
 
 (b) Some disease tending to exclude the party 
 
 defamed from society (/) ; 
 
 (c) Unchastity in a female (/i) ; 
 
 (d) Unfitness of the plaintiff for his profession 
 
 or trade, or office of profit (/) ; 
 
 (e) Dishonesty or malversation in a public 
 
 office of trust {tn) ; or 
 
 (f) Misconduct in an office of credit or honour 
 
 such as would be ground for his removal 
 from office {u). 
 
 (1) It was at one time considered that the special damage Damage must 
 
 must be the lesial and natural consequence of the vvords )^^ "''^^'■"''^^» 
 
 '^ ^ ,, . but not 
 
 spoken, and consequently, that it was not surhcient to necessarily 
 
 sustain an action of slandeivto prove a mere wrongful act ^^o**^' ^""" 
 
 . A seijuence oi 
 
 of a thn'd party induced by the slander ; ex. (jr. that a third slander. 
 
 party had dismissed the plaintiff from his employment 
 
 (;/) Lynch v. Knight, 9 H. L. Cas. 577. 
 
 (h) Wthh V. Beavan, 11 Q. B. D. (509. 
 
 (/) Blood worth v. Grat/, 7 M. &V>. 334. 
 
 (/.•) Slander of Women Act, 1891. 
 
 (/) Foidijrr V. Ntwcomh, L. R. 2 Ex. 327. 
 
 [m] Booth V. Arnold, [189.5] 1 Q. B. 571. 
 
 (k) Omlow V. Home, 2 W. Bl. 750.
 
 122 Of Defamation. 
 
 Art. 47. before the end of the term for which they had contracted (o). 
 However, that view of the law can no longer be considered 
 accurate, having been dissented from in several cases, 
 particularly in Liimleij y. Gijc{i)) and Lynch v. Knight [q). 
 In the latter case Lord Wensleydale said : "To make 
 the words actionable by reason of special damage, the con- 
 sequence must be such as, taking human nature as it is, 
 with its infirmities, and having regard to the relationship 
 of the parties concerned, might fairly and reasonably have 
 been anticipated and feared would follow from the speak- 
 ing of the words, not what would reasonably follow% 
 as we might think ought to follow. ... In the 
 case of Vicars v. Wilcocks, I must say that the rules 
 laid down by Lord Ellenborough are too restrictive. I 
 cannot agree that the special damage must be the natural 
 and legal consequence of the words, if true. Lord Ellen- 
 borough puts an absurd case, that a plaintiff could recover 
 damages for being thrown into a horse-pond as a consequence 
 of words spoken ; but, I owm, I can conceive that, when the 
 public mind was greatly excited on the subject of some 
 base and disgraceful crime, an accusation of it to an 
 assembled mob might, under particular circumstances, very 
 naturally produce that result, and compensation might be 
 given for an act occurring as a consequence of an accusation 
 of that crime." But the act of the third person causing 
 the loss to the plaintiff must be the natural result of the 
 slander. So where the defendants said of the plaintiff that 
 the plaintiff had removed from premises leaving rent due 
 to his landlord, and the plaintiff alleged that in consequence 
 thereof his employer dismissed him, it was held that the 
 damage alleged was too remote, and that an action for 
 slander would not lie (?■). 
 
 Damage ^2) If the damage be iinmediatelv caused bv the plaintili 
 
 causetl bv ^ ' ^ . " i " , i 
 
 plaintiff" himself, he cannot sue. For mstance, where the plaintiff 
 
 himself. ^.j^ young woman) told the slander to her betrothed, who 
 
 (o) Vicara v. Wilcocks, 2 Sm. L. C. 534. 
 
 ( p) 2 E. & B. 216. 
 
 (r/) 9 H. L. Cas. 577. 
 
 (r) Speake v. Hicjhcs, [1<)04J 1 K. l'>. 138.
 
 Special Damage Essential to Action for Slander. 128 
 
 consequently refused to marry her, it was held that no Art. 47. 
 action would lie against the slanderer (s). 
 
 (3) Formerly, words imputing unchastity to a woman were J^'^^PJ^^*,^^^™ , 
 not actionable without proof of special damage except in'* ^i"^^''^^ ^ >• 
 the city of London. But by the Sla_nder .of_Women Act, 
 
 1892 (t), this scandalous state of the law has been altered, 
 and it is enacted that words spoken and published which 
 impute unchastity or adultery to any woman or girl, shall 
 not require special damage to render them actionable : 
 provided that the plaintiff shall not recover more costs 
 than damages, unless the judge certifies that there was 
 reasonable cause for bringing the action. 
 
 (4) But, even before the Slander of Women Act, it 
 
 was held that an action brought by a trader, alleging that jj^ ^Jt^ ) 
 defendant falsely and maliciously spoke and published of his \ 
 wife, who assisted him in his business, certain words accusing 
 her of having committed adultery upon the premises where be 
 resided and carried on his business, whereby he wa.s injured 
 in his business, and certain specified and other persons who 
 had previously dealt with him ceased to do so, was main- 
 tainable on the ground that the injury to his business was 
 special damage, the natural consequence of the words (it). 
 
 (5) The words, " You are a rogue, and I will prove you Examples 
 
 a rogue, for you forged my name," are actionable ^jcr se{x). "j^jj^ffrom 
 And it is immaterial that the charge was made at a time imputation 
 when it could not cause any criminal proceedings to be °^ ^""^'^• 
 instituted. Thus the words "You are guilty" [innuendo 
 " of the murder of D."] are a sufficient charge of murder to 
 support an action without proof of special damage (y). But ' -■^'^^j 
 if words charging a crime are accompanied by an express ^^^-^U. 
 
 allusion to a transaction which merely amounts to a civil 
 injury, as breach of trust or contract, they are not action- 
 able {z). Nor are words imputing an impossible crime, as 
 
 (s) SjM'iiihf V. Gosuat/, 60 L. .T. Q. B. 231. 
 
 (/) :A & 'm Vict. u. 51. 
 
 ((() Biding v. Smith, 1 Ex. Div. 01. 
 
 (,f) Jones V. Heme, 2 Wils. S7. 
 
 ((/) Peake v. Oldham, W. Bl. 959. 
 
 (-) Per ELLKNEOROUfiH in Thompson v. Barnard, 1 Camp. 48 ; and 
 }ii r Kenyon, Christie v. Con-ell, Peake, 4. 
 
 ■V^-Wk''
 
 124 
 
 Of Defamation. 
 
 Art. 47. 
 
 Examples 
 of damage 
 implied from 
 imputation 
 of unfitiiess 
 for society. 
 
 Examples [ 
 of damage i 
 implied from 
 imputation 
 of unfitness 
 for business 
 or office of 
 profit. 
 
 "Thou hast killed my ^Yife," who, to the knowledge of 
 all parties, was alive at the time (a). 
 
 (6) The allegation, too, must be a direct charge of 
 punishable crime (b). Thus, saying of another that he had 
 forsworn himself is not actionable 2}er se, without showing 
 that the words had reference to some judicial inquiry (c). 
 So where the plaintiff's pleadings alleged that the defendant 
 called the plaintiff a " welsher " (meaning a person who dis- 
 honestly appropriates and embezzles money deposited with 
 him) ; and the evidence showed that a " welsher " is a 
 person who receives money which has been deposited to 
 abide the event of a race, and who has a predetermined 
 intention to keep the money for himself, it was held that, 
 as the word did not necessarily impute the offence of 
 embezzlement, it did not imply a criminal offence, and so 
 was not actionable without special damage (//). But an 
 imputation that the plaintiff had brought a blackmailing 
 action is actionable without proof of special damage, for by 
 inference it imputed to the plaintiff that he was guilty of 
 an indictable offence (c). 
 
 (7) So words imputing mere suspicion of a crinie are not 
 actionable without proof of special damage (/ ). 
 
 (8) Again, to allege the present possession of an infectious, 
 or even a venereal, disease is actional^le, but a charge of 
 past infection is not ; for it shows no present unfitness for 
 society (r/). 
 
 (9) It is quite clear that, as regards a man's business, or 
 profession, or office, if itjjc an office of itrofit, the mere 
 imputation of want of ability to discharge the duties of that 
 office, is sufficient to support an action. It is not necessary 
 that there should be imputation of immoral or disgraceful 
 
 (a) Snatj v. Gee, 4 Co. Rep. 16 ; Htmi)i(i v. Pon 
 (h) Lemon v. Simmons, 57 L. J. Q. B. 200. 
 (f) Holt V. Sdw/efield, 6 T. R. 691. 
 
 (d) Blackman v. Bryant, 27 L. T. 491. 
 
 (e) Marks v. Samuel, [1904J 2 K. B. 287. 
 {/) SimmouK v. Mitchell, 6 App. Cas. 1,">G. 
 
 (gr) See Carslake v. Mappledaram, 2 T. K. 47.'> : 
 7 M. & G. 334. 
 
 1(1 M. & ^Y. .')(5'.). 
 
 IVoodirorlh v. (imy.
 
 Special Damage Essential to Action eor Slander. 125 
 
 I conduct ; the probability of pecuniary loss from such imputa- Art. 47. 
 
 j tion obviates the necessity of proving special damage. But 
 the mere disparagement of a tradesman's goods is not 
 sufficient. The disparagement must be of his unfitness for 
 business (/i), or some allegation ■which must necessarily 
 injure his business (i). Thus, words imputing drunkenness 
 to a master mariner whilst in command of a ship at sea 
 arc actionable ^jc/- se (^•). And similarly where a clergyman 
 is beneficed or holds some ecclesiastical office, a charge of 
 incontinence is actionable ; but it is not so if he holds no 
 ecclesiastical office {/). 
 
 So to say of a surgeon " he is a bad character ; none of 
 the men here will meet him," is actionable (m). Or of an 
 attorney that " he deserves to be struck off the roll " (n). 
 But without special damage it is not actionable to impute 
 to a solicitor insolvency (o), or to say " he has defrauded 
 his creditors, and been horsewhipped off the course at 
 Doncaster," because this has no reference to his pro- 
 fession (j)). But this seems a curious refinement. A 
 similarly absurd distinction has been taken between saying 
 of a barrister " He hath as much law as a jackanapes " 
 (which is actionable j^cr se) and " He hath no more wit than 
 a jackanapes" (which is not actionable). The point being 
 that law is, but wit is not, essential in the profession of a 
 counsellor (q). 
 
 (iO) With regard to slander upon persons holding mere Unfitness 
 
 offices of honour, the loss of which would not necessarily fi°*^^^ 
 
 '' or honour 
 
 mvolve a pecuniary loss, the mere imputation of w^ant of and credit, 
 ability or capacity is not enough. The imputation to be 
 
 (h) See Whift v. Me/llii, [189-5] A. C. 154. 
 
 (i) See RoyaJ Bakiii;/ Poa-dcr Co. v. Wriglit, Crosslo.y ib Co., 15 Rep. 
 Pat. Cas. 077. 
 
 (/.•) Irwin, V. Bramliuood, 2 H. & C. 9GCt ; .3;? L. J. Ex. 257. 
 
 (/) (InUwty V. Mar.-ihall, 23 L. J. Ex. 78. 
 
 (m) Southte V. Denny, 17 L. J. Ex. 151 ; 1 Ex. 196. 
 
 (n) Phillips V. Jansen, 2 Esp. 264. 
 
 (0) Ikinncqj v. Holloimy, [1901] 2 K. B. 441. 
 
 {!>) See also Jenner v. A' Beckett, L. R. 7 Q. B. 11 ; and Miller v. 
 Dai-id, L. R. 9C. P. 118. 
 
 iq) See per Polt.ock arf/itendo, Ayre v. Craven, 2 Ad. & Ell. 4.
 
 126 Of Defamation. 
 
 A.rt. 47. actionable per sc, must be one which, if true, would show 
 that the plaintiff ought to be and could be deprived of his 
 office by reason of the incapacity imputed to him. The 
 implied damage is the risk of loss of the office which he 
 holds. Thus, an imputation of drunkenness against a town 
 councillor is not actionable without proof of special damage. 
 For such conduct, however objectionable, is not such as 
 would enable him to be removed from, or deprived of that 
 office, nor is it a charge of malversation in his office (r). 
 But a charge of dishonesty in his office, against one who 
 holds a public office of trust, such as that of an alderman 
 of a borough, is actional^le without special damage, even 
 although there be no power to remove him (.s). The 
 American Courts have held that to say of a magistrate 
 (apparently an unpaid one), that " He is a damned fool of a 
 justice," is actionable jyer se {t). It seems somewhat curious 
 that the point has nevei- arisen here, where a similar form 
 of defamation is far from unusual ; but, perhaps, our magis- 
 trates are less sensitive, and more sensible. 
 
 \ 
 
 Akt. 48. — Publication. 
 
 The making known, knowingly or negligently, 
 of a libel or slander to any person other than the 
 object of /(, is publication in its legal sense. 
 
 Publication | (1) " Though, in common parlance, that word [publica- 
 
 explamed.^ j tion] may be confined to making the contents known to the 
 
 "'■*—! public, yet its meaning is not so hmited in law. The making 
 
 ^ \ of it known to an individual is indisputably, in law, a 
 
 i publishing" (m). Pubhcation, therefore, being a question 
 
 of law, it is for the jury to find whether the facts by which 
 
 it is endeavoured to prove publication are true ; but for the 
 
 (r) Alexandtr v. Jenkin.-i, [1892] 1 Q. B. 797. 
 
 (8) Booth V. Arnold, [1895], 1 Q. B. 571. 
 
 [t) Spiering v. Andrea, .30 Am. Law Rep. 744. 
 
 (h) Rex V. Burdett, 4 B. & Aid. 143.
 
 Publication. 127 
 
 court to decide whether those facts constitute a pubHcation Art. 48. 
 in point of hiw (.r). 
 
 (2) If the hbel be contained in a telegram, or be written Telegrams ' 
 on a post card, that is pubHcation, even though they be |!"[.^^°^ I 
 addressed to the party hbelled ; because the telegram must 
 
 be read by the transmitting and receiving officials, and the 
 post card will in all probability be read by some person in 
 the course of transmission (y), unless the statement on the 
 post card is of such a nature that it would not be understood 
 as defamatory by persons reading it casually (z). 
 
 (3) So, dictating a libellous letter to a typewriter, and Dictating 
 giving it to an office boy to make a press copy, is publica- 
 tion (a). But where a solicitor acting for a client dictated 
 
 a defamatory letter addressed to the plaintiff, it was held 
 that the occasion was privileged, publication to clerks being 
 necessary and usual in the discharge of his duty as a 
 solicitor (b). 
 
 (■1) But the vendor of a newspaper in the ordinary course, Newsvendors 
 though he is lyrimd facie liable for a libel contained in it, is ''*'" ' lanes. 
 excused if he can pi'ove (1) that he did not know that it 
 contained a libel, (2) that his ignorance was not due to any 
 negligence on his own part, and (3) that he had no ground for 
 supposing that the newspaper was likely to contain libellous 
 matter (c). 
 
 (5) There is, also, an exception to the rule, in the case of Husband 
 a husband communicating a libel or slander to his wife. '^"*^ ^^^^' 
 Such a communication is not a "publication" of the 
 defamatory statement, l)ecat][s^,. in the eye of the law, 
 husband and wife are one person {d). The converse does 
 
 (x) Street v. Licensed Vktualleni Society, -ll W. R. .5.13 ; Hart v. Wall, 
 2 C. P. D. 146. 
 
 (y) Williai)mm v. Freer, L. R. 9 C. P. 393. 
 
 (:) Saff'jrnr, y. Hole, [1901] 2 K. B. 1. 
 
 [a] full mail v. ///// <t' Co., [1891] 1 Q. B. .')24. 
 
 (h) Boxsin^ V. Gohlet^J^y^re-s, [1894] 1 Q. B. 842. 
 
 (c) Emmen.'< v. Pottle'iQ Q. B. D. .354 ; Vhetelh/ v. Mndie's Select 
 Lihrary, Limited, [1900] 2 Q. B. 170. 
 
 ul) Weindmk v. Monjan, 20 Q. B. 1). (53.").
 
 128 
 
 Of Defamation. 
 
 Art. 48. not, however, hold good, so that if a defamatory statement 
 
 be made to the wife of the plaintijj, that is a sufficient 
 
 pubHcation to sustain an action ((>). 
 
 Aet. 49. — Jiistr^AmiioK. 
 
 That the statements complained of as de- 
 famatory are true in fact is an absohite defence 
 in an action of defamation. 
 
 Proof of (1) The bui-den of proving a defence of justification lies on 
 
 justification, ^^lq defendant : and if justification be set up it must be strictly 
 proved, and it is not enough to say that the statements are 
 partly or in the main true. The plaintiff must prove that 
 the facts alleged in justification are at any rate substantially 
 true in every material particular. Nor is it enough to show 
 that the plaintiff had a general reputation for the misconduct 
 alleged. It must be proved that in fact he was guilty of 
 the misconduct (/). 
 
 (2) LiTTLEDALE, J., thus explains the principle of the 
 defence of justification : "If the defendant relies upon the 
 truth as an answer to the action, he must plead that matter 
 specially ; not because it negatives the charge of mahce (for 
 a person may ..\yrongfully or maliciously utter slanderous 
 matterr,'tWigh^true, and thereby subject himself to an 
 indictment), but because it shows that the plaintiff is not 
 entitled to recover damages. For the law will not permit a 
 man to recover damages in respect of an injury to a 
 character which he either does not, or ought not to, 
 possess " {(j). 
 
 (3) Closely akin to the defence of justification is that of 
 fair criticism of a matter of public interest. It was at one 
 time considered, that criticisms on matters of public interest, 
 such as books, works of art, plays, the acts of public men, 
 
 Explanation 
 of justifica- 
 tion. 
 
 cutkjsni. 
 
 (ft) Wtnman v. Asli, l.S C. B. 836. 
 
 (/) Wood V. Diirhnm, 21 Q. B. 1). .')I>1. 
 
 (7) See M'Pher)<ou v. Danieh, Id B. i^: C. -ili.H, at p. -Irl.
 
 Justification. 
 
 129 
 
 and the like, were privileged communications, and that Art. 49. 
 proof of actual malice was necessary in order to give rise to 
 an action by the person criticised. This is, however, no 
 longer the law. The true rule, as laid down by the Court 
 of Appeal in Merivah v. Carson (h), is, that where an action 
 of libel is brought in respect of comment on a matter of 
 public interest, the case is not one of privilege properly so 
 called, and it is not necessary in order to give a cause of 
 action, that actual malice should be proved. The question 
 is one for the jury, whether the disparaging statements go 
 beyond the limits of fair criticism. In other words, "Is 
 the article, in the opinion of the jury, beyond that which 
 any fair man, however prejudiced or however strong his 
 opinion may be, would say of the work in question ? Every 
 latitude must be given to opinion and to prejudice, and then .^ _ 
 
 an ordinary set of men, with ordinary judgment, must say 
 whether any fair man would have made such a comment 
 on the work. It is very easy to say what would be clearly 
 beyond the limit ; if, for instance, the writer attacked the .^' 
 
 private character of the author. But it is much more 
 difficult to say what is within the limit. That must depend ^'-O 
 
 upon the circumstances of the particular case. . . . Mere 
 exaggeration, or even gross exaggeration, would not make J 
 
 the comment unfair. However wrong the opinion expressed 
 may be in point of truth, or however prejudiced the writer, " 
 
 it may still be within the prescribed limit " (/). ) 
 
 Lord Tenterden, in a passage in his judgment in ^^_J^ 
 Macleody. WaUey (k), quoted with approval by Bowex, L.J., 
 in the above case, said: "Whatever is fair, and can be 
 reasonably said of the works of authors or of themselves as 
 connected with their icorks, is not actionable unless it 
 appears that, under the pretext of criticising the works, the 
 defendant takes an opportunity of attacking the character of 
 the author." 
 
 So, comment on a musical play which a jury may not 
 think to be a just or reasonable appreciation of the work 
 
 (h) -20 Q. B. D. 275. 
 
 (/) Per Lord Ksuek, M.R., in .Ufrhxifi- v. Car.'<0]i, 20 Q. B. D. 2<.). 
 
 (A) 3 C. & P. 3i;^.
 
 180 
 
 Of Defamation. 
 
 Art. 49. 
 
 Criticism of 
 public men 
 
 criticised, is nevertheless not libellous if it is an expression 
 of honest opinion and does not go beyond the limits of 
 which may fairly be called criticism (/). 
 
 Under these principles, not only books and works of 
 art, but even tradesmen's advertisements may be fairly 
 criticised (vi). 
 
 So, too, fair criticism is allowed upon the public life of 
 public men, or men filling public offices ; such as the con- 
 duct of public worship by clergymen (n) : provided such 
 criticism does not touch upon their private lives (o), or 
 impute, without any foundation in fact, base and sordid 
 motives (p). And the same rule applies to fair criticism of 
 the past exploits of one who is endeavouring to push a 
 scheme of national importance ((/). But although the 
 acknowledged or proved public acts of public men may be 
 lawfully criticised, that gives no right to publish false and 
 defamatory statements of facts, unless, of course, they are 
 published in the course of parliamentary or judicial 
 proceedings (r). 
 
 Art. 50. — Malice and Frivilege. 
 
 (1) The publication of defamatory matter is 
 pruiid facie wrongful ^vithout proof of actual 
 malice. 
 
 (2) No action lies for a statement made upon 
 an occasion which is absolutely privileged, 
 although made maliciously. Judicial, Parlia- 
 mentary and State proceedings are occasions of 
 absolute privilege. 
 
 (/) MrQuire v. Western Morning Xbu-.-i, [l!)ri3] 2 K. B. lOf). 
 (m) ParU v. Lery, 30 L. J. C. P. 11. 
 (;0 Ktlly V. Tinlinr/, L. R. 1 Q. B. 099. 
 
 (o) Gathercokv. Miafl, 15 M. & W. 319; Odjcr v. Mortimer. 28 L. T. 
 472. 
 
 (2>) Joynt V. Cijde Trade PuhliHhim) Co., [1904] 2 K B. 292. 
 [q] h'enii-ood v. Harrison, L. R. 7 C. P. 006. 
 (/') Dnrisv. She.pstone, 11 App. Cas. 1S7.
 
 Malice and Privilege. 131 
 
 y (8) No iictioii lies for ;i privileged comiiiunica- Art. 50. 
 
 ' tion, i.e., for a coiiiiiiunieation made upon an 
 occasion of qualitied privilege and fairly warranted 
 by it^j unlegs it be proved to have been made 
 
 jmalicimisly in fact (.v). 
 
 (4) Communications are made upon privileged 
 occasions if made by a person in discharge of 
 some public or private duty, whether legal or 
 moral, or in the conduct of his own affairs in 
 matters where his interest is concerned. Such • 
 communications, if fairly w^arranted by any 
 reasonable occasion or exigency and honestly 
 made, are protected for the common convenience 
 and welfare of society (f). 
 
 (-3) It is the duty of the judge to determine 
 whether an occasion is privileged or not, and if 
 it is, and there is no evidence of actual malice 
 to go to the jury, he must enter judgment for the 
 defendant (ii). 
 
 (6) The question whether a communication 
 made upon a privileged occasion is privileged or 
 not, [i.e., whether the communication is fairly 
 warranted by the occasion and made without 
 actual malice\ is for the jury (.r). 
 
 (7) If the occasion is privileged the onus is on 
 the plaintiff to prove malice, i.e., "actual malice " 
 or " malice in fact " (y). 
 
 (8) A connnunication is made maliciously in 
 fact if made from an indirect motive, such as 
 anger or ill-will, or any unjustifiable intention 
 
 {■S-) Stuart V. Bell, [1891] 2 Q. B. .S41. 
 
 {t) See Toofjood v. Spyring, 1 C. Al. & K., p. lO-'i- 
 
 («) Clark V. Molyneux, 3 Q. B. D. 246. 
 
 (.f) Cookt V. Wildes, 3 E. & B. .S28, and per Loi-ES, L.J., in Piil/- 
 man v. Hill cL- Co., [1891] 1 Q. B. 529. 
 
 (y) Clark v. Molyneux, 3 Q. B. 1). 237 ; Jeiiourc v. Delvwj., [1891] 
 A. C. 73.
 
 132 
 
 Of Defamation. 
 
 Art. 50. 
 
 Malice and 
 privilege. 
 
 to inflict injury on the person defamed, but if a 
 person make a statement believing it to be true 
 he will not lose the protection of the privileged 
 occasion, although he have no reasonable grounds 
 for his belief (*). 
 
 Unless the statement was made on a privileged occasion, 
 malice is said to be presumed, or more accm-ately, malice 
 need not be proved, as it is no part of the cause of action (a). 
 Proof of actual malice is only necessary when the defendant 
 successfully sets up quahfied privilege, and the plaintiff 
 seeks to show that the defendant cannot shelter himself 
 behind the privilege. " If," says Brett, L.J., in Clark v. 
 Molyneux {b), " the occasion is privileged it is so for some 
 reason, and the defendant is only entitled to the protection 
 of the privilege if he uses the occasion for that reason. He 
 is not entitled to the protection if he uses the occasion for 
 some indirect and wrong motive. If he uses the occasion 
 to gratify his anger or his malice he uses the occasion not 
 for the reason which makes the occasion privileged, but for 
 an indirect and wrong motive. . . . Mahce does not 
 mean malice in law, a term of pleading, but actual malice, 
 that which is popularly called malice. If a man is proved 
 to have stated that which he knew to be false, no one need 
 inquire further. Everybody assumes thenceforth that he 
 was malicious, that he did do a wrong thing from some 
 wrong motive. So, if it be proved that out of anger or for 
 some other wrong motive, the defendant has stated as true 
 that which he does not know to be true, and he has stated 
 it whether it is true or not, recklessly, by reason of his 
 anger or other motive, the jury may infer that he used the 
 occasion not for the reason which justifies it, but for the 
 gratification of his anger or other indirect motive." 
 
 (1) Speeches in Parliament are absolutely and irrebuttably 
 privileged (c) ; and a faithful report in a public newspaper 
 of a debate of either House of Parliament, containing matter 
 
 (z) Clark \. Moh/uenx, 3 Q. B. 1). :237 ; Royal Aqtuirinm Soviet i/ v. 
 Parkinson, [1892] l" Q. B. 434. 
 
 («) See ^iipra, p. 22. {'>) 3 Q. B. L)., at p. 246. 
 
 (f) Stockduk V. Hansard, 9 A. & E. 1 ; Dillon v. Ba/four, 20 L. R. Ir. 
 (iiil.
 
 Malice and Privilege. 133 
 
 disparaging to the character of an individual which had Art. 50 
 been spoken in the course of the debate, is not actionable 
 at the suit of the person whose character has been called in 
 question {d). Statements of witnesses before Parliamentary 
 Committees are also privileged (c). 
 
 (2) Statements of a iudge acting iudiciallv, whether rele- i-^wcl'^a'. ^ 
 vant or not, are absolutely privileged (/) ; and so are those of ^nd matter's | 
 counsel, however irrelevant and however malicious (^).jof State. 
 Solicitors acting as advocates have a like privilege (h). 
 Statements of witnesses made in the course of proceedings 
 
 in a court of justice, or in any authorised tribunal acting 
 judicially, can never be the subject of an action (i) ; and 
 a military man giving evidence before a military court of 
 inquiry w^hich has not power to administer an oath, is 
 entitled to the same pi-otection as that enjoyed by a witness 
 under examination in a court of justice (k). So also is a 
 person who fills in a form required for obtaining a lunacy 
 order (l). Communications relating to affairs of State made 
 by one officer of State to another in the course of duty are 
 also absolutely privileged {m). 
 
 (3) In speeches before district and county councils, and the '^".31^^*^^^ 
 like, although the occasion is privileged, the privilege is not fe-r-'--«<.»*~ 
 
 (as in the case of Parliament) absolute, and the speaker is' ^0^^,*^^,!^^ ^ \ 
 only protected in the absence of actual malice (»). councils, etc. 
 
 (4) Fair and accurate reports of trials (unless obscene or' 
 demoralising) published in a newspaper contemporaneously^ 
 with the proceedings are privileged (o) ; and the same rule 
 applies to a report of an ex parte application for a summons, 
 
 (d) Wasoii V. Waller, L. R. 4 (,). B. 73. 
 
 (e) O'offin V. Donndly, 6 Q. B. I). 307. 
 (/) Scott V. Stamfield, L. R. 3 Ex. 22(J. 
 (g) Mumferv. Lamb, 11 Q. B. 1). 588. 
 [h) Ih., and Mackuy v. Ford, 29 L. J. Ex. 404. 
 [i] Seaman v. XetlierdiJ't, 2 C. P. D. o3 ; Barrutt v. Ktarns, [1905] 
 
 1 K. B. 504. 
 
 (k) Dawkins v. Rokehy, L. R. 7 H. L. 744. 
 
 (/) llodson V. Pare, [1899] 1 Q. B. 455. 
 
 (m) Chatterton v. Secretary of State for India, [1895] 2 Q. B. 189,. 
 
 (a) Boycd Aquarium Societij v. Parkinson, [1892] 1 Q. B. 431 ; 
 Pittard V. Oliver, [1891] 1 Q. B. 474. 
 
 (o) 51 & 52 Vict. c. 64, s. 3 (Law of Libel Ameiidinent Act, 1888).
 
 134 
 
 Of Defamation. 
 
 Art. 50. 
 
 Reports of 
 quasi judicial 
 proceedings. 
 
 Ne-Nvspaper 
 reports of 
 meetings, 
 and publica- 
 tion of 
 public 
 notices, etc. 
 
 made to a magistrate in open court {p). And a report of a 
 trial published by a private person is probably j^rimd facie 
 privileged in the absence of express malice. But, on the 
 other hand, dicta of Lord Halsbuby and Lord Bbamwell 
 in the case of Macdougall v. Knight (q) lay it down that a 
 report of the judge's summing up, or judgment only, is not 
 a fair report of a trial, and is only privileged if, in point 
 of fact, the summing up or judgment g^ve reasonable 
 opportunity to the reader to form a correct conclusion. 
 The pubhcation, by the order of magistrates, of the report 
 made to them by the chief constable as to the conduct of 
 publicans is privileged, in the absence of actual malice (r). 
 
 (5) Eeports of their proceedings published by quasi judicial 
 bodies, bond fide and without any sinister motive, are 
 privileged. For instance, where the General Council of 
 Medical Education and Eegistration (who are empowered by 
 statute to strike the names of persons off the register o 
 qualified medical practitioners) struck off the plaintiff's 
 name, and, in their annual published report, stated the 
 circumstances which induced them to do so, it was held 
 that in the absence of actual malice the publication was 
 privileged (.s). The Court of Appeal intimated that the 
 same principle would apply to reports of the proceedings of 
 all bodies entrusted by Parhament with duties in which the 
 public are interested, e.g., county councils and the like. If, 
 however, the statement is published maliciously, the 
 privilege is gone, as there is no absolute privilege in such 
 cases (^). 
 
 (6) By s. 4 of the Law of Libel Amendment Act, 1888 (u), 
 it is enacted that a fair and accurate report published in 
 any ncivsimpcr of the proceedings of a public meeting, or 
 (except where neither the public nor any newspaper 
 reporter is admitted) of any meeting of a vestry, town 
 council, school board, board of guardians, board or local 
 
 (p) Kimher v. Press Association, [189.S] I Q. B. Go. 
 
 {q) 14 App. Cas. 194. 
 
 (r) Andrews v. NoU-Boicer, [1895] 1 Q. B. 888. 
 
 (.s) Allhutt V. General Council, etc, 37 W. R. 771. 
 
 (t) JRoi/al Aquarium Societ)/ v. Parkinson, [1892] 1 Q. B. 431. 
 
 (u) 51 k' 52 Vict. c. 64.
 
 ^Ialice and Privilege. 135 
 
 authority, ov cany committee appointed by any of the above- Art. 50. 
 mentioned bodies, or of any meeting of any commissioners, 
 Select Committees of either House of Parliament, justices of 
 the peace in quarter sessions assembled for administrative 
 or deliberative purposes, and the publication at the request oi 
 any Government office or department, officer of state, com- 
 missioner of police oi- chief constable, of any notice or 
 report issued by them for the information of the public, 
 shall be privileged, unless it shall be proved that such 
 report or publication was published or made maliciously. 
 But the protection intended to be afforded by that section is 
 not available if the defendant has refused to insert in the 
 newspaper in which the matter complained of appeared, a 
 reasonable explanation or contradiction by, or on behalf of, 
 the plaintiff. Nor is it available to protect fair and 
 accurate reports of statements made to the editors of news- 
 papers by private persons as to the conduct of a public 
 officer (i-). 
 
 (7) 111 Stuart v. Bell (.c) the plaintiff was a valet, and whilst Social and 
 he and his master were staying at Newcastle as the guests '"°'^ "^ ^' 
 of the defendant, who was a magistrate and mayor of 
 Newcastle, the chief constable showed the defendant a 
 
 letter which he had received from the Edinburgh police 
 stating that the plaintiff was suspected of having committed 
 a theft at a hotel in Edinburgh which he bad recently left, 
 and suggesting a cautious inquiry. The defendant, without 
 making any inquiry, told the plaintiff's master privately 
 that there had been a theft at the hotel and that suspicion 
 had fallen on the plaintiff. It was held that the defendant 
 made the statement to the plaintiff's master in discharge of 
 a moral or social, though not a legal duty, and that the 
 occasion was privileged. There being no evidence of malice 
 judgment was given for the defendant. 
 
 (8) So advice given, in confidence, at the request of another, 
 and for his protection, is privileged ; and it seems that the 
 presence of a third party makes no difference (y). But it 
 
 (»■) Daritv. Shtptton", 11 Aj))). (,'as. IS". 
 
 (.1-) [18911 2 Q. B. 341. 
 
 {y) Taylor v. Hairkins, IG Q. B. 308 ; Clark v. Mo/yiienx, 3 Q. B. D. 237. 
 
 I-.T. K
 
 136 ' Of Defamation. 
 
 Art. 50. seems doubtful whether a volunteered statement is equally 
 privileged {z). Thus the character of a servant given to a 
 person requesting it, is privileged [a) ; and so, also, is the 
 character of a person who states that she is a fit recipient 
 of charity, given to, and at the request of a person v\'illing 
 to bestow such charity, by the secretary of the Charity 
 Organisation Society (&). 
 
 (9) The character of a candidate for an office, given to 
 one of his canvassers, w^as held to be privileged (e). 
 
 ■'Statements (10) A privileged occasion arises, if the communication is 
 
 ( made 3y one q£ such a nature that it can be fairly said that he who 
 having an 
 interest to makes it has an interest in making it, and that those to 
 
 one liaving a -^rjj^om it is uaade have a corresponding interest in having 
 ing interest,' the communication made to them. Thus, where the defen- 
 dants (a railway company) dismissed the plaintiff (one of 
 their guards), on the ground that he had been guilty of 
 gross neglect of duty, and published his name in a monthly 
 circular addressed to their servants, stating the fact of, and 
 the reason for, his dismissal, it was held that the statement 
 was made on a privileged occasion, and that the defendants 
 were not liable. For, as Lord Esher, M.E., said, " Can 
 any one doubt that a railway company, if they are of 
 opinion that some of their servants have been doing things 
 which, if they were done by their other servants, would 
 seriously damage their business, have an interest in stating " 
 this to their servants ? And how can it be said that the 
 servants to whom that statement is made have no interest 
 in hearing that certain things are being treated by the com- 
 pany as misconduct, and that if any of them should be 
 guilty of such misconduct, the consequence would be 
 dismissal from the company's service?" (d). 
 
 (z) Coxliead v. Richards, 15 L. J. C. P. 278 ; and Fryer v. Kinners- 
 ley, 33 L. J. C. P. 96 ; but see Z>arie.v v. Snmd, L. R. o Q. B. 608. 
 (a) Gardemr v. Slade, 18 L. J. Q. B. 334. 
 (h) WaJhr V. Loch, 7 Q. B. D. 619. 
 (c) Coirlts V. Pom, 34 L. J. Q. B. 247. 
 (rf) JIuuL V, Grmt Northern. Hail. Co., [1891] 2 Q. B. 189.
 
 Malice and Peivilege. 137 
 
 (11) However, imputations which, if made to persons Art. 50. 
 
 having a corresponding interest, would be privileged in the 
 
 absence of actual malice, cease to be so if spread broadcast, nmdfto'""'^ 
 Thus, imputations circulated freely against another in order persons not 
 
 to injure him in his calling, however bond fide made, are not '^'"^i"S a cor- 
 
 ..,-,„. ■ •' ) - ^i'-'i' responding 
 
 privileged, i^or instance, a clergyman is not privileged in interest, 
 slandering a schoolmaster about to start a school in his 
 parish (c). So, the unnecessary transmission by a post office 
 telegram of libellous matter, which would have been privi- 
 leged if sent by letter, avoids the privilege (/). And where 
 by the defendant's negligence that which would be a privi- 
 leged communication if made to A., is in fact placed in an 
 envelope directed to B., whereby the defamatory matter is 
 published to B., the defendant will be liable {g). 
 
 Art. dl.—Bepeating Libel or^Slander. 
 
 (1) Whenever an action will lie for slander or 
 libel, it is of no consequence that the defendant 
 was not the originator, but merely a repeater, or 
 printer and pubhsher of it (//). 
 
 _ (2) But in slander, if the special damage arise 
 simply frcm the repetition, the originator will 
 not be liable {i) ; except (a) where the originator 
 has authorised the repetition (/.•) ; or (b) where 
 the words are originally spoken to a person who 
 
 (e) ClUpin V. Foirler, 9 Ex. 01.5. 
 
 (/) Williamson v. Freer, L. E. 9 C. P. 893. 
 
 (fj) Hehditch v. Mad/ waive, [1894] 2 Q. H. ,14. 
 
 o //^^T,^'{','/^''^''^°" ■''• ^«'»e^-^S 10 B. & C. -Mi; U'atkiu v. Ha//, L. R. 
 6 y. i>. .i9o. 
 
 ((■) Parkim v. Scott, 1 H. & C. 153. 
 
 (A) Ktndil/on v. Ma/tby, Car. & M. 402.
 
 138 
 
 Of Defamation. 
 
 Art. 51. 
 
 Explanation. 
 
 Example. 
 
 Printing 
 slander. 
 
 Publisher 
 of libel. 
 
 is under a moral obligation to connnunicate them 
 to^a third person (I). 
 
 (1) lu Derry v . Handley {I) , Cockburn, C.J., observed: 
 " Where an actual duty is cast upon the person to whom 
 the slander is uttered to communicate what he has heard to 
 some third person (as when a communication is made to a 
 husband, such as, if true, would render the person the 
 subject of it unfit to associate with his wife and daughters), 
 the slanderer cannot excuse himself by saying, ' True, 1 told 
 the husband, but 1 never intended that he should carry the 
 matter to his wife.' In such case the communication is 
 privileged, and an exception to the rule to which 1 have 
 referred ; and the originator of the slander, and not the 
 bearer of it, is responsible for the consequences." 
 
 (2) But where A. slandered B. in C.'s hearing, and C, 
 without authority, repeated the slander to T).,'per quod D. 
 refused to trust B. : it was held that no action lay against 
 A., the original utterer, as the damage was the result 
 of C.'s unauthorised repetition and not of the original 
 statement {in). 
 
 (3) So the printing and publishing by a third party of 
 oral slander (not per se actionable) renders the person who 
 prints, or writes and publishes the slander, and all aiding or 
 assisting him, liable to an action for libel, although the origi- 
 nator, who merely s2Joke the slander, will not be liable (n). 
 
 (4) Upon this principle the publisher, as well as the 
 author of a libel, is liable ; and the former cannot exonerate 
 himself by naming the latter. For " of what use is it to 
 send the name of the author with a libel that is to pass into 
 a part of the country where he is entirely unknown ? The 
 name of the author of a statement will not inform those who 
 do not know his character whether he is a person entitled 
 to credit for veracity or not " (o). 
 
 (/) Derry v. Handley, 16 L. T. (x.s.) 263. 
 
 (7n) Ward v. Weeks, 4 Moo. & P. 808. 
 
 {n) M'Gregor v. Thwaites, .3 B. & C. 24. 
 
 (o) Per Best, J., De Cref<pi<jny v. Wellesley, o Bing. 403.
 
 Libels by Newspaper Proprietors. 139 
 
 Art. o'2. — Libels hij Newspaper Proprietors. 
 
 (1) In an action for libel against the proprietor 
 or editor of any newspaper or other periodical, the 
 defendant, in "addition to pleading the privileges 
 conferred on newspaper proprietors and editors 
 by the third and fourth sections of the Law of 
 Libel Amendment Act, 1888 (^p), may plead that 
 the libel was inserted without malice and without 
 gross negligence ; and that at the earliest subse- 
 quent opportunity he inserted in such newspaper 
 or other periodical a full apology ; or, if such 
 publication was published at intervals exceeding 
 a month, that he offered to pubHsh such apology 
 in any paper the plaintiff might name. And 
 with iiis defence, the defendant may pay a sum 
 into court by way of amends {q). 
 
 (2) In any such action as aforesaid, the defen- 
 dant shall be at liberty to give in evidence in 
 mitigation of damages, that the plaintiff has 
 already recovered or brought actions for damages 
 for, or has received or agreed to receive compen- 
 sation in respect of, a libel or libels to the same 
 purport or effect (r). 
 
 Art. 53. — Limitation for Actions for 
 Defamation . 
 
 An action for sknder must generally be com- 
 menced within t\\-o^years next after the cause of 
 action arose, aiiTan action for libel within s^ 
 y^^mis). ^ 
 
 (p) Sitpra, pp. 133, 134. 
 
 (q) 6 & 7 Vict. c. 9(J, s. 2. See Ha irke.^/ei/ v. Bradshawe, 5 Q. B. D. 22, 302. 
 
 (r) 44 & 45 Vict. c. 60, s. 6. The Act gives very exhaustive defini- 
 tions of •' Newspaper" and " Proprietor." As to the consolidation of 
 several actions brought against different persons for the same libel, see 
 51 & 52 Vict. c. 64, s. 5. 
 
 {s) 21 .lac. 1, c. 16, s. 3. 
 
 Art. 52.
 
 ( 140 ) 
 CHAPTEE II. 
 
 OF MALICIOUS PROSECUTION. 
 
 Art. 54. — Definition. 
 
 (1) Malicious prosecution consists of the 
 malicious institution against another of unsuc- 
 cessful criminal, or bankruptcy, or liquidation 
 proceedings, without reasonable or probable 
 cause {a). 
 
 (2) Malicious prosecution causing actual 
 damage to the party prosecuted is a tort, for 
 which he may maintain an action. 
 
 It will be seen from the above article, that in order to 
 sustain an action for malicious prosecution, live factors 
 must co-exist, viz. : (1) a prosecution of the plaintiff by the 
 defendant ; (2) want of reasonable and probable cause for 
 that prosecution ; (3) malice ; (4) the determination of the 
 prosecution in favour of the party prosecuted ; and 
 (5) damage caused to that party by the prosecution. If 
 any one of these five factors are absent, no action will lie. 
 It is, therefore, desirable to examine each one of these 
 elements in detail. 
 
 Art. b^. — ProHecution hij flie Defendnnt. 
 
 (1) The prosecution must have been instituted 
 by the defendant against the plaintiff, and not 
 
 (a) See vhvrchill v. Siggerx, 8 E. & B. it37 ; Johnson v. Eimrxon, 
 L. R. 6 Ex. 329 ; and Quartz Hill, dr. Co. v. Eyrt, 11 Q. B. D. 0/4.
 
 PpxOSEcution by the defendant. 141 
 
 merely by the authorities on facts furnished by Art55. 
 the defendant. 
 
 (•2) A person who has not instituted proceed- 
 ings niahciously may be guilty of mahcious 
 prosecution if, ' after they have been begun 
 properly by himself or another, he continues 
 tiiem maliciously and without reasonable and 
 probable cause, as when in the course of the 
 proceedings he acquires positive knowledge of 
 the innocence of the accused (/:>). 
 
 (1) Thus, if a person bond fide lays before a magisti-ate a Illustrations, 
 state of facts, without making a specific charge of crime, and Mistake of 
 the magistrate erroneously treats the matter as a felony, when 
 it is in reality only a civil injury, and issues his warrant for 
 the apprehension of the plaintiff, the defendant who has 
 complained to the magistrate is not responsible for the 
 mistake. For he has not instituted the prosecution, but the 
 magistrate (c). But if a person goes before a magistrate 
 and makes a specific charge against another, as by swearing 
 an information that that other has committed a criminal 
 offence, he is the person prosecuting, for he and not the 
 magistrate has set the law in motion. So, too, if a person 
 instructs a sohcitor to prosecute, he is liable for the conse- 
 quences if he does it maliciously and without reasonable 
 and probable cause. 
 
 (2) It has been held that if a person acting bona fide 
 swears an information before a magistrate, under s. 10 of the 
 Criminal Law Amendment Act, 1885, that he has reason- 
 able grounds for suspecting that a woman or girl is detained 
 for immoral purposes, and thereupon the magistrate issues 
 a search warrant, the person swearing the information is 
 
 (/<) Pir CocKBURN, C.J., in Fitzjohn v. Machnder, 9 C. B. (n.s.) 
 50.'), and see Weston v. Be.eman, 27 L. J. Ex. 57. This seems to be the 
 effect of the cases cited : hut the point is nowhere very clearly de- 
 cided. Fi/zjohn v. Marldnder should be carefully studied, as the 
 judges deciding it give different reasons for their decision. 
 
 (r) Wy(xtl V. White, 29 L. J. Ex. 193; Cooper v. Booth, o Esp. 
 144.
 
 142 Of Malicious Prosecution. 
 
 Art. 55. not a prosecutor, as the magistrate acts judicially upon such 
 information, and the decision of the magistrate that there is 
 reasonable cause for suspicion protects the person giving the 
 information (d). 
 
 Art. 56. — Want of Beasonahle and Prohahle 
 Cause. 
 
 (1) The onus of proving the absence of reason- 
 able and probable cause for the prosecution rests 
 on the plaintiff (e) . 
 
 (2) The jury Unci the facts on which the 
 question of reasonable and probable cause de- 
 pends ; but the judge determines ^Yhether those 
 facts do constitute reasonable and probable 
 cause (/). 
 
 (3) No definite rule can be laid down for the 
 exercise of the judge's determination (g) ; but 
 the defendant will be deemed to have had 
 reasonable and probable cause for a prosecution 
 where (a) he took reasonable care to inform 
 himself of the true facts ; (b) he honestly, 
 although erroneously, believed in his informa- 
 tion, and (c) that information, if true, would 
 have afforded a j^r/?;/*-? facie case for the prosecu- 
 tion complained of (//). 
 
 Burden of Note, that in both malicious prosecution and false 
 
 proof. imprisonment the question of wliat amounts to reasonable 
 
 ((/) Hojje V. Evered, 17 Q. B. 1). 338. 
 
 (e) Lister v. Pti-j-yman, L. R. 4 H. L. ~yl\ ; Ahralli \. Xorth EaMoii 
 Rail. Co., 11 App. Cas. 247. 
 
 (/) Panton. v. Willimm, 2 Q. B. 1G9. 
 
 ((/) Lister v. Perryman, L. R. 4 H. L. 521. 
 
 (h) Hec Abrath v. Xorth Easitrn Pail. Co., nhi mpra.
 
 Want of Reasonable and Probable Cause. 143 
 
 and probable cause is for the judge. But there is this Art. 56. 
 important ditference, that in mahcious prosecution it is 
 for the pkxintiff to prove the absence of reasonable and pro- 
 bable cause ; whereas in false imprisonment, the imprison- 
 ment is inimd facie wrongful, and it is for the defendant, 
 if he can, to prove that he had reasonable and probable 
 cause. 
 
 In Hicks v. Faulkner (i), Hawkins, J., says : " I should Reasonable 
 Till ,1 1 4. '^"" probable 
 
 define reasonable and probable cause to be an honest ^..^^^^^ defined. 
 
 belief in the guilt of the accused based upon a full con- 
 viction, founded upon reasonable grounds, of the existence 
 of a state of circumstances, which, assuming them to be 
 true, would reasonably lead an ordinarily prudent and 
 cautious man, placed in the position of the accuser, to the 
 conclusion that the person charged was inohahhj guilty of 
 the crime imputed. There must be first an honest belief 
 of the accuser in the guilt of the accused ; secondly, such 
 belief must be based on an honest conviction of the existence 
 of the circumstances which led the accuser to that con- 
 viction ; thirdly, such secondly mentioned belief must be 
 based upon reasonable grounds ; by this I mean such 
 grounds as would lead any fairly cautious man in the 
 defendant's situation so to believe ; fourthly, the circum- 
 stances so believed and relied on by the accuser must be 
 such as amount to reasonable ground for belief in the guilt 
 of the accused." 
 
 A man who makes a criminal charge against another, 
 cannot absolve himself from considering whether the charge 
 is reasonable and probable, by delegating that question to 
 an agent, even although that agent be presumably more 
 capable of judging. Thus, the opinion of counsel as to 
 the propriety of instituting a prosecution, will not excuse 
 the defendant if the charge was in fact unreasonable and 
 improbable. For as Heath, J., said in Hetolett v. 
 Omchley (k), "it would be a most pernicious practice if 
 we were to introduce the principle that a man, by obtaining 
 
 (/) S Q. B. I)., at p. 171. (/'■) •"> Taunt. 2S3.
 
 144 Of Malicious Peosecution. 
 
 Art. 56. the opinion of counsel, by applying to a weak man or an 
 ignorant man, might shelter his malice in bringing an 
 unfounded prosecution . ' ' 
 
 With regard to the amount of care which a prosecutor 
 is bound to exercise before instituting a prosecution, it 
 would seem that although he must not act upon mere 
 tittle-tattle or rumour, or even upon what oue man has 
 told his immediate informant, without himself interviewing 
 the first-mentioned man, yet where his immediate informant 
 is himself cognizant of other facts, which, if true, strongly 
 confirm the hearsay evidence, that will be sufficient to 
 justify the prosecutor in acting, without first going to the 
 source of the hearsay (/). But as circumstances are infinite 
 in variety, it is quite impossible to lay down any guiding 
 principle as to w^hat steps a person ought reasonably to 
 take for informing himself of the truth before instituting a 
 prosecution. 
 
 Aet. 57. — Malice. {'w- , 
 
 Malice means not necessarily spite or ill-will 
 but any indirect or improper motive — any 
 motive other than that of securing the ends of 
 justice. If there is want of reasonable and pro- 
 bable cause malice ma}^ be inferred without other 
 \ evidence ; but this inference is not conclusive, 
 and- may be rebutted (m). 
 
 Illustrations. (1) H '^ person prosecutes another to prevent that other 
 In)])roper bringing actions against him {n), or to stop the mouth of a 
 w^itness (o), or to frighten others and thereby deter them 
 from committing depredations on the prosecutor's pro- 
 
 (/) Li'^ter v. Perryman, L. R. 4 H. L. 021. 
 (m) Brown v. Hawkes, [1891] 2 Q. B. 718. 
 (u) Liith V. Pike, 2 W. Bla. 1326. 
 (0) Iluddrick v. Htdop, 12 Q. B. 2G7. 
 
 \ 
 
 \ 
 
 motives.
 
 Malice. l-i-J 
 
 perty (jj), all these are indirect and improper motives which Art. 57. 
 may constitute malice. 
 
 (2) So, too, where one is assaulted justihahly, and insti- 
 tutes criminal proceedings for the assault ; if in the opinion of 
 the jury he commenced such proceedings knowing that he 
 was wrong and had no just cause of complaint, malice may 
 be presumed (q). 
 
 (3j In Brotrii v. Haickcs (r) it was pointed out that a Honest 
 prosecutor xnay act without reasonable and probable cause 
 and yet not be malicious. Stupidity and malice are not 
 the same thing ; and if the defendant honestly beheved in 
 the plaintiff's guilt, and there is no evidence that he was 
 actuated by any improper motive, even though he had 
 not taken care to inform himself of the facts, and had no 
 reasonable and probable cause for prosecuting, yet he 
 cannot be said to have acted mahciously.'/ Honest belief 
 rebuts the inference of malice from absence of reasonable 
 and probable cause. -^ 
 
 (4) So, too, where the defendant has honestly and bond Bad memory. 
 fide instituted the prosecution, he is not liable, although 
 
 owing to a defective memory he has wrongly accused the 
 plaintiff (s) . 
 
 (5) Whether a corporation can be guilty of malicious Malice in a 
 prosecution was, until recently, not free from doubt, it <^^'^P"^' 
 being said that a corporation having no mind cannot enter- 
 tain mahce (t). In Edivards v. Midlancl Bail. Co. {u), it was 
 held by Fry, J., that a corporation was capable of malice. 
 x\nd in Cornford v. Carlton Bank {v}, Darling, J., held 
 that if a corporation institutes a prosecution acting on 
 motives which in an individual would amount to malice, the 
 
 (p) Sfereii-sy. Midland Bail. Co., 10 Ex. 350. 
 (q) Hinton v. Heather, 14 M. & W. 131. 
 (r) [1891] 2 Q. B. 718. 
 (.s) Hichs V. Faulkner, 8 Q. B. D. 167. 
 
 (t) See per Lord Braiiwkll in Ahralh v. Xorth Eastern Bail. Co., 
 11 App. Cas. 247. 
 (u) 6 Q. B. D. 287. (0 [1899] 1 Q. B. :592 ; [19UU] 1 Q. B. 22.
 
 146 
 
 Of Malicious Prosecution. 
 
 Art. 57. corporation may be said to have prosecuted maliciously, 
 
 and it is now well established that an action of malicious 
 
 prosecution will lie against a corporation. 
 
 Explanation 
 of reasons 
 for lule. 
 
 Procuring 
 bankruptcy. 
 
 Aet. 58. — Failure of tlie Prosecution. 
 
 It is necessary to show that the proceeding 
 alleged to have been instituted maliciously, and 
 without reasonable or probable cause, has ter- 
 minated in favour of the plaintiff, if, from its 
 nature, it be capable of such a termination (.r). 
 
 (1) This rule, which at first sight appears somewhat 
 harsh, is founded on good sense, and applies even where 
 the result of the prosecution cannot be a]Dpealed (//). As 
 Crompton, J., said, in Castrique v. Behrens [z), "there 
 is no doubt on principle and on the authorities, that 
 an action lies for maliciously, and without reasonable 
 and probable cause, setting the law of this country in 
 motion, to the damage of the plaintiff. . . . But in 
 such an action it is essential to show that the proceeding 
 alleged to be instituted maliciously and without probable 
 cause has terminated in favour of the plaintiff, if from its 
 nature it be capable of such termination. The reason 
 seems to be that, if in the proceeding complained of, the 
 decision was against the plaintiff, and was still unreversed, 
 it would not be consistent with the principles on which law 
 is administered for another court, not being a court of 
 appeal, to hold that the decision was come to without 
 reasonable and probable cause." 
 
 (2) In Metropolitan Bank v. Pooley {a), it was held that 
 no action will lie for maliciously procuring a person's bank- 
 
 {x) Basehc v. Mattheing, L. R. 2 C. P. 684 ; and as to bankruptcy 
 proceedings. Metropolitan Bank v. Pooley, 10 App. Cas. 210. 
 (y) Bafi'hi- V. Mattheics, nhi fOipra. 
 (z) 30 L. J. Q. B. 168. («) 10 App. Cas. 210
 
 Damage. 
 
 147 
 Art. 58. 
 
 ruptcy until the adjudication in i)ankruptcy has been set 
 aside. 
 
 (3) In The Quartz Hill Consolidated Gold Mining Co. v. 
 Eijre (b) it was held that a trading company against which 
 a petition for winding up had l)een brought maliciously and 
 without reasonable and probable cause had a right of action 
 after the petition had been dismissed. 
 
 Art. 59. — Dam age. 
 
 In order to support an action for malicious 
 prosecution, it is necessary to show some damage 
 resulting to the plaintiff as the natural conse- 
 quence of the prosecution complained of (c). 
 
 The damage need not necessarily be pecuniary. " It J^^^St be 
 may be either the damage to a man's fame, as if the pecuniary, 
 matter he is accused of be scandalous, or where he has 
 been put in danger to lose his life, or limb, or liberty ; or 
 damage to his property, as where he is obliged to spend 
 money in necessary charges to acquit himself of the crime 
 of which he is accused "(f/). Thus, in The Quartz Hill 
 Consolidated Gold Mining Co. v. Eijve{h), it was held that, 
 in an action for maliciously taking proceedings to wind 
 up a company, no pecuniary loss or special damage need 
 be proved, as the presentation of a petition for winding up 
 is from its very nature calculated to injure the credit of 
 a trading company. 
 
 N.B.— There are certain torts analogous to malicious 
 prosecution which occur too rarely to require notice in an 
 elementary work of this kind. One of these is malicious 
 arrest, which consists in wilfully putting the law in motion 
 
 {h) 11 Q. B. U. 674. 
 
 (c) Bym V. Moore, o Taunt. 187. 
 
 {(1) Mayne's Treatise on Damages, p. 345.
 
 148 Of Malicious Peosecution. 
 
 Art. 59. to effect the arrest of another under civil process without 
 cause. Arrest under civil process is, however, now so 
 rarely possible that this form of tort may be almost deemed 
 obsolete. Another wrong of the same nature is causing 
 injury to another by an abuse of legal procedure (e). This, 
 again, is rarely brought before the courts, and the student 
 who desires information regarding it is referred to larger 
 works. 
 
 (e) See Graiwjcr v. HiU, 4 Bing. X. C. -IVl.
 
 149 ) 
 CHAPTER III. 
 
 OF MAINTENANCE. 
 
 Art. 60. — Defiiiitio)!. 
 
 (1) Maintenance is the unlawful assistance, by 
 money or otherwise, proffered by a third person 
 to either party to a civil suit, to enable him to 
 prosecute or defend it. 
 
 (•2) Assistance of another in a suit is not un- 
 lawful if (a) the maintainer has a common 
 interest in the action with the party maintained ; 
 or (b) the maintainer is actuated by motives of 
 charity, hoiid fide beheving that the person 
 maintained is a poor man oppressed by a rich 
 one. 
 
 Maintenance differs from malicious prosecution in four '^''^t^i^"-^^ ^^^^^^ 
 respects : malicious 
 
 (a) It applies to civil, not criminal proceedings. prosecution. 
 
 (b) It consists not in instituting proceedings on one's 
 
 own behalf, but in assisting another. 
 
 (c) Mahce is not a necessary ingredient. 
 
 (d) It is not necessary to prove that the proceedings 
 
 terminated in favour of the person who is plaintiff 
 
 in an action of maintenance. 
 (1) Thus, in the well-known case of Bradlamjh v. Neiv- Illustrations. 
 degate {a), the plaintiff, having sat and voted as a member 
 of Parliament without having made and subscribed the 
 oath, the defendant, who was also a member of Parliament, 
 procured C. to sue the plaintiff for the penalty imposed for 
 
 (a) 11 Q. B. 1). 1.
 
 150 Of Maintenance. 
 
 Art. 60. so sitting aud voting. C. was a person of insufficient 
 means to pay the costs in the event of the action being 
 unsuccessful : — Held, that the defendant and C. had no 
 common interest in the result of the action for the penalty, 
 and that the conduct of the defendant in respect of such 
 action amounted to maintenance, for which he was liable 
 to be sued by the plaintiff. The plaintiff accordingly re- 
 covered all the costs he had incurred in the first action. 
 Common (2) But, ou the other hand, as a general rule, there is 
 
 interest. ^^^ doubt, that where there is a common interest believed 
 
 on reasonable grounds to exist, assistance in bringing or 
 defending an action is justifiable. The oldest authorities 
 all lay down this qualification, and, by the instances they 
 give, show the sort of interest which is intended. A master 
 for a servant, or a servant for a master, an heir, a brother, 
 a son-in-law, a brother-in-law, a fellow commoner defending 
 rights of common, or a landlord defending his tenant in 
 a suit for tithes [h). 
 
 (3) So, where, during the pendency of an action, the 
 plaintiffs became bankrupt, and the trustee in bankruptcy 
 assigned the right of action to F., with power to continue 
 it, on the terms that if F. was successful he should take 
 three-fourths of the net result, and that the remaining 
 one-fourth should be paid to the trustee in bankruptcy, and 
 it further appeared that F. was in reality trustee for himself 
 and certain other creditors of the bankrupt, it was held 
 that the transaction was lawful. For F. and the trustee 
 in bankruptcy had a common interest in the subject-matter 
 of the action, and so had the other creditors for whom F. 
 was trustee (c). 
 
 (4) In the case of Alabaster v. Harness (d), the defen- 
 dants, being interested in the sale of certain electrical 
 appliances for the treatment of disease, employed T. to 
 report thereon. T. reported favourably. The plaintiffs, 
 proprietors of a newspaper, then published an article com- 
 
 (h) Per (JohKRiDiiE, L.C.J. , in Bradlauijh v. XtuxlKjuU;, 11 Q. B.U. 11. 
 
 (c) Ony V. Churchill, 40 Ch. D. 481 ; and see Sctar v. Lawsoii, 
 15 Ch. D. 42H. 
 
 (d) [1895] 1 (). B. 339.
 
 Definition. 151 
 
 menting adversely on T.'s report, and casting reflections on Art. 60. 
 T.'s qualifications as an expert, and on his conduct in con- 
 nection with the report and the sale of the electrical 
 appliances. T. brought an action for libel at the instiga- 
 tion and expense of the defendants. The newspaper 
 proprietors having succeeded in the action for libel, com- 
 menced an action against the defendants for maintenance, 
 claiming as , damages the costs tJaeSt had incurred in 
 defending the action a gainefe - T '.,^which T. had been unable 
 to pay. It was held that the defendants and T. had no 
 sufticient common interest in the action for libel, and that 
 the action of maintenance was maintainable. 
 
 (5) But where a rich man in the bond fide, but erroneous. Charity, 
 belief that a poor man was being oppressed, advanced money 
 to him for the purpose of maintaining an action against the 
 oppressor, it was held that he was justified ; notwithstanding 
 that if he had made full inquiry, he would have ascertained 
 that there was no reasonable or probable ground for the 
 proceedings which he assisted (e). 
 
 {e) Harris v. Bri'^ro, 17 Q. B. D. 504.
 
 152 ) 
 
 CHAP TEE lY 
 
 OF SEDUCTION. 
 
 Foundation 
 of action 
 loss of 
 service. 
 
 Aet. 61. — General Hide. 
 
 Every person is liable to an action for damages 
 ^yho wilfully — 
 
 (1) Entices away another's servant or wife, 
 i or knowingly harbours a servant who 
 
 has wrongfully quitted his or her 
 master's service {a) ; 
 
 ' (2) Debauches a female who is in the actual 
 or constructive service of another so 
 that that other is deprived of her 
 services. 
 
 The common action for seduction is usually brought by 
 a father in respect of the seduction of his daughter. The 
 action is founded on the old form of action for assaulting 
 or enticing away a servant, per quod servitium amisit. 
 Accordingly, the daughter must have been actually or con- 
 structively the servant of the plaintiff, and loss of services 
 by the act of the defendant must be proved. No actual 
 contract of service need be proved, provided there is, in 
 fact, some service rendered, and some loss of that service. 
 
 Actions for enticing away servants are not now often 
 brought, but in Evans v. Walton [h), it will be noticed that 
 the wrong done was not debauching the plaintiff's daughter, 
 but enticing her away, and it was held that the action lay 
 
 (a) Winxmore v. Greenbaitk, Willes, 577 ; B(akt v. Lanyon, 6 T. R. 
 221. 
 
 (//) L. R. 2 C. P. 61o.
 
 Relationship of Master and Servant. 153 
 
 provided the relationship of master and servant in fact Art. 61. 
 existed. x\.s to the more modern development of this form 
 of action, viz., the action for procuring a breach of a con- 
 tract to do work or supply goods, etc., see ^wst, Chap. VI. 
 
 Art. iVI. — BelationsJiijy of Master and Servant 
 in ordinary Actions for Seduction. 
 
 (1) The plaintiff must prove (a) that the female 
 seduced was at the time of the seduction in his 
 service, actual or constructive (c) ; (b) that he 
 lost the services of the female, either by reason 
 of her pregnancy and coniinement, or by reason 
 of her being kept away by the persuasion of the 
 defendant {d). 
 
 (2) Where the female seduced is the daughter 
 of the plaintiff she is constructively in his service 
 if she lives at home and performs in fact any 
 slight services. 
 
 (3) A daughter under the age of twenty-one, 
 unmarried and not in other service, is presumed 
 to be in the service of her parents (e). 
 
 (1) Thus, the plaintiff's daughter was in service as a Illustrations 
 governess, and was seduced by the defendant whilst on a 
 three-days' visit, with her employer's permission, to the 
 plaintiff, her widowed mother. During her visit she gave 
 some assistance in household duties. At the time of her 
 confinement she was in the service of another employer, 
 and afterwards returned home to her vnoihev -.-—Held , that 
 there was no evidence of service at the time of the seduction. 
 And by Kelly, C.B., and Mabtin and Bkamwell, BB., 
 
 (c) Davits V. Williams, 10 Q. B. 725. 
 
 (d) Hedges v. Tagg, L. R. 7 Ex. 283 ; Evatis v. Walton, L. R. 2 C. P. 
 615. 
 
 (e) lldrris v. Butltr, 2 M. & W. 542. 
 
 L 2
 
 154 Of Seduction. 
 
 Art. 62. that the action must fail also on the ground that the 
 confinement did not take place whilst the daughter was in 
 the plaintiff's service (/). 
 
 Constructive (2) In Long V. Keightley {g), however, there was held to 
 be a sufficient loss of service under the following circum- 
 stances : The plaintiff's daughter, aged twenty-four years, 
 was seduced in the house and service of the plaintiff. The 
 day after, she left Ireland for America, pursuant to a prior 
 arrangement. Finding herself pregnant while in service 
 there, she returned to her native country, and went to stay 
 at her sister's house, where she was confined. Afterwards 
 she returned to the house of her mother (the plaintiff). On 
 the authority of Hedges v. Tagg, it was argued, that inasmuch 
 as the confinement did not take place while the daughter 
 was in the service of her mother, the action must fail. But 
 the court distinguished the two cases on the ground, that in 
 Hedges v. Tagg the girl's confinement happened when she 
 was in the service of another ; while in the case in discussion 
 she was constructively in the service of the plaintiff directly 
 she returned to Ireland. 
 
 (3) In Evans v. Walton [h), the daughter of the plaintiff 
 (a publican), who lived with him and acted as his barmaid, 
 but without any express contract or wages, was induced by 
 the defendant to leave her father's house, and live with him 
 at his lodgings : it was held, that the relation of master and 
 servant might be implied from these circumstances, and 
 that it mattered not whether the service was at will or for a 
 fixed period. There was no allegation of debauchery — but 
 the plaintiff lost the services of his daughter whilst she 
 was living with the defendant. 
 
 (4) In the case of a daughter living at home, such small 
 services as milking, or even making tea, are sufficient 
 evidence cf service (i) . 
 
 (/) Hed<jts V. Tauii, L. R. 7 Kx. 283. 
 
 (.7) 11 Ir. Rep. C. L. 221. 
 
 ih) L. R. 2 C. P. 615. 
 
 (i) Bennett v. Allcott, 2 T. R. KiG; Carr v. Clurka, 2 Chit. W. 2(51.
 
 Kelationship op Master and Servant. 155 
 
 (5) Where a girl was iu the defendant's service when Art. 62. 
 seduced by him, but was allowed to go home for an after- 
 
 noon and evening twice a week, and on those occasions 
 assisted in household work and in looking after the other 
 children, it was held that the relationship of master and 
 servant did not exist between the plaintiff and the daughter 
 so as to support an action of seduction (k). 
 
 (6) And where the daughter at the time of the seduction 
 is acting as housekeeper to another person, the action will 
 not lie(/) ; not even when she partly supports her father {m). 
 
 (7) The plaintiff's daughter, beiiig wider age, left his Daughter 
 house and went into service. After nearly a month, the ■"'^^®'^ ^8®" 
 master dismissed her at a day's notice, and the next day, 
 
 on her way home, the defendant seduced her. It was held, 
 that as soon as the real service was put an end to by the 
 master, whether rightfully or wrongfully, the girl intending 
 to return home, the right of her father to her services 
 revived, and there was, therefore, sufficient constructive 
 service to maintain an action for the seduction {n). 
 
 (8) When the child is only absent from her father's house 
 on a temporary visit, there is no termination of her services, 
 provided she still continues, in point of fact, one of his 
 own household (o). 
 
 Art. 63. — Misconduct of Parent. 
 
 If a parent has introduced his daughter to, or 
 has encouraged, profligate or improper persons, 
 or has otherwise courted his own injury, he has 
 no ground of action if she be seduced. 
 
 Thus, where the defendant was received as the daughter's 
 suitor, and it was afterwards discovered by the plaintiff that 
 he was a married man, notw^ithstauding which he alloW'ed 
 
 (L) Whitboarut v. Wil/lams, [1901] 2 K. B. 722. 
 
 (/) Dean v. Peel, o East, 45. 
 
 (m) Manley v. Field, 29 L. J. C. P. 79. 
 
 (n) Terry v. Hntdunson, L. R. 3 Q. B. 599. 
 
 (o) Griffiths v. Teetytn, 15 C. B. 344.
 
 156 Of Seduction. 
 
 Art. 63. the defendant to continue to pay his addresses to his 
 daughter on the assurance that the wife was dying, and the 
 defendant seduced the daughter : it was held, that the 
 plaintiff had brought about his own injury, and had no 
 ground of action (jj). 
 
 Aet. 64. — Damages. 
 
 (1) In cases of seduction, in addition to the 
 actual damage sustained, including any expenses 
 incurred through the daughter's illness, damages 
 may be given for the loss of the society and 
 comfort of the daughter who has been seduced, 
 and for the dishonour, anxiety, and distress 
 which the plamtit! has suffered {q). 
 
 (2) Where more than ordinarily base methods 
 have been employed by the seducer, the damages 
 mxay be aggravated. On the other hand, the 
 defendant may show, in mitigation of damages, 
 the loose character of the girl seduced. 
 
 (1) Tlius, as was observed by Lord Eldon, in Bedford v. 
 McKoii'l {)■) , "although in point of form the action only 
 purports to give a recompense for loss of service, w^e cannot 
 shut our eyes to the fact that it is an action brought by a 
 parent for an injury to her child, and the jury may take 
 into their consideration all that she can feel from the nature 
 of the loss. They may look upon her as a parent losing the 
 comfort as well as the service of her daughter, in whose 
 virtue she can feel no consolation ; and as the parent of 
 other children whose morals may be corrupted by her 
 example." Damages given by a jury for this kind of tort, 
 will, therefore, rarely be reduced by the court on the ground 
 that they are excessive. 
 
 (p) Reddie v. Scoolt, 1 Peake, 816. 
 
 (q) Bedford v. McKoir/, .S Esp. 120; Tm-i/ v. Hntrhinson, L. R. 
 .3 Q. B. 599. 
 (r) 3 Esp. 120.
 
 Damages. 157 
 
 (2) .4 fortiori will this be the case, where the seducer has Art. 64. 
 made his advances under the guise of matrimony. x\s was 
 
 said by Wilmot, C.J., in a case of that character : " If the ^f^lanm^S" 
 party seduced brings an action for breach of promise of 
 marriage (5), so much the better. If much greater damages 
 had been given, we sliould not have been dissatisfied there- 
 with, the plaintiff having received this insult in his own 
 house, where he had civilly treated the defendant, and 
 permitted him to pay his addresses to his daughter " {t). 
 
 (3) On the other hand, the defendant may, in mitigation Mitigation of 
 of damages, call witnesses to prove that they have had "^ ^'"^^*^^' 
 sexual intercourse with the girl previously to the seduc- 
 tion («). And, genei'ally, the previous loose or immoral 
 character of the girl seduced is ground for mitigation ; as, 
 
 for instance, the using of immodest language or submitting 
 herself to the defendant under circumstances of extreme 
 indelicacy. 
 
 Art. 65. — Limitcition. 
 
 An action for seduction must be commenced 
 , within six years. 
 
 It is the better opinion that an action of seduction is an 
 " action on the case." If this be so, six years is the period 
 of limitation. But if, as is thought by some, the action is 
 properly an action of trespass to the person, four years is 
 the period [x). 
 
 (x) The loss caused to the plaintiff' by hreurh of a promim to marry, 
 however, is not to be taken into consideiation, for that is a civil injury 
 to htr and not to the father. 
 
 (0 Tidlidgev. If arZe, 3 Wils. 18. 
 
 («) Ecif/er V. Grimirood, 16 L. J. Ex. "JSG ; Verri/ v. WatHnx, 7 C. & 
 P. 308. 
 
 (x) See -21 ,Jac. 1, c. 16, s. 3.
 
 ( 158 ) 
 CHAPTEE V. 
 
 OF DECEIT OR FRAUD. 
 
 Moral 
 
 delinquency 
 
 necessary. 
 
 Exception in 
 case of false 
 prospectus. 
 
 Aet. '66. — Definition of Fraud. 
 
 Fraud consists of a false statement made with 
 intent to deceive and to be acted upon, and either 
 kno^Yn to be false to the party making it, or 
 made without belief in its truth, or recklessly 
 without caring whether it be true or false. 
 
 After considerable diversity of opinion, it is now well 
 settled, that in order to make a person liable for damages 
 in a common law action of deceit, moraj delinquency is 
 necessary; but, as will be seen below, an exception has 
 been made in the case of directors and promoters of 
 companies with regard to untrue prospectuses. 
 
 The leading case of Dcrry v. Peek (a) establishes that, in 
 an action of deceit, the plaintiff must prove actual fraud ; 
 he may prove it by showing that the false representation 
 was made knowingly, or without belief in its truth, or reck- 
 lessly, not caring whether it was true or false. But a false 
 statement made through carelessness, and icitliout reasonable 
 ground for believing it to be true, does not amount to fraud; 
 and if the court comes to the conclusion that it was made 
 in the honest belief that it was true, the defendant will not 
 be liable in an action of deceit, however unreasonable his 
 belief may have been, though he may be liable in an action 
 for breach of contract if the statement amounts to a 
 warranty. See post, p. 167. 
 
 This view of the law was considered to be so dangerous 
 in the case of company promoters and directors, that it led 
 
 [a] 14 App. Cas. ,337 ; and see Lc Lierre v. G'o/^A/, [ lSit3] 1 Q. B. -191.
 
 Definition of Fraud. 159 
 
 to the passing of the Directors Liabihty Act, 1890, l)y which Art. 66. 
 it was enacted that where, after the passing of that Act a 
 prospectus or notice invites persons to subscribe for shares 
 in, or debentures or debenture stock of a company, every 
 person who is a director of the company at that time, or 
 has authorised his name to be mentioned as a director, 
 or has agreed to become a dii'ector, and every promoter of 
 sucii company, and every person who has authorised the 
 issue of such prospectus or notice, shall be liable to pay 
 compensation to all persons who shall subscribe for any 
 shares, debentures, or debenture stock, on the faith of such 
 prospectus or notice, for loss or damage sustained by 
 any untrue statement in the same, or in any report or 
 memorandum appearing on the face thereof, or by refer- 
 ence incorporated therein, or issued therewith, unless it 
 be proved — 
 
 (1) \Yith respect to such untrue statement, not purpoi-ting 
 
 to be made on the authority of an expert or of a 
 public official document or statement that the 
 defendant had reasonable ground to believe, and did 
 believe, that it was true ; or 
 
 (2) With respect to every such expert report, that it 
 
 fairly represented the statement of such expert, or 
 was a correct copy of or extract from such report ; 
 and even then the defendant will be liable, if he 
 had no reasonable ground for believing in the 
 competency of the expert ; or 
 
 (3) With respect to any such public or official document, 
 
 that it was a correct and fair representation of 
 such document ; or 
 
 4) That, having consented to become a director, the 
 defendant withdrew his consent before the issue 
 of the prospectus, which was issued without his 
 authority ; or 
 
 (o) Tiiat the prospectus or notice was issued without 
 his knowledge or consent, and that, on becoming 
 aware of it, he forthwith gave reasonable public 
 notice that it was so issued ; or
 
 160 Of Deceit or Fraud. 
 
 Art. 66. (6) That after issue of the prospectus, and before allot- 
 
 ment, on finding out the untrue statements, he 
 withdrew his consent, and gave reasonable public 
 notice of his withdrawal, and of the reason 
 thereof. 
 
 It will be perceived that this statute really creates a new 
 statutory duty, the breach of which is a tort, and that 
 consequently it makes no alteration in the law relating to 
 
 ,; fraud. In short, it makes directors and promoters liable 
 
 j for carelessness as well as for fraud. 
 
 Elements of To return to the subject of the present section, the 
 fraud. elements of legal fraud are, : (1) intentional deceit ; 
 
 (2) practised with intent to induce another to act upon 
 it. For if it were otherwise, a man might sue his neighbour 
 for any mode of communicating erroneous information ; 
 such, for example, as having a conspicuous clock too slow, 
 since the plaintiff might thereby be prevented from attending 
 to some duty, or acquiring some benefit (b). 
 
 Art. 67. — WJien an action will lie for 
 fraudulent Statements. 
 
 (1) An action will lie, where, by reason of a 
 fraudulent representation made by the defen- 
 dant : 
 
 (a) The person to whom it was made has been 
 
 induced to act to his loss (c) ; or has 
 otherwise suffered loss which is the 
 natural consequence of the fraudulent 
 representation ; or 
 
 (b) A third person has been so induced, if the 
 representation was made with the direct 
 intention that he should so act (d). 
 
 {h) Barley v. Wulfoyyl, 9 Q. B. 197, 208. 
 (f) Paxley v. Freeman, 2 >Sni. L. C. 71. 
 (d) Langridge v. Le^-y, 2 M. <fe W. 519.
 
 Action will Lie for Fraudulent Statements. 161 
 
 (2) Provided that where the frciudulent state- Art^7. 
 ment consists of a false representation as to the 
 conduct, credit, abihty or deahngs of another, 
 with intent to procure for him credit, money or 
 goods, no action will lie unless the representation 
 is in writing signed by the defendant (e). 
 
 As Lord Selbobne said, in Smith v. Chadivick (/), which Elements of 
 was an action for deceit whereby the plaintiff was induced jg(.ej^_ 
 to enter into a contract to take shares : " I conceive tliat in 
 an action of deceit it is the duty of the plaintiff to establish 
 two things ; first, actual fraud, which is to be judged of by the 
 nature and character of the representations made, considered 
 with reference to the object for which they were made, the 
 knowledge or means of knowledge of the person making 
 them, and the intention which the law justly imputes to 
 every man to produce those consequences which are the 
 natural result of his acts ; and, secoudly, he must establish 
 that this fraud was an inducing cause to the contract ; for 
 which purpose it must be material, and it must have pro- 
 duced in his mind an erroneous belief, influencing his 
 conduct." In short, as was said by Buller, J., in 
 Pasley v. Freeman, uhi supra : " Fraud without damage, 
 or damage without fraud, gives no cause of action ; but 
 where these two concur, an action lies." >-' For an example 
 of fraud without damage, see Ajcllo v. Worsley ((/). 
 
 " It is now well established that in order to enable a person I'o whom 
 . . T 1 P 1 • !■ -I ■ ■ niade. 
 
 mjured by a false representation to sue for damages it is 
 
 not necessary that the representation should be made to 
 
 the plaintiff' directly : it is sufficient if the representation 
 
 is made to a third person to be communicated to the 
 
 plaintiff, or to be communicated to a class of persons of 
 
 whom the plaintiff is one, or even if it is made to the 
 
 public generally with a view of its being acted on and the 
 
 ((■) 9 Geo. 4, c. 14, s. 6. It will be observed tliat the signature must 
 be tliat of the defendant himself, and not of an agent or partner 
 (Siri/t V. Jew.sbury, L. R. 9 Q. B. 301 ; Mamn v. Williams, 28 L. T. 
 (N.s.) 232). 
 
 ( f) 9 App. Cas. 190. (;/) [1898] 1 Ch. 274.
 
 162 
 
 Of Deceit or Fraud. 
 
 Art. 67. 
 
 Illustrations 
 of fraud 
 followed by 
 damage. 
 
 plaintifl' as one of the public acts on it and suffers damage 
 thereby " (//). 
 
 (1) Thus, where one fraudulently misrepresents the amount 
 of his business, and the person to whom such representation 
 is made, acting on the faith thereof, purchases it and is 
 damnified, an action of deceit w^ill lie against the vendor (i). 
 But a mere careless statement as to the percentage of 
 profits on capital, made honestly, but untrue in point 
 of fact by reason of the defendant having omitted to include 
 trade buildings in his computation of capital, has been held 
 to give no right of action (A-). 
 
 (2) Similarly, where a gunmaker sold a gun to B., for 
 the use of C, fraudulently warranting it to be sound, and 
 the gun burst while C. was using it, and he was thereby 
 injured : — Held, that C. might maintain an action of fraud 
 against the gunmaker, as the statement with regard to the 
 soundness of the gun, though made to B., was intended to 
 be acted upon by C. (/). 
 
 (3) Previously to the Directors Liability Act, 1890, the 
 directors of a company circulated a prospectus, which 
 offered the issue of 7 per cent, preference shares to the 
 amount of £50,000, and represented that "guaranteed 
 dividends at the minimum rate of 7 per cent, per annum, 
 or £3 10s. each half-year's dividend," were payal)le half- 
 yearly on these shares until a specified date, and that this 
 dividend was " secured by a deposit with trustees, of a 
 sufficient amount of Government securities and first-class 
 bank and insurance stock to cover same." There was, in 
 fact, no such guarantee for the payment of the dividends, 
 nor were the dividends secured by deposit of any Govern- 
 ment securities or first-class bank or insurance stock. The 
 plaintiff, on the faith of this prospectus, applied for, and 
 was allotted, shares which proved worthless, and she there- 
 fore sued the directors for fraud. On these facts, and on 
 
 (/<) Ptr QuAiN, J., in Swift v. Wintfrhothnm, L. R. 8 Q. B. '244, and 
 see likhurdxon v. SilreMer, L. R. 'J Q- B. 34. 
 
 (i) Dohtll V. St«reit8, 3 B. &. C. G23 ; Smith v. Chadicirk, ubi supra, 
 (k) <;la<,ier v. Rolls, 62 L. T. 133. 
 (/) La7i(jrid(jt v. Levy, ubi ■supra.
 
 Action will Lie for Fraudulent Statements. 163 
 
 the evidence, it was held, thai: the statements in question Art. 67. 
 were false to the knowledge of the directors who made 
 them ; that they were made for the purpose of inducing 
 persons to take shares, and were calculated to mislead ; 
 and that consequently it was impossible to say that an 
 action for deceit would not lie [m). 
 
 (4) On the other hand, in Angus v. Clifford {n),^^eve Negligent 
 directors (also prior to the Directors Liability Act, tiW) ""^Ich^^^^ 
 carelessly, but honestly and without any intention to 
 deceive, stated, in a prospectus, that reports of certain 
 engineers were "prepared for the directors," the fact being 
 
 that they were prepared for the vendors who sold to the 
 company, it was held, that the directors were not liable. 
 As LiNDLEY, L.J., said, " Speaking of Derrij v. Peek broadly, 
 I take it that it has settled once for all the controversy 
 which was well known to have given rise to very consider- 
 able differences of opinion, as to whether an action for 
 negligent misrepresentation, as distinguished from fraudu- 
 lent misrepresentation, could be maintained. There was 
 considerable authority to the effect that it could, and there 
 was considerable authority to the effect that it could not : 
 and as I understand Dcrry v. Peck, it settles that question 
 in this wav, that an action for a negligent, as distinguished 
 from a fraudulent, misrepresentation, cannot be supported." 
 Of course, however, since the Directors Liability Act a 
 similar case would be decided the other way. 
 
 (5) The false statement need not be made with intent to Xo intent to 
 benefit the defendant. It is sufficient that it was made 
 maliciously and was followed by loss which a reasonable 
 
 man might have contemplated. Thus, where a foolish 
 practical joker told the plaintiff that her husband had had 
 both his legs smashed in a railway accident and that she was 
 to go to him at some distance immediately with appliances 
 for bringing him home, he was held liable for the nervous 
 shock and subsequent ill-health of the plaintiff (o). 
 
 [m) Knox v. llayman, 67 L- T. 137. 
 
 (7i) [1891] 2 Ch. 449. 
 
 [o] Wilkin>iOu V. Doirnton, |1S97] 1 Q. B. 57.
 
 164 Of Deceit or Fraud. 
 
 Art. 67. (6) So where a person is induced by the deceitful repre- 
 
 sentations of another to commit an act {ex. gr. invade the 
 ' territories of a friendly state), which is in fact a crime, but 
 which he believed to be lawful, he can sue the person who 
 made the representation for any da7nages which he may 
 have sustained ( jj). 
 
 Frauds by (7) Although, as above stated, it is now settled that the 
 
 '" ■■ defendant, in actions of deceit, must have been guilty of 
 
 moral delinquency, it has also been held, after much conflict 
 Barwicky. of opinion, that (except as to cases coming under para- 
 ftottBaul''' Si'^n^l^ (2) of the present article) the fraud of the agent, 
 acting within the scope of his employment and wnth a view 
 of benefiting the principal, is, in law, the fraud of the 
 principal. Thus, a plaintiff, having for some time, on a 
 guarantee of the defendants, supplied J. D., a customer of 
 theirs, with oats, on credit, for carrying out a Government 
 contract, refused to continue to do so unless he had a 
 better guarantee. The defendants' manager thereupon gave 
 him a written guarantee, to the effect that the customer's 
 cheque on the bank in plaintiff's favour, in payment of the 
 oats supplied, should be paid on receipt of the Government 
 money in priority to any other payment "except to this 
 bank." J. D. was then indebted to the bank to the amount 
 of £12,000, but this fact was not known to the plaintiff, nor 
 was it communicated to him by the manager. The plaintiff, 
 thereupon, supplied the oats to the value of £1,227. The 
 Government money, amounting to £2,676, w^as received by 
 J. D. and paid into the bank; but J. D.'s cheque for the 
 price of oats drawn on the bank in favour of the plaintiff 
 was dishonoured by the defendants, who claimed to detain 
 the whole sum of £2,676 in payment of J. D.'s debt to 
 them. The plaintiff having brought an action for fraud : 
 — Held, first, that there was evidence to go to the jury 
 that the manager represented the guarantee to be a 
 guarantee which would probably, or might probably, be 
 paid, whereas he knew, and fraudulently concealed from 
 the plaintiff, a fact which would make it highly improbable 
 
 {jj) Burrows v. Bhodes, [1899] 1 Q. B. 816.
 
 Action will Lie for Fraudulent Statements. 165 
 
 that it would be paid, aud accordingly there was fraud in Art. 67. 
 the agent ; and, secondly, that the defendants would be 
 liablelor such fraud of their agent committed in the course 
 of his service and for their benefit (g). 
 
 (8) Of course where an agent makes a fraudulent state- S^«P« °^^^^^ 
 ment outside the general scope of his employment, the 
 principal will not be liable. For instance, where the secre- 
 tary of a company by false statements induced persons to 
 take shares, it was held that the company was not liable ; 
 for it is no part of the duty of a secretary of a company to 
 make representations to persons to induce them to become 
 shareholders (r). And a fortiori will this be the case where 
 an agent makes the fraudulent statements for his own 
 benefit (s). 
 
 (9) In Conifoot v. Fowke (t) the question arose whether a Unjui^'^o"^^^^^ 
 principal is liable for the act of his agent who makes, on ^^^^^^_ 
 behalf of his principal but without his authority, a false 
 statement which he believes to be true, but which the prin- 
 cipal would have known to be untrue. A house agent 
 represented to an intending lessee that there was no objec- 
 tion to a house. There was, in fact, a brothel next door. 
 The principal knew of this ; the agent did not -.—Held, the 
 principal was not liable in an action of fraud. The agent 
 was not fraudulent, because he did not know that the 
 statement was untrue, and the principal had not himself 
 committed a fraud, because he did not make the statement. 
 How then could the principal be hable for a fraud which 
 neither he himself nor his agent had committed ? 
 
 (q) Barwirk v. Encjlish Joint Stock Bank, L. R. '2 Ex, 259. 
 
 (r) Xeirland>t v. National Employers' Accident As-mrauce Co. , 54 L. J. 
 Q. B. 428. 
 
 (,s) British, etc. Banking Co. v. Charnwood, etc. Bail. Co., 18 Q. B. D. 
 714. 
 
 (/) 6 M. & W. 358.
 
 166 
 
 Of Deceit or Feaud. 
 
 Art. 68. 
 
 Aet. 68. — Tliere micst^be^ active Fraud. 
 
 The general rule of law is, that mere silence 
 ^Yith regard to a material fact will not give a 
 right of action for fraud. 
 
 (1) There may, however, be statements of a fragmentary- 
 character, true as far as they go, but so distorted as to 
 convey a vt^holly erroneous impression ; and statements of 
 that kind made with intent to deceive may amount to 
 fraudulent statements although literally true. " Supposing 
 you state a thing partially, you make as much a false state- 
 ment as if you misstated it altogether. Every word may 
 be true, but if you leave out something which qualifies it, 
 you make a false statement. For instance, if pretending to 
 set out the report of a surveyor, you set out two passages in 
 his report and leave out a third passage which qualifies 
 them, that is an actual mis-statement" («). 
 
 (2) The defendant sent for sale, to a public market, pigs 
 which he knew to be infected with a contagious disease. 
 They were exposed for sale subject to a condition that no 
 warranty would be given and no compensation would be 
 made in respect of any fault. No verbal representation 
 was made by or on behalf of the defendant as to the condi- 
 tion of the pigs. The plaintiff having bought the pigs, put 
 them with other pigs which became infected. Some of the 
 pigs bought from the defendant, and also some of those 
 wuth which they were put, died of the contagious disease : 
 — Held, that the defendant was not liable for the loss 
 sustained by the plaintiff, for that his conduct in exposing 
 the pigs for sale in the market did not amount to a repre- 
 sentation that they were free from disease («•). But if 
 there had not been a warning that the purchaser must take 
 the goods "with all faults," an action might have lain, not 
 for fraud, but for breach of the vendor's duty to disclose 
 
 (m) Per Jamks, L.J., in Arkn-riijlif v. Xwho/d, 17 Cli. I)., at p. 318 ; 
 and conipaie Barwirk v. Eiujiish Join/ Strx-k Bunk, ■■■iipra, p. KM. 
 (iv) Ward v. Jlobbs, 4 App. Cas. 13.
 
 There must be Active Fraud. 167 
 
 dangerous qualities kno\Yn to him, as in Clarke v. Army and Art. 68. 
 Navy Co-operative Society (x). 
 
 (3) So, also, in Peek v. Gurncy (//), Lord Caikns remarked : 
 " I entirely agree with what has been stated by my noble 
 and learned friends before me, that mere silence could not, 
 in my opinion, be a sufificient foundation for this proceeding. 
 Mere non-disclosure of material facts, however morally 
 censurable, however that non-disclosure might be a ground 
 in a proper proceeding at a proper time for setting aside an 
 allotment or a purchase of shares, w^ould, in my opinion, 
 form no ground for an action in the nature of an action for 
 misrepresentation. There must, in my opinion, be some 
 active misrepresentation of fact, or, at all events, such a 
 partial and fragmentary statement of fact, as that the 
 withholding of that which is not stated makes that which 
 is stated absolutely false," 
 
 Fraud giving rise to an action for deceit must not be Misrepresen- 
 confused with misrepresentation of a material fact, which g' ^j^y_ 
 though made negligently or quite innocently may, neverthe- 
 less, afford a ground in equity for rescinding a contract or 
 refusing specific performance (-s). 
 
 The student must also not confuse actions of deceit with Warranty of 
 actions founded on a warranty of authority The rule as to '"'" ^°" ^' 
 the latter is as follows : " Where a person by asserting that 
 he has the authority of the principal, induces another to 
 enter into any transaction which he would not have entered 
 into but for that assertion, and the assertion turns out to be 
 untrue, to the injury of the person to whom it is made, it 
 must be taken that the person making it undertook that 
 it was true, and he is liable personally for the damage that 
 has occurred " [a). Actions of this kind are really actions 
 of contract, not of tort ; and in these case^'it is not necessary 
 to prove actual fraud, for the gist of the action is not 
 
 (X) [1903] 1 K. B. loo, 166. 
 (y) L. R. 6 H. L. 403. 
 (z) See Red'jrare v. Hard, 20 Ch. 1). 1. 
 
 (a) Per Lord Esher, in Firhank'--i E.ctcntor-i v. Hiunplireys, 
 IS (,). ]5. 1). .-)4, 62.
 
 relation. 
 
 168 Of Deceit or Fraud. 
 
 Art. 68. wilful deceit, but a warranty or promise that the assertion 
 is true (b). 
 
 Fiduciary- In earlier editions of this work it was stated that an 
 
 action of deceit would lie (a) where there has been actual 
 artificial means to prevent the plaintiff from ascertaining 
 the truth ; or (b) where the essence of the transaction 
 implies confidence reposed in the party concealing to 
 divulge all material facts. It seems, however, on further 
 consideration, that tacit dishonesty of this kind belongs 
 rather to the law of contract. A court of equity will set 
 aside a contract for mere concealment of material facts, 
 where the relation of the parties is of a fiduciary kind, 
 so that one party is under a duty to make a full disclosure 
 to the other, as, for instance, in the case of contracts be- 
 tween vendor and purchaser, between partner and co-partner, 
 parent and child, and guardian and ward (c). 
 
 Art. 69. — Limitation. 
 
 An action for deceit must be brought within 
 six years, unless the existence of the fraud was 
 concealed by the defendant, in which case the 
 action must be brought within six years after 
 the plaintiff discovers, or might by reasonable 
 diligence have discovered, the fraud (c/). 
 
 {}>) 8ee Starktij v. Bank of Ehtjlaud, [19(13] A. C. 114; atiiiniing 
 Olivtr V. Bank of England, [190-2] 1 Cli. (jlO. 
 
 (c) Erlander v. New Sombrero Phosphafe Co., 3 App. Cas. 1218, at 
 pp. 1230, 1243. 
 
 (d) Gihl>s V. Gnitd, 9 Q. B. U. 59.
 
 ( 169 ) 
 CHAPTEK VI. 
 
 OF UNLAWFUL COERCION AND CONSPIRACY. 
 
 Art. 70. — General Bides. 
 
 (1) A person who knowingly and without 
 sufficient justification induces another to break 
 a contract with a third person, wherel^y that third 
 person suffers damage', conniiits a tort, and may 
 be sued for damages. 
 
 (2) It is not actionable merely to induce or 
 persuade another not to enter into a contract with 
 a third person, although it is done maliciously, 
 and although the third person suffers damage. 
 
 (3) One who intentionally and without suffi- 
 cient justification by threats, intimidation, 
 molestation or conspiracy, induces persons not 
 to work for or trade with another whereby that 
 other suffers damage, commits an actionable 
 wrong. 
 
 (4) A combination of two or more persons, the 
 object of which is to injure a man's trade, is a 
 combination for an unlawful purpose, and, if it 
 result in damage, is actionable. 
 
 (5) A combination of two or more persons, 
 with the design not of injuring the trade of 
 another but of carrying on most advantageously 
 the trade of those who are parties to the
 
 170 
 
 Of Unlawful Coeecion and Conspieacy. 
 
 Art. 70. 
 
 Examples. 
 
 LumUxj V. 
 Gyt. 
 
 Ttmperton v. 
 Russell. 
 
 Inditcing 
 persons not 
 to enter into 
 contracts. 
 
 Allen V. 
 Flood. ■ 
 
 combination, is not unlawful and is not action- 
 able, although it results in damage to another. 
 
 (1) The plaintiff agreed with a famous singer to perform 
 in an opera. The defendant, a rival manager, offered the 
 singer a large sum of money to break her contract with the 
 plaintiff and sing for him. Assuming that there was an 
 actual contract of service, a breach of which the defendant 
 had knowingly bi'ought about, and the plaintiff had thereby 
 suffered damage, there was a good cause of action (a). 
 
 (2) In order to mduce the plaintiff to carry on his trade 
 in a particular manner, agreeably to the wushes of a trade 
 union, the defendants induced B. to break a contract he 
 had with the plaintiff for the supply of building materials. 
 The plaintiff thereby suffered damage and the defendants 
 were held liable (&). 
 
 (3) Lumley v. Gye was approved in Quinn Y.Leatliem (c) 
 in the House of Lords. In that case Lord Macnaghten 
 said {d) : " Was Lumley v. Gye rightly decided? I think 
 it was. ... I have no hesitation in saying that I 
 think the decision was right, not on the ground of malicious 
 intention — that was not, I think, the gist of the action — but 
 on the ground that a violation of legal right committed 
 knowingly is a cause of action, and that it is a violation of 
 legal right to interfere with contractual relations recognised 
 by law, if there be no sufficient justification for the inter- 
 ference." 
 
 (4) The plaintiffs were shipwrights employed "for the job " 
 on the repairs to the woodwork of a ship, but w^ere liable to 
 be ilischanjed at any time. Some ironworkers who were 
 employed on the ironwork of the ship objected to the 
 plaintiffs being employed, on the ground that they had 
 previously worked at ironwork on a ship for another firm. 
 
 (a) Lvmlcy v. Gye, 2 E. & B. 216 ; followed in Boiceu v. JIall, 
 6 Q. B. D. IV.is. 
 
 (b) Temperton v. Rimell, 11S93] 1 Q. B. 715. 
 
 (c) [1901] A. C. 495. ('./) Ibid. p. 510.
 
 General Rules. 171 
 
 the practice of shipwrights working on iron being resisted Art. 70. 
 by the trade union of which the ironworkers were members. 
 The defendant, who was a delegate of the union, was sent 
 for by the ironworkers, and informed that they intended to 
 leave off working. The defendant informed the employers 
 that, unless the plaintiffs were "discharged," all the iron- 
 workers would "be called out" on strike, that the 
 employers had no option, that the iron men were doing their 
 best to put an end to the practice in question, and that 
 wherever the shipwrights were employed the iron men 
 would cease work. There was evidence that this was done 
 to punish the plaintiffs. The employers, giving way to this 
 coercion, discharged the plaintiffs, i.e., lawfully terminated 
 their contracts of employment and refused to enter into 
 fresh contracts of employment with them, and they there- 
 upon sued the defendant, and the jury found that he had 
 mahciously induced the employers to "discharge" the 
 plaintiffs, and gave damages. The House of Lords, how- 
 ever, by a majority, dismissed the action, on the ground 
 that the defendant had violated no legal right of the 
 plaintiffs, done no unlawful act, and used no unlawful 
 means in inducing the employers to cease employing the 
 plaintiffs; and that therefore his conduct, however 
 malicious or bad his motive might be, was not action- 
 able (c). This case is clearly distinguishable from Lumley v. 
 Gyc and Tempcrton v. Bussell, for in those cases the 
 defendants induced an actual breach of contract ; whereas 
 in this case all the defendant did was to induce the 
 employers to discharge their men in accordance with the 
 terms of the contract of service and not to re-engage them. 
 There was no breach of contract, and the employers were 
 only induced to do what they had a perfect right to do. It 
 would be strange indeed if an action lay against A. at the 
 suit of B. for inducing C. to do what C. had a right to do. 
 
 (5) The plaintiffs w^ere endeavouring to trade with Molest ation, 
 natives on the coast of Calabar. The defendant fired a 
 cannon at the natives in order to drive them away and 
 
 (0 Alien V. Flood, [1S9S] A. C. 1.
 
 17-2 Of Unlawful Coekcion and Conspiracy. 
 
 Art. 70. thereby cleteiTed them from trading with the plaintiffs. 
 This was held actionable (/'). 
 
 (6) The plaintiff was a stone mason. The defendant was 
 
 held liable for threatening his workmen and customers with 
 
 mayhem and suits so that they desisted from doing business 
 
 with the plaintiff {g). 
 
 Trade (7) By s. 7 of the Conspiracy and Protection of Property 
 
 picketing. j^^^^ 1875(/0, "Every person who, with a view to compel 
 
 any other person to abstain from doing or to do any act 
 
 which such other person has a legal right to do or abstain 
 
 from doing, wrongfully and without legal authority, — 
 
 " (1) uses violence to or intimidates such other person or 
 
 his wife or children, or injures his property ; or, 
 " (2) persistently follows such other person about from 
 
 place to place ; or 
 " (3) hides any tools, clothes, or other property owned or 
 used by such other person, or deprives him of or 
 hinders him in the use thereof ; or 
 " (4) watches or besets the house or other place where 
 such other person resides, or works, or carries on 
 business, or happens to be, or the approach to 
 such house or place (?') ; or, 
 " (6) follows such other person with two or more other 
 persons in a disorderly manner in or through any 
 street or road . . . " ; 
 commits a criminal offence. 
 
 In J. Lyons d; Sons v. Wtlkins (_/"), the facts were as 
 follows : A strike was in progress at the plaintiffs' works, 
 in the course of which the works were "picketed" by 
 persons employed by the trade union of which the defen- 
 dant was an executive officer. It was admitted that the 
 
 (/) Tarhton v. JI'Gawley, 1 Peake, N. P. C. "iTH. 
 
 {(j) Garrett v. Taylor, Cro. Jac. 567. 
 
 (/() 8S & 39 Vict. c. 86. 
 
 (/) By the same section it is ])r()\i(le(l tliat attending at oi- near the 
 house or place where a person resides or works, or carries on business, 
 or happens to be, or the approach to such house or phxce, in order 
 merely to obtain or communicate information, shall not be deemed to 
 lie wa'tcliing or besetting within the meaning of the section. 
 
 (j) [iSOyj 1 Cii. 25-,.
 
 Geneeal Eules. 173 
 
 pickets used no violence, intimidation, or threats ; but, in Art. 70. 
 the opinion of the court, the evidence showed that the 
 picketing, or the acts done by the pickets, were done with 
 the view to compel the plaintiffs to change their mode of 
 conducting their business, and constituted watching aud 
 besetting, as distinguished from "attending merely to 
 obtain or communicate information," and accordingly an 
 injunction was granted, the court holding that the defen- 
 dant had committed both an offence against the Act and a 
 tort at common law. Lindley, M.E., in giving judgment, 
 said: "The truth is, that to watch or beset a man's house 
 with a view to compel him to do or not to do what is lawful 
 for him not to do or to do, is wrongful and without lawful 
 authority, unless some reasonable justification for it is con- 
 sistent with the evidence. Such conduct seriously interferes 
 with the ordinary comfort of human existence and the 
 ordinary enjoyment of the house beset, and such conduct 
 would support an action for a nuisance at common law. 
 Proof that the nuisance was ' peaceably to persuade other 
 people ' would afford no defence to such an action. Persons 
 mciji he peaceably ijermadcd, provided the method employed is 
 not a nuisance to other people.'" 
 
 (8) The owners of ships, in order to secure a carrying Lawful trade 
 trade exclusively for themselves and at profitable rates, combination. 
 formed an association, and agreed that the number of ships 
 to be sent by members of the association to the loading 
 port, the division of cargoes and the freights to be demanded, 
 should be the subject of regulations ; that a rebate of 5 per 
 cent, on the freights should be allowed to all shippers who 
 shipped only with members ; and that agents of members 
 should be prohibited, on pain of dismissal, from acting in 
 the ii-.terest of competing shipowners, any member to be at 
 liberty to withdraw on giving certain notices. The plaintiffs, 
 who were shipowners excluded from the association, sent 
 ships to the loading port to endeavour to obtain cargoes. 
 The associated owners thereupon sent more ships to the 
 port, underbid the plaintiffs, and reduced freights so low 
 that the plaintiffs were obliged to carry at unremunerative 
 rates. They also threatened to dismiss certain agents if
 
 174 Of Unlawful Coeecion and Conspiracy. 
 
 Art. 70. they loaded the plaintiffs' ships, and circulated a notice 
 that the rebate of 5 per cent, would not be allowed to any 
 person who shipped cargoes on the plaintiffs' vessels. The 
 plaintiffs having brought an action for damages against the 
 associated owners alleging a conspiracy to injure the 
 plaintiffs : — Held, that since the acts of the defendants 
 were done with the lawful object of protecting and extend- 
 ing their trade and increasing their profits, and since they 
 had not employed any unlawful means, the plaintiff's had 
 no cause of action (A:). 
 Unlawful ^9^ Yi\e subject of unlawful conspiracy presents many 
 
 difficulties, and the authorities are insufficient to lay down 
 safely any precise rules. Generally a conspiracy is unlaw- 
 ful if its purpose is to procure an unlawful object by any 
 means, or to procure a lawful object by unlawful means (/), 
 and a conspiracy to injure a man in his trade without 
 sufficient justification is a conspiracy to procure an unlawful 
 object. 
 
 A conspiracy to procure a lawful object, such as inducing 
 a man not to enter into a contract, would, it seems, be 
 unlawful if the means employed were threats of violence. 
 
 What amounts to "sufficient justification " it would be 
 rash to say in the absence of authority, but Glamonjan Coal 
 Co. V. Soiith Wales Miners Federal ion (?//) and Gihlan v. 
 Lo.bourers' Union- {n) may be consulted. 
 
 The effect of the authorities at present seems to be that 
 combinations to injure a man in his trade — 
 
 (a) by inducing customers or servants to break their 
 
 contracts with him, or not to deal with him, or 
 continue in his employment (o) ; or 
 
 (b) by compelling employers not to employ him (_^>), 
 
 (/.■) Mof/u/ Steamship Co. v. Mrdrojor ,ui<l 0/lirrs, -28 Q. B. 1). ms ; 
 [1892] A. C. 2.-). 
 
 {I) Per Lord Buami'TON, in (Jidini v. /.rufhon, [H'Ol] A. C, at 
 p. 528. 
 
 (n) [1903] 2 K. B. 600. {m) [1008] 2 K. B. 54--). 
 
 (o) (Jiiiiiii V. Lcathtm, [1901] A. ('. 495 ; Tonjxrtou v. Rime//, [1893] 
 1 Q. B. 71.-). 
 
 (p) aih/nn V. /Aihourer<<' Union, [1903] 2 K. H. OlMl.
 
 General Eules. 175 
 
 are jjyinid facie unlawful combinations and actionable if -^-rt. 70. 
 followed by damage. 
 
 It would seem, also, that even if the object were lawful 
 (as in Allen v. Flood), a conspiracy to procure such object 
 by threats and molestation would be unlawful by reason of 
 the unlawfulness of the means employed, as in /. Lyons £ 
 Sons V. Wilkins (q). 
 
 [q) Supra.
 
 ( 17(3 ) 
 CHAPTEK YII. 
 
 OF NEGLIGENCE. 
 
 Duty to 
 take care. 
 
 Art. 71.- — Definition. 
 
 (1) Negligence consists in the omission to do 
 something which a prudent and reasonable man 
 would do, or the doing something which a pru- 
 dent and reasonable man would not do {a). 
 
 (2) Negligence is wrongful whenever, as be- 
 tween the plaintiff and the defendant, there is a 
 duty cast upon the latter to be careful ; and any 
 breach of this duty which is the proximate cause 
 of damage to the plaintiff, is a tort (6). 
 
 It will be seen that there are three points to be established 
 to found an action for negligence : 
 \ (i) A duty to take care. 
 
 \ (ii) A breach of that duty — negligence. 
 
 ■ (iii) Damage as the proximate result. 
 
 The duty to take care arises out of many relations 
 equally impossible of strict definition or of enumeration 
 in a short compass. Briefly they may be grouped as 
 follows : 
 
 (a) A person who has in his custody or control or 
 delivers to another a dangerous thing, such as a 
 gun, dangerous chemicals, or a dangerous animal, 
 owes a duty to every one to take care that the 
 
 ((/) Jih/th V. Biriii'uKjham Watt.rtrorks Co., 11 Ex. 781, 7S4. 
 (J>) See per Lord Hersohell, Caledonian Rail. Co. v. Mnlhollanil, 
 [1898] A. C. 225.
 
 Definition. 
 
 177 
 
 dangerous thing shall do no damage (c). There Art. 71 
 
 are some things of so dangerous a character that 
 
 a man keeps them at his peril— for example, a 
 
 large body of water ((/). The same rule applies 
 
 at common law to fire (c) and wild animals. See 
 
 post, pp. 179, 180. 
 
 (b) Every person using a highway owes a duty to take . ^^ 
 
 care as regards every other person lawfully on 
 the highway. So if a person driving or riding 
 on a highway by his negligence runs over and 
 otherwise damages another person on the highway 
 an action will lie for the damage suffered (/). So, 
 too, persons in charge of ships at sea or on rivers 
 are bound to use care not to do damage to other 
 ships. 
 
 (c) Proprietors of public conveyances owe to passengers 
 
 a duty of taking care quite apart from contract ((j). 
 
 (d) Bailees of all kinds, including carriers of goods, owe 
 
 to their bailors a duty to take care of the goods 
 bailed. The degree of care required varies with 
 the nature of the bailment (/i). 
 
 (e) An occupier of premises owes a duty to persons 
 
 coming on to the premises on business, as guests, as 
 bare licensees, and even as trespassers— the degree 
 of care required varying according to the purpose 
 for which the persons come on his premises (;). 
 
 (f) See Dixon v. Bdl, 5 M. & S. 198 ; Vaughan v. Menlort, 3 Bing. 
 N. C. 468 ; Gtorge v. Skidmjton, L. R. 5 Ex. 1. 
 
 [d) See Ryland.^ v. Fletcher, L. R. 3 H. L. 330, supra, p. 18. 
 
 (e) Tuhervil v. Stamp, 1 Salk. 13. By 14 Geo. 3, c. 86, it is enacted 
 that no action shall be brought against any person upon whose pre- 
 mises any tire shall accidentally begin. But it seems that a person is 
 still liable for the conseciuences if he purposely or negligently lights a 
 fire. He docs so at his peril ( Vaiighan v. Menlove, .siijira, and Jones v. 
 Festiniog Railway, L. R. 3 Q. B. 733). 
 
 (/) See Dariesx. Mann, 10 M. i^ W. T)!!), and i>ust, p. 185. 
 
 (g) See supra, p. 38. 
 
 (h) See Coggs v. Bernard, 1 Sm. L. C, and supra. Art. 13. 
 
 (0 See Hearen v. Pender, 11 Q. B. D. 503, ]>ost, p. 181 ; Indcrmaury. 
 DanU'X, L. R. 1 C. P. -274, post, p. ISl ; and MUhr v. Hancock, [\SQ.i] 
 ■2 g. B. 177, ;^o.s<, p. 182.
 
 178 
 
 Of Negligence. 
 
 Art. 71. 
 
 Illustrations. 
 — What is 
 negligence. 
 
 Duty arising 
 from control 
 of dangerous 
 things. 
 
 (f) A doctor or surgeon is l^ound to take care not to do 
 
 damage to a patient (k). 
 
 (g) Owners of adjoining premises owe to one another, 
 
 and owners of premises adjoining highways owe 
 to the pubhc, a duty to take care that their 
 premises shall not cause damage by their ruinous 
 condition. Many cases of this kind may be more 
 conveniently treated of as nuisances, and are more 
 fully dealt with in Chapter Vlll. 
 
 (1) A water company w^hose apparatus was constructed 
 with reasonable care, and to withstand ordinary frosts, was 
 held not to be liable for the bursting of the pipes by an 
 extraordinarily severe frost (/). 
 
 (2) And so, where a railway company's line was misplaced 
 by an extraordinary flood, and by such misplacement injury 
 was done to the plaintiff, it was held that no action could 
 be maintained against the company (7/;). 
 
 (3) Again, a valuable greyhound was delivered by his 
 owner to the servants of a railway company, who were not 
 common carriers of dogs, to be carried ; and the fare was 
 demanded and paid. At the time of delivery the greyhound 
 had on a leather collar, with a strap attached thereto. In 
 the course of the journey, it being necessary to remove the 
 .greyhound from one train to another which had not then 
 come up, it was fastened by means of the strap and collar 
 to an iron spout on the open platform of a station, and, 
 while so fastened, it slipped its head, ran on the line, and 
 was killed : — Held, that the fastening the greyhound by 
 the means furnished by the owner himself, which at 
 the time appeared to be sufficient, was no evidence of 
 negligence («). 
 
 (4) Where the plaintiff was in the occupation of certain 
 farm buildings, and of corn standing in a held adjoining 
 
 (k) 8ee Pippin v. Sheppard, 11 Price, 400; ahuhrcll y. Stegtjall,. 
 5 Bing. N. C. 7.)3, -supra, p. 38. 
 
 (/) Uli/th V. Binninrjham Watcrirorlcx Co., 11 Ex. 7S1. 
 (m) Withtr-f V. North Kent liuil. Co., 27 L. J. Ex. 417. 
 (?i) Richardson v. North Eadtrti Rail. Co., L. R. 7 C. P. 78.
 
 Definition. 179 
 
 the tielcl of the defendant, and the defendant stacked his Art. 71. 
 hay on the latter, knowing that it was in a highly dangerous 
 state and likely to catch fire, and it subsequently did ignite 
 and set fire to the plaintiff's property, it was held, that the 
 defendant was liable (o). 
 
 (5) So, where the defendant entrusted a loaded gun to 
 an inexperienced servant girl, with directions to take the 
 priuhng out, and she pointed and fired it at the plaintiff's 
 son, wounding and injuring him, it was held that the 
 defendant was liable. For entrusting a loaded gun to such 
 a person was an act which a reasonable and prudent man 
 would not have committed (j;). 
 
 (6) Again, where the defendant negligently compounded 
 a hair wash of dangerous chemical ingredients, and a person 
 using it, and for whose benefit it was bought, suffered 
 injury, the defendant was held liable (q). 
 
 (7) Quite apart from any warranty or the terms of the 
 contract of sale, the vendor of goods which have some 
 dangerous quality of which he knows, but of which the 
 purchaser cannot be expected to be aware, ow^es a duty to 
 the purchaser to take reasonable precautions by warning 
 him that special care will be requisite, and for damages 
 resulting from breach of that duty an action lies. Thus, 
 where the defendants sold a tin of chlorinated lime, know- 
 ing that it was likely to cause danger to a person opening- 
 it unless special care was taken, and the danger was not 
 such as would be known by the purchaser, the defendants 
 were held liable for damages caused to the plaintiff by 
 opening the tin w'ithout taking proper precautions, in 
 consequence of which there was an explosion and her eyes 
 were injured (r). And there is a similar duty on the part 
 of one gratuitously lending goods to another, for breach of 
 which, followed by damages, an action will lie. Note, that 
 
 (o) VaiujhuH V. Menlovt, 3 Biiig. N. C. 4()S. 
 
 ( />) Dixon V. Bell, 5 M. & S. 198. 
 
 (q) Geonje v. SkiviiKjton, L. R. 5 Ex. 1. 
 
 (r) Clarke v. Arnuj and Nary Co-optratict Sockty, [1903] 1 K. li. 
 155.
 
 180 Of Negligence. 
 
 Art. 71. in this case, too, it is essential to show knowledge of the 
 defect on the part of the lender (.s). 
 
 Dangerous (8) So, if a man hioivincjly keeps dangerous animals, he 
 
 is answerable for any injmy they may commit, and that, 
 too, though he has done his best to secure their safe keeping. 
 In other words, he who keeps an animal of the above descrip- 
 tion [t), knowing it to be dangerous, does that which, in the 
 eyes of the court, a reasonable man would not do {u). If 
 the animal is by nature dangerous, no actual knowledge of 
 its previous disposition is necessary, and in that case he 
 keeps it at his risk {x). But if the animal is naturally 
 domestic, then actual knowledge (technically called 
 "scienter") of its fierceness must be proved (t/). It is 
 not necessary, in order to sustain an action against a 
 I person for negligently keeping a ferocious dog, to show 
 
 \ I that the animal has actually bitten another person be- 
 
 \ fore it bit the plaintili' : it is enough to show that it has, 
 
 to the knowledge of its owner, evinced a savage disposi- 
 tion, by attempting to bite (a). The previous tendency to 
 bite must, however, have been to bite human beings, and 
 not merely other animals [h). It has been held that, if the 
 owner of a dog appoints a servant to keep it, the servant's 
 knowledge of the animal's disposition is the knowledge of 
 the master, for it is knowledge acquired by him in relation 
 to a matter within the scope of his employment (c). But 
 where the complaint is made to a servant, who has no 
 control over the defendant's business, nor of his yard where 
 his dog was kept, nor of the dog itself, the knowledge of 
 the servant would not necessarily be that of the master {d). 
 
 (s) C'otKjh/in V. Gillison, [1890] 1 Q. B. 145. 
 (t) May V. Burden, 9 Q. B. lUl. 
 (u) Cox V. Burhidye, 13 C. B. (x.s.) 430. 
 
 (x) See Fi/hnni v. People's Pa/ace Co. (tlie case of a tame elephant), 
 25 Q. B. D. 258. 
 
 (y) B. V. Hu(i<jiius, 2 Ld. Rayni. 1583. 
 
 (a) Worth v. OiUiiuj, L. R. 2 C. P. 1 ; and see also Simsou v. GeiH-rnI 
 Omnihn.-< Co., L. R. 8 C. P. 390, a case of a kicking horse. 
 
 (b) Osborne v. Choqueel, [1896] 2 Q. B. 109. 
 
 {(•) Baldinin v. Casella, L. R. 7 Kx. 325. , 
 
 (d) <SVi/e.v Y. Cardiff Steam Xarvjatioii Co., 33 L. J. Q. ]>. 310; and 
 see Applebee v. Percy, L. R. 9 C. P. 647.
 
 Definition. 181 
 
 By 28 & 29 Vict. c. 60, s. 1, scienter of a dog's disposition, Art. 71. 
 which has injured sheep or cattle, need not be proved. It ., ~ 
 has been held that horses are to be included under the term 
 cattle (e). 
 
 (9) Where a workman came on business to the defendant's Persons 
 manufactory, and there fell down an unguarded shaft, the|°"""^. °" 
 defendant was held to be liable. As the plaintiff came 
 
 , I upon the premises on business which concerned the occu- 
 
 \ pier, he came by his implied invitation, and therefore was 
 
 entitled to expect that the occupier would use reasonable 
 
 care to prevent damage from unusual danger which he 
 
 knew, or ought to have known of (/). 
 
 (10) The plaintiff, a licensed waterman, having complained 
 to the person in charge that a barge of the defendants' was 
 being navigated unlawfully, was i-eferred to the defendants' 
 foreman. While seeking the foreman, he was injured by 
 
 >J the falling of a bale of goods so placed as to be dangerous, 
 \ and yet to give no warning of danger : — Held, that the 
 \lefendants were liable [cj). 
 
 (11) In the case of Heavoi v. Pender {h), the defendant, Duty of 
 
 a dock owner, had erected a staging round a ship, under a o'^^*^"P|^«'i' "f 
 contract with the shipowner. The plaintiff was a workman 
 in the employ of a painter who had contracted with the 
 shipowner for the painting of the ship. In order to do this 
 the plaintiff had to use the staging. Owing to the defen- 
 dant's negligence the staging fell, and the plaintiff was 
 injured : — Held, reversing the court below, that the plaintiff 
 being engaged on work in the performance of which the 
 • defendant as dock owner was interested, the defendant was 
 under an obligation to him to take reasonable care that the 
 staging was safe, and that for neglect of that duty the 
 defendant was liable. 
 
 (12) Where a dock-master or wharhnger invites a vessel 
 to a particular place to unload, and, owing to an inequality 
 in the bottom of the dock, the vessel is injured, the dock 
 
 (e) Wriiiht V. Pcansou, L. R. 4 Q. B. 582. 
 
 (/) Indcrmaur v. Dames, L. R. 1 C. P. 274 ; L. R. 2 C. P. .SI 1. 
 
 (.'/) Whilt V. France, 2 C. P. I). 308. 
 
 (/') 11 <,>. V>. 1). 50.3.
 
 182 Of Negligence. 
 
 Art. 71. company or wharfinger is liable. For the dock-master or 
 wharfinger either knew, or ought to have known, of the 
 danger ; and in either view was negligent («'). 
 
 LaniUord n 3) So too, though apart from contract, a landlord owes 
 
 and tenant. . 
 
 no duty to his tenant to take care that the demised pre- 
 mises shall be safe (k) ; yet where he lets flats but retains 
 control of the common staircases, passages, and roof, he 
 j owes a duty towards the tenants and persons coming to 
 ' the flats on business with the tenants, to keep them in 
 a reasonably safe condition, and an action will lie at the 
 suit of such a person who is injured by reason of their 
 defective condition (/). 
 
 Guests. nj^\ There is also a dutv imposed on occupiers of premises 
 
 licensees, and ^ ' "i t 
 
 trespassers, to take reasonaiDle care that guests, licensees, and even 
 
 trespassers shall not be injured by the dangerous state of 
 
 the premises. But the amount of care which an occupier 
 
 is bound to take is less than in the case of persons 
 
 coming on business. " No higher duty is imposed on 
 
 the defendant than that he should not set a trap "' {in) ; 
 
 that is to say, guests and licensees can only claim if they 
 
 are injured by hidden dangers, dangers which the defendant 
 
 by his conduct has led them to suppose do not exist. 
 
 Thus, in Southcotc v. Stanley (n), the plaintiff was a 
 
 guest of the defendant, and when leaving the house a 
 
 loose pane of glass fell from the door as he was pushing it 
 
 open and cut him. It was held that the plaintiff being a 
 
 guest, was for the time being one of the family and could 
 
 not recover for an accident, the liability to suffer which he 
 
 shared in common with the rest of the family. 
 
 (15) Where a contractor was engaged in making an 
 
 excavation with a steam crane, and a person came and 
 
 \ looked on idly, and, in consequence of a defect in the crane. 
 
 / 
 
 {/) See Oii-ners of Apollo v. PoH Talhot Co., [1891] A. C. 499. 
 
 (k) Liuit V. Cox, [1897] 1 Q. B. 41.1. 
 
 (/) Miller V. Hanrock, [189.S] 1 Q. B. 177 ; Ilnnjroves Aroiison <L- 
 i'o. V. JIartopp, [190.")] 1 K. B. 47'i (damage to tenants by reason of 
 landlord's neglect to clean out rainwater gutter of roof, control of which 
 was retained l)y the landlord). 
 
 (m) Per Willks, J., in Iloiuh-idl v. Smytht, 7 C. B. (x.s.) 731. 
 
 (a) 1 H. & N. 247.
 
 Definitions. 1^>3 
 
 lie was killed, it was held that there was no evidence to Art. 71. 
 sustain an action by his widow. As Lord Eshek, M.R., 
 put it : " There was no evidence to show that the defen- 
 dant's workmen had reason to expect the deceased to be at 
 the spot where he met with his death. There was no 
 
 K contract between the defendant and the deceased ; the 
 defendant did not undertake with the deceased that his 
 servants should not be guilty of negligence ; no duty was 
 cast upon the defendant to take care that the deceased 
 should not go to a dangerous place " (o). 
 
 (16) Corby v. Hill (p) is a case in which an occupier was 
 held liable for " a trap." The plaintiff was permitted to 
 use a private road belonging to the defendant. One night 
 a heap of slates was left in the road unlighted, and the 
 plaintiff coming along in the dark fell over it, and was hurt. 
 The permission to use the road was an implied intimation 
 that it was safe for use, and the leaving the heap of slates 
 on it in the dark amounted to setting a trap. Compare 
 with this case Hounsell v. Smythe{q). There the defendant 
 was allowed to cross some waste laud, and in doing so he 
 fell into an unfenced quarry. The quarry was not near a 
 highw'ay : — Held, there was no duty to fence the quarry for 
 the benefit of a mere licensee. 
 
 Prom the above rule and illustrations, it will be seen that Degree of A, 
 the degree of care which a person is bound to use in regard ^>^^^ nds""'' 
 to others is relative, and that in deciding whether a given circum- 
 act is, or is not, negligent, the circumstances attending each ^^^"f-^^- 
 particular case must be fully considered. " A man," it has 
 been said, " who traverses a crowded thoroughfare with . ^^^ 
 
 edged tools, or bars of iron, must take especial care that he / ' 
 
 does not cut or bruise others with the things he carries. 1 \ 
 
 Such person would be bound to keep a better look out than / C^ 
 
 the man who merely carried an umbrella ; and the person 
 who carried an umbrella would be bound to take more care 
 in walking with it than a person who had nothing at all in 
 his hands." 
 
 (o) Bafche/orv. Fortesnui, 11 Q. B. D. 474. 
 (/>) 4C. B. (xv.s.) 556. 
 iq) 7C. B. (N-.s.) 731. 
 
 f
 
 184 
 
 Of Negligence. 
 
 Art. 72. 
 
 ^C., 
 
 Illustrationis. 
 
 (jieneral 
 
 illustrations 
 
 x\kt. 72. — Contrihutorij NefjUgence. 
 
 (1) Though neghgence, whereby actual damage 
 is caused, is actionable, yet if the damage would 
 not have happened had the plaintiff himself used 
 ordinary care, the plaintiff cannot recover from 
 the defendant. 
 
 (2) But where the plaintiff's own negligence 
 is only remotely connected with the accident, 
 and the defendant might by the exercise of 
 ordinary care have avoided the accident, the 
 plaintiff will be entitled to recover. 
 
 (1) This rule is well illustrated by two cases, in each of 
 which the damnum was the same. In Fordham v. London, 
 Brighton and South Coast Bail. Co. (r), the facts were 
 these : The guard of one of the defendants' trains forcibly 
 closed the door of one of the carriages without giving any 
 warning, whereby the hand of the plaintiff, tclio icas 
 entering the carriage, was crushed. It was held, that the 
 jury were justified in finding that the guard was guilty of 
 negligence, and that there was no contributory negligence 
 on the part of the plaintiff. 
 
 (2) Where, however, the plaintiff, on entering a railway 
 carriage, left his hand on the edge of the door half a minute 
 after so entering, and the guard gave due warning before 
 shutting the door, it was held that the act was attributable 
 to the plaintiff's contributory negligence, in leaving his 
 hand carelessly upon a door which he must have known 
 would be immediately shut. But for that fact no accident 
 
 \ would have happened (s) . 
 
 (3) And so, in cases of collision between carriages, the 
 question is, whether the disaster was occasioned wholly by 
 the negligence or improper conduct of the defendant, or 
 whether the plaintiff himself so far contributed to the 
 
 (/•) L. R. 4 C. P. Gin. 
 
 (.<) likhdixl-ion V. MeAropolitfui Hail. Co., L. R. 3 C. P. ;'>74 u ; 
 Drtiri/ V. Xorth Eastern Hail. Co., [1901] 2 K. B. '^-I-I.
 
 Contributory Negligence. 185 
 
 disaster, by his own negligence, or want of conniion and Art. 72. 
 ordinary care, that, but for his default in this respect, the 
 disaster would not have happened. In the former case he 
 recovers, in the latter not (t). 
 
 (4) If, however, although the plaintiff has been guilty of Illustrations 
 some want of care, it does not appear that the accident would ^|'yj,7ii^rence of 
 not have happened if he had used ordinary care, he will be plaintiff no 
 entitled to recover (u). The law on this point was thus «-'^c"^«'- 
 summarised by Willes, J. : "If both parties were equally 
 to blame, and the accident the result of their joint negli- 
 gence, the plaintiff could not be entitled to recover. If the 
 negligence and default of the plaintiff w^as in any degree the 
 proximate cause of the damage, he could not recover, how- 
 ever great may have been the negligence of the defendant. 
 But if the negligence of the plaintiff was only remotely 
 connected with the accident, then the question is, whether 
 the defendant might not, by the exercise of ordinary care, 
 have avoided it " {x). Therefore, where the plaintiff left 
 his ass with its legs tied in a public road, and the defendant 
 drove over it, and killed it, he was held to be liable ; for he 
 was bound to drive carefully, and circumspectly, and had 
 he done so he might readily have avoided driving over 
 the ass {y). 
 
 (5) But where the defendant negligently and wrongfully Contrary 
 left a pole across a highway, and the plaintiff, by riding 
 negligently, ran against it and was hurt, it w^as held that as, 
 
 if he had used ordinary care, he might have seen the pole 
 and avoided it, the accident was entirely due to his own 
 neghgence, and the defendant was not liable (a). 
 
 (6) For many years it was thought that where a person Doctrine of 
 voluntarily engaged another person to carry him, he so i<l^'"tifacation. 
 identified himself with the carrier as to be precluded from 
 
 {t) Tuff V. Warman, 27 L. J. C. P. 322. 
 
 (m) Radky v. London and North Wedern Bail. Co., 1 App. Cas. I'A 
 See also Duhiin, Widdow and Wexford Rail. Co. v. Slatttri/, 3 App. Cas. 
 11.55. 
 
 (.r) Tuff V. IVarman, 27 L. .J. C. P. .322. 
 
 ((/■) IJavie'i V. Mann, 10 M. & W. 549. 
 
 (a) Bntttrfithlw Forresttr, 11 East, 60.
 
 186 
 
 Of Negligence. 
 
 Art. 72. 
 
 Contributon- 
 negligence 
 in infants. 
 
 suing a third partj^ for negligence in cases where the carrier 
 was guilty of contributory negligence {b). However, this 
 doctrine w^as overruled by the House of Lords, in the case 
 of The Bernina (c), and there is no longer any rule of 
 law that the driver of an omnibus, or coach, or cab, or the 
 engineer of a train, or the master of a vessel, and their 
 respective passengers, are so far identified as to affect the 
 latter with any liability for the former's contributory 
 negligence {d). 
 
 (7) It was decided many years ago that, where the 
 plaintiff is a child of tender years, it is not necessarily 
 a good defence to an action of negligence to prove that 
 he himself contributed to his injury. In that case the 
 defendant left a cart unattended in the street. The 
 plaintiff, a boy of seven, climbed into the cart to play, 
 another boy led on the horse, and the plaintiff fell and was 
 hurt. If he had been a grown man it would have been a 
 good defence that the proximate cause of the accident was 
 his own wrongdoing — but the court held that as much care 
 cannot be expected of a boy as of a grown persdfi-:~'=and the 
 act of the plaintiff, considering his age, was not such as to 
 disentitle him from recovering {e). And, notwithstanding 
 several cases to the contrary (/), this seems to be still the 
 law. Thus, in the recent case of Harrold v. Watney (g), it 
 was held by the Court of Appeal that the owner of a rotten 
 fence adjoining a highway was liable to a boy who, in 
 attempting to climb it (which he had no right to do), was 
 crushed and otherwise injured. Anyhow, it appears that 
 what would amount to contributory negligence in a grown- 
 up person, may not be so in a child of tender years (/a). 
 
 (/') Thoroijood v. Bryan, S C. B. llo. 
 
 (f) 13 App. Cas. 1. 
 
 {(l) Maftheics \. London Trainn-ay'< Co., ."iS L. J. Q. B. \'l. 
 (e) Lynch v. Xurdin, 1 Q. B. 29. 
 
 (/) IIiKfhts V. Macfie, 2 H. & C. 744 ; Man<iaii v. Atttrton, L. R. 
 1 Ex. 239.* 
 
 (g) [1898] 2 Q. B. .320. See al.st. Jtir-^ou v. Gatti, 2 T. L. R. 441. 
 (h) l\r Kkllv, C.B., Lay v. Midland Hail. Co., 34 L. T. 30. It 
 
 will be noticed, however, that Hun-old v. Watney and Jeirsou. v. Gaffi 
 were nuisance cases, and in the former VAi"(ii[AN Williams, L.J., 
 expressly decided the case ou that ground.
 
 CONTRIEUTOEY NEGLIGENCE. 187 
 
 (8) It has been held that where an infant is incapable of Art. 72, 
 
 taking care of himself, he cannot recover if the person in ,, T 
 
 ° ^ Fersons in 
 
 whose charge he was, was guilty of contributory negli- charge of 
 gence (t). But whether this is consistent with principle ""'^"t^- 
 seems questionable. For the person in charge is not the 
 agent of the child, but of its parent or guardian ; and in 
 other respects the case of The Bernina (j) would seem to 
 apply. 
 
 Art. 73. — Proximate Cause. 
 
 \ The negligence of the defendant must be the 
 I proximate cause of the damage^ 
 
 As we have seen (/>•) wherever damage is a part of the General 
 cause of action, it must be shown that the damage com- 1^""^^P ®- 
 plained of was the natural and probable result of the 
 wrongful act. Illustrations will be found at pp. 25 and 
 91 — 93, many of which are cases of negligence. 
 
 It sometimes happens that though the defendant was Combined 
 negligent, the real effective cause of the damage was either "^gligence 
 the negligence of the plaintiff or the negligence of a third and third 
 person. The former is dealt with as one aspect of contribu- I'^'-^'^y- 
 tory negligence. It is well illustrated by Butter field v. 
 Forrester (I). When the immediate cause of the damage 
 is the interference of a third party, it does not necessarily 
 follow that the defendant is not liable. If the defendant's 
 negligence is an effective cause of the damage, he is liable, 
 although the damage would not have occurred but for the 
 interference of a stranger (??i). 
 
 (1) Thus, if a driver of a van leave his cart unattended in llhistrations 
 the street, he (or his master) may be liable for the damage 
 
 ('■) Wul/e V. Xorth Eastern Nail. Co., El. B. & E. 719. 
 
 (j) Supra, p. 186. 
 
 (k) Supra, Art. 5, p. 24. 
 
 (/) Supra, Art. "2. lUustration (")). 
 
 (m) Enijkhart v. Furrnnt, [1897] 1 Q. B. 243.
 
 188 Of Negligence. 
 
 Art. 73. caused by some third person wrongfully interfering with the 
 cart and causing the horse to move on. For the wrongful 
 interference of a stranger is, in such circumstances, a 
 natural and probable result of the cart being left 
 unattended (w). It is, in every case, a question of fact 
 whether the negligence of the defendant was an effective 
 cause of the damage or iTierely a remote cause. 
 
 (2) So where a van was left on the defendants' premises 
 in a place where it was perfectly safe unless interfered with 
 by strangers, and there was no reason to foresee the inter- 
 ference of strangers, the defendants were not liable for 
 damage resulting from boys wrongfully breaking in and mis- 
 chievously starting the van to run down an incline. In 
 this case the Court of Appeal held (1) that there was no 
 evidence of negligence on the part of the defendants, and 
 (2) that even assuming there was, the negligence was not 
 an effective cause of the damage (o). 
 
 (3) So where the defendant had taken the plaintiff's horse 
 under an agreement for agistment and put it into a field 
 separated by a wire fence from a cricket field, and by the 
 negligence of the defendant's servants a gate was left open 
 and the horse escaped into the cricket field, it was held to 
 be the natural consequence that the cricketers should 
 proceed to drive the horse back into the defendant's field. 
 Whilst being so driven back the horse hurt itself against 
 the wire fence, and the defendant was held liable, as the 
 negligence of his servants in leaving the gate open was an 
 effective cause of the accident (j^;). 
 
 (n) Illidfje v. Goodwin, 5 C. & P. 190; Lt/uch v. Niwdin, 1 Q. B. 29. 
 (o) McDowall V. Great Western Rail. Co., [190.3] 2 K. 15. 3.31. 
 [p) Halestrap v. Gregory, [1895] 1 Q. B. 5(11.
 
 Onus of Proof. 189 
 
 Art. 74. 
 Art. 74. — Onu^ of Proof. — 
 
 (1) The onus of proving negligence is on the 
 plaintiff ; and of proving contributory negligence 
 on the defendant {q). 
 
 (•2) But where a thing is solely under the 
 management of the defendant or his servants, 
 and the accident is such as, in the ordinarj- 
 course of events, does not happen to those having 
 the management of such things, and using 
 proper care, it affords i)rhncl facie evidence of 
 negligence (r). 
 
 (1) Thus, where a horse of the defendaut suddenly bolted Runaway 
 . . horse. 
 
 witliout any explainable cause, and, swerving on to the 
 
 footpath, collided with and injured the plaintiff, it was held 
 that the plaintiff had not produced any evidence of negli- 
 gence sufficient to entitle him to recover. For it is no 
 negligence to drive a horse along a public street, and horses 
 will occasionally run away without any negligence of the 
 driver (s). 
 
 (2) So where the dead body of a man was found on the Accident 
 defendants' railway near to a level crossing, the man having t^^'^explana- 
 been killed by a train which bore the usual head-lights, but tions. 
 
 did not whistle, it was held, in an action by the widow, that 
 there was no evidence of negligence on the defendants' part. 
 For, as Lord Halsbuky said, " One may surmise, and it is 
 but surmise and not evidence, that the unfortunate man 
 was knocked down by a passing train while on the level 
 crossing ; but assuming in the plaintiff's favour that fact 
 to be established, is there anything to show that the train 
 ran over the man rather than that the man ran against the 
 train?" (/■). 
 
 (7) Dublin, WicHow, etc. Bail. Co. v. Slattery, 3 App. Cas. Ilfi9. 
 
 (/•) Scott V. London, etc. Dock Co. 34 L. J. Ex. 220 ; Byrne, v. Bonrllc, 
 2 H. & C. 722. 
 
 (■■<) Manzoni v. DoiKjlas, (i Q. B. D. 145. 
 
 (t) Waktliii V. London, and South WfMtrn Rail. Co., 12 App. Cas. 41. 
 See also Darey v. London and South Wtifern Rail. Co., 12 Q. B. D. 7»>.
 
 190 
 
 Of Negligence. 
 
 Art. 74. 
 
 Accident 
 jyrima facie 
 due to 
 negligence. 
 
 (3) On the other hand, where a person was walking in a 
 puhhc street and a barrel of flour fell upon him from 
 a window of the defendant's house, it was held suflicieut 
 jyrimd facie evidence of negligence to cast on the defendant 
 the onus of proving that the accident was not attributable 
 to his want of care. For barrels do not usually fall out of 
 windows in the absence of want of care («). But where the 
 defendant was gratuitously driving the plaintiff, and the 
 kingbolt of the carriage broke and the horses consequently 
 bolted, and the plaintiff was injured, it was held that there 
 was not sufficient evidence of negligence to render the 
 defendant liable. For, as Lord Chelmsford, referring to 
 cases such as that last cited, said : " This case is very 
 different. There is nothing more usual than for accidents 
 to happen in driving without any want of care or skill on 
 the part of the driver" (v). In short, the question must 
 always depend on the nature of the accident. In general, 
 where an accident may be equally susceptible of two 
 explanations, one involving negligence, and the other not, 
 the plaintiff must give some evidence of want of care. But 
 where the probability is that the accident could only have 
 had a negligent origin, the presumption will be reversed. 
 
 Art. 75. — Duties of Judge (iikJ Jiirij. 
 
 Whether there is any evidence, to be left to 
 the jury, from which neghgence causing the 
 injury complained of may be reasonably inferred, 
 is a question for the judge. It is .for the jury to 
 say whether, and how far, the evidence is to be 
 believed {x). 
 
 That is to say, the judge should not leave the case to the 
 jury merely because there, is a scintilla of evidence, but 
 
 («) Bi/rue V. Boadk, 33 L. J. Kx. 13 ; .sVo// v. London, rtc. Dock Co., 
 ■supra. 
 
 ir) Moffatt V. Batemati, L. R. 3 V. C. 11.5. 
 
 (x) Mtlropo/itan Rail. Co. v. Jack-son, 3 App. Cas. 193.
 
 Duties of Judge and Jury. 191 
 
 should rather decide whether there is any evidence from Art. 75. 
 which neghgence may be reasonabhj inferred, and tlaen leave 
 it to the jury to find whether upon that evidence neghgence 
 ought to be inferred. The law is thus sununarised in 
 Metropolitan Bail. Co. v. Jadkson (y) : " The judge has 
 a certain duty to discharge, and the jurors have another 
 and a different duty. The judge has to say whether any 
 facts have been established by evidence from which negli- 
 gence viay be reasonably inferred : the jurors have to 
 say whether from those facts, when submitted to them, 
 negligence ottght to be inferred. It is, in my opinion, 
 of the greatest importance, in the administration of justice, 
 that these separate functions should be maintained, 
 and should be maintained distinct. It would be a serious 
 inroad on the province of the jury, if, in a case where there 
 are facts from which neghgence may reasonably be inferred, 
 the judge were to withdraw the case from the jury, upon 
 the ground that in his opinion neghgence ought not to be 
 inferred. And it would place in the hands of the jurors a 
 power which might be exercised in the most arbitrary 
 manner, if they were at liberty to hold that negligence 
 might be inferred from any state of facts whatever. To 
 take the instance of actions against railway companies : 
 a company might be unpopular, unpunctual and irregular 
 in its service, badly equipped as to its staff, unaccom- 
 modating to the public, notorious, perhaps, for accidents 
 occurring on the line, and when an action was brought for 
 the consequences of an accident, jurors, if left to themselves, 
 might, upon evidence of general carelessness, find a verdict 
 against the company in a case where the company was 
 really blameless. It may be said that this would be set 
 right by an application to the court in banco, on the ground 
 that the verdict w^as against evidence ; but it is to be 
 observed that such an application, even if successful, would 
 only result in a new trial. And on a second trial, and even 
 on subsequent trials, the same thing might happen again." 
 
 (.y) 3 App. Cas. 193, 197.
 
 192 
 Art. 76. 
 
 Of IsectLigexce. 
 
 Aet. 76. — Limitation. 
 
 An action for damage incurred by another's 
 negligence must be commenced within six years. 
 
 Lord 
 Ac!r 
 
 i 
 
 I 
 
 Aet. 77. — Actions hjj Personal Hepr ese nfatives 
 of Persons liilled bji Torts {z). 
 
 (1) Whenever the death of a person is caused 
 by a ^YrongfuI act, neglect or default of another 
 which would (if death had not ensued) have 
 entitled the party injured to maintain an action 
 in respect thereof, then the wrongdoer is liable 
 to an action, even although the circumstances 
 amount in law to a felony {a) . 
 
 (2) Every such action must be for the beneht 
 of the wile, husband, parent and child of the de- 
 ceased, and must be brought by and in the name 
 of the executor or administrator of the deceased 
 person ; and ni every such action the jury may 
 give such damages as they may think propor- 
 tioned to the injury resulting from such death, to 
 the parties respectively for whom and for whose 
 benelit such action is brought. The amount so 
 
 i recovered, after deducting the costs not recovered 
 
 I from the defendant, is divided amongst th-e 
 
 before-mentioned parties (or such of them as 
 
 may be in existence) in such shares as the jury 
 
 by their verdict may direct {h). 
 
 (3) Not more than one action lies for the same 
 cause of complaint, and every such action must 
 
 I (z) It will be oliserveil that the Act applies not onlj' to deaths 
 Icaiised hy iKij/iijcuce, but to deaths however tortiously caused. As, 
 ftiowever, cases under the Act usually arise out of negligence, it has 
 /been thought most convenient to treat of the Act under the present 
 section. 
 
 (a) 9 & 10 Vict. c. 93, s. 1. {'>) Id., s. 2. 
 
 c-V 
 
 ^"t lunu
 
 Actions of Persons Killed by Torts. 193 
 
 be coniniencecl within one year after the death of Art. 77. 
 the deceased (c). 
 
 (4) Where there is no personal representative, 
 or no action is brought by him within six 
 months, the action may be brought in the name 
 or names of all or any of the persons for whose 
 benefit the personal representative could have 
 sued (d). 
 
 In respect to actions brought under the provisions of this Points to be 1 
 statute (commonly known as Lord Campbell's Act), which "ott-f^- 
 establishes a statutory exception to the common la w maxim 
 "actio^jjersonalis moritur cum persona," the following 
 points must be remembered — 
 
 (1) The personal representatives (or should they not sue, 
 the parties mentioned in the last clause of the rule) can 
 only maintain the action in those cases in which, had the 
 deceased lived, he himself could have done. So that, if 
 the deceased were guilty of such contributojy negligence as 
 would have barred him from succeeding, those claiming 
 as his representatives can stand in no better position (e). 
 
 (2) Every such action must be brought for the benefit of 
 the wife, husband, parent and child of the deceased. Parent 
 includes a grand-parent and a step-parent. The word child, 
 a grand-child and a step-child, and a child en ventre sa 
 merc{f), but not a bastard (f/j. The jury apportion the 
 damages amongst these persons in such shares as they may 
 think proper. 
 
 (3) The persons for whose benefit the action is brought 
 must have suffered some pecuniary loss by the death of the 
 deceased (/i). " Pecuniary loss " means " some substantial 
 
 {(■) 9& ](» Vict. c. 93, s. 4. 
 
 ((/) 27 & 28 Vict. c. 95, s. 1 ; and see Hollcruii v. BcKpiell, 4 L. R. 
 Ir. 740. 
 
 (e) Pym v. Great Xortlun-n Rail. Co., 4 1>. & S. o9G. 
 
 (/) The George and Richard, L. R. 3 Adin. \m ; 24 L. T. 717. 'I'he 
 reader must not be misled by tliis case into concluding that an action 
 in rem against a ship may be maintained under the Act. See Seward v. 
 The Vera Cruz, 10 App. Cas. m. 
 
 (g) Dickinson, v. Xorfh Eastern Rail. Co., 2 H. tV. C. 735. 
 
 [h) Franklin v. South Eastern Rail. Co., 3 H. & N. 21L
 
 194 Of Negligence. 
 
 Art. 77. detriment in a worldly point of view." Thus, loss of 
 reasonably anticipated pecuniary benefits, loss of education 
 or support is sufficient (i) : as where the plaintiff was old 
 and infirm and had been partly supported by his son, the 
 deceased (j). Even loss of mere gratuitous liberality (k), 
 or loss to the personal property of the deceased by medical 
 expenses is sufficient (Z). Grief, mourning, and funeral 
 expenses, however, cannot be taken into account {m) ; nor 
 can a person recover compensation where the pecuniary 
 advantage he has lost arose from a contract between him- 
 self and the deceased, and not from his relationship to 
 him [n) . 
 
 (4) If the deceased obtained compensation during his 
 lifetime, no further right of action accrues to his representa- 
 tives on his decease (o). 
 
 (5) The death must be actually caused by the wrongful 
 act for which compensation is sought. 
 
 (6) The action must be brought within twelve calendar 
 months after the death of the deceased. 
 
 (7) Where a deceased has made provision for his wife, by 
 insuring his life in her favour, then, inasmuch as she is 
 benefited by the accelerated receipt of the amount of the 
 pohcy, the jury ought, in estimating the widow's loss, to 
 deduct from the future earnings of the deceased n'ot the 
 amount of the jDolicy moneys, but the premiums which, if 
 he had lived, he would have had to pay out of his earnings 
 for the maintenance of the policy {p). 
 
 (i) Pym V. Great Northern Bail. Co., siqjra ; Fraukliii v. South 
 Ea-iterii Bail. Co. , supra. 
 
 { j) Ifcthtriiujton v. North Eastern. Bail. Co., 9 Q. B. T>. 160. 
 
 ('/.) Ihdton V. South Eastern Bail. Co., '21 L. .J. C. P. 227. 
 
 (/) Bradshaw v. Lancashire and Yorkshire Bail. Co., L. R. 10 C. P. 
 189; but see Lefjfjott v. Great Northern Bail. Co., 1 Q. B. D. 599. 
 
 (711) r<r Bramwei.1,, Oshorn v. Gillttt, L. R. 8 Ex. 88. 
 
 (/() ,s'y/.Y,s V. North Eastern Bail. Co., 44 L. J. C. P. 191. 
 
 (0) litad V. Great Eastern Bail. Co.. L. R. 3 Q. B. 555. But see 
 Daly V. Dublin, etc Bail. Co., 30 L. R. Ir. 514, wlicre tlic Iiisli courts 
 decided contra. 
 
 (//) Grand Trtiiik Bail. Co. v. .Jcnniuns, 13 App. Cas. SOU.
 
 C 105 ) 
 
 CHAPTEE YIII. 
 
 NUISANCE. 
 
 Art. 78. — Descrlptiuii of Nuisances. 
 
 |: (1) Nuisances are either public or private. 
 
 (2) A public nuisance is some act which tends 
 to the annoyance of the King's subjects, or an 
 omission to do some thing which the common 
 good requires (a). 
 
 I (3) An action may be brought in respect of a 
 
 1 pubhc nuisance by a private person who has 
 
 suffered tlierefrom some pecuhar and substantial 
 
 damage beyond that suffered by tlie pubhc 
 
 generally. 
 
 (4) A private nuisance is some unauthorised 
 user of a man's own property causing damage 
 fo the property of another, or some unauthorised 
 interference with the property or proprietary 
 rights of another, causing damage, but not 
 amounting to trespass. 
 
 1 (5) A person suffering damage from a private 
 ■' nuisance has a remedy by action for damages or 
 injunction, or both. 
 
 (G) Liabihty for nuisance is independent of 
 I neghgence. 
 
 (a) Soc />«;/• LiNDLEV, L.J., in ^4/^-6'e«. v. Tod Heathy, [1897] I Cli- 
 5()U, at p. 5(J6. 
 
 ^ 
 
 ?
 
 196 
 
 Nuisance. 
 
 Art. 78. (7) Xo use of property which would be legal if 
 due to a proper motive, can be a nuisance merely 
 because it is prompted by a motive which is 
 improper or even malicious (h). 
 
 Illustrations. (1) Thus the staring of water on a man's own land in 
 large quantities, and allowing it, either with or without 
 negligence, to escape on to the land of his neighbour, is a 
 private nuisance. 
 
 (2) So setting up a noisy or a noisome factory in a 
 residential neighbourhood may be a public or private 
 nuisance according to the number of people annoyed. 
 
 (3) Again, to dig a hole in a highway is an unauthorised 
 interference with the public right of using the highway 
 which constitutes a public nuisance ; and so it is to allow 
 rubbish or filth to be deposited on your land so as to be 
 injurious to the inhabitants of the neighbourhood (c). 
 
 V (4) So, also, traders who keep vans in a street for an 
 unreasonable time for the purpose of loading and unloading, 
 cause an unreasonable obstruction which may amount to a 
 public nuisance [d). 
 
 (5) The law with regard to private nuisances mainly 
 depends upon the maxim sicuterc tuo ut alicnum non Icedas. 
 Not that that maxim can receive a literal interpretation, for 
 a man may do many acts which may injure others {ex. gr., 
 build a house which may shut out a fine view theretofore 
 enjoyed by a neighbour) ; but such acts are necessarily 
 incidental to the ownership of property. The acts referred 
 ^ to in the maxim are acts which go beyond the recognised _ 
 
 legal rights of a proprietor — acts, so to speak, ultra vires, 
 which are an abuse of those leRal rights. 
 
 Lawful act 
 done with 
 malicious 
 motive. 
 
 (6) The owner of land containing underground water 
 which percolates by undefined channels, and flows to the 
 land of a neighbour, has the right to divert or appropriate the 
 percolating water within his own land, so as to deprive his 
 
 {h) Bradford Corporation v. Pickles, [1895] A. C. 587. 
 
 (c) Alt. -Gen. v. Heathy, [1897] 1 Ch. 560. 
 
 (d) Att.-Gtn. V. Briijhton Sitpp/i/ Association, [1900] 1 CI). 27C.
 
 Description of Nuisances. 197 
 
 neighbour of it (c). An owner diverted underground water Art. 78. 
 
 percolating in undefined channels, not to improve his own 
 
 land, but maliciously in order to injure his neighbours by 
 
 depriving them of then- w^ater supply and to compel them 
 
 to buy him out. This unneighbourly conduct, however, 
 
 was held to be lawful, because it was an act rightful in itself, 
 
 and therefore not wrongful because done maliciously (/). 
 
 SECTION I.— OF PEIVATE DAMAGE FEOM 
 PUBLIC NUISANCE. 
 
 Art. 79. — General Rule. 
 
 No action can be brought for a public nuisance 
 by a private person unless he has suffered some 
 substantial particular damage beyond that 
 suffered by the public generally. 
 
 A public nuisance is a misdemeanor. If anyone could (jeneral 
 . bring an action in respect of a pubhc nuisance without principle. 
 I proof of damage peculiar to himself, the person committing 
 ' the nuisance would be liable to be sued by every member 
 of the public. Hence the proper procedure is by indict- 
 ment or by action brought by the Attqrneyilzeri£ral as 
 representing the public {g). 
 I But a private person who has suffered some particular 
 \\ "damage beyond that suffered by the public generally — some 
 damage different in kind from that suffered by the public 
 generally— can sue for damages in respect thereof. Thus 
 obstructing a highway is a public nuisance. A person 
 who is merely prevented from using the highway suffers 
 only the same damage as any other member of the 
 
 (e) Chasemore v. Richards, 7 H. L. Cas. 349. 
 
 (/) Bradford Corporation v. Pickles, [1895] A. C. 587. 
 
 (j/) See supra, p. 10.
 
 198 
 
 Nuisance. 
 
 Kinds of 
 
 public 
 
 nuisances. 
 
 Art. 79. public (/i). But a person, the access to whose premises to 
 the highway is cut off(/), or a person who in using the 
 highway suffers personal injuries by reason of the obstruc- 
 tion, suffers damage peculiar to himself, and in respect 
 thereof he has a right of action (A;). 
 
 Public nuisances consist not only of those which interfere 
 with definite public rights, such as the right of the public 
 to use a highway, but also of nuisances which endanger 
 the health, safety, or comfort of the public generally, such 
 as noise or the escape of dangerous gases and fumes which 
 make a neighbourhood unhealthy. Thus it has been said 
 that the ringing of bells, if it is so loud as to affect a 
 very large number of persons, may amount to a public 
 nuisance. 
 
 So, too, where a sanitary authority so manage their 
 sewers as to affect the health or comfort of the public or the 
 inhabitants of a large district, they commit a public nuisance 
 in respect of which the Attorney-General is the proper party 
 to take proceedings (/). 
 
 Nuisances to highways consist in • any obstruction of 
 the highway or anything which renders the use of the 
 highway unsafe or incommodious for the public, as by 
 physically stopping it up, or making excavations on or 
 immediately adjoining it, or by maintaining ruinous fences 
 or buildings immediately adjoining it. 
 
 Examples. (1) Thus, where a man makes an excavation adjoining 
 
 Excavations, a highway, and keeps it unfenced, he commits a public 
 
 nuisance and is liable for any injury occasioned to a person 
 
 falling into it {in). 
 
 Nuisances 
 to highways. 
 
 (h) Wintcrhottom v. Lord Derby, L. R. 2 Ex. 316. 
 
 (i) See Metropolitan Board of Work^ v. McCarthy, L. R. 7 H. L., 
 at p. 263 ; Fritz v. Hob.-<on, 14 Cli. D. 542. 
 
 (k) Benjamin v. Storr, L. R. 9 C. P. 400 ; Barne., v. Ward, 9 C. B. 
 392. 
 
 (/) See Att.-den. v. Luton Local Board, 5 Jur. (.v.s.) 180; Att.- 
 Gen. V. Binninyham Town Council, 6 W. R. 811 ; Alt. -Gen. v. Tod 
 Heatley, [1897] 1 Ch. 560. 
 
 (m) Barnt; v. Ward, 9 C. B. 392.
 
 Private Damage from Public Nuisances. 199 
 
 (2) To permit premises adjoining a highway to fall into Art. 79. 
 
 a ruinous condition is a public nuisance entitling a person . 
 
 '- 1 T J- n Humous 
 
 injured thereby to damages. Thus, where the defendant pi-emises. 
 
 had a heavy lamp projecting over the highway, which by 
 
 reason of want of repair fell on the plaintiff and injured her, 
 
 it was held that the defendant was liable {)i). 
 
 (3) So, also, a person who maintained a low spiked wall Dangerous 
 immediately adjoining a highway was held liable for injuries 
 caused to a little girl who stumbled against the spikes 
 
 whilst using the highway (o). And, similarly, where a boy 
 attempted wrongfully to climb a rotten fence adjoining a 
 highway, and the fence fell upon and injured him, he was 
 held to be entitled to recover, because the fence was a 
 nuisance, and he only did what might have been expected 
 of a boy ( p). It is probable that in the last two cases the 
 plaintiffs would not have succeeded if they had not been 
 children. In the last case, at any rate, the boy was a 
 trespasser. He had no right to climb the fence, and the 
 fence was not like an excavation immediately adjoining a 
 highway, which anyone lawfully using the highway might 
 by accident fall into. 
 
 (4) An excavation on land not immediately adjoining a Excavations 
 
 highway is not a nuisance, and a trespasser has no right of P°^ atja^^'ent 
 r< J ' r o to roafls. 
 
 action if he falls into it, unless it amount to a trap (q). 
 
 (5) A highway authority is not liable for damage caused Liability 
 to an individual by mere non-feasance. The only remedy i|J^ 3^^ 
 is by indictment for non-repair. But for particular damage 
 
 caused to an individual by a public nuisance due to mis- 
 feasance, a highway authority is liable like any other person 
 committing a nuisance (r). Thus, a highway authority is 
 liable for damage to an individual caused by his falling over 
 a heap of stones left in a street unlighted, for that is 
 
 (/() Tfirn/ V. A.shfoH, 1 Q. B. I). .SI 4. 
 
 (o) Fenna v. Clara, [1895] 1 Q. B. 199. 
 
 (p) Harrold v. Watney, [1898] 2 Q. B. 320. 
 
 (7) See HounstU v. Smythe, nnpra, p. 188. 
 
 (/•) See i?«.>i.se// V. il/e7t o/Z)eTO/(, 2T. R. ()()7 ; 'J'hom/tsoii v. Brl</hfoii 
 Corporation, [1894] 1 Q. B. 8.32 ; Coir/,-!/ v. .V* irmdrhl Local Board, 
 [1892] A. C. 345.
 
 200 Nuisance. 
 
 Art. 79. misfeasance (s), but not to a person who is injured by 
 reason of the highway being allowed to fall into disrepair, 
 for that is mere non-feasance {t). 
 
 SECTION II.— OF PEIYATE NUISANCES TO 
 CORPOEEAL HEREDITAMENTS. 
 
 Illustration^. 
 Fumes. 
 
 Noisy and 
 
 noisome 
 
 trades. 
 
 Inconveni- 
 ence must b(' 
 substantial. 
 
 Aet. 80. — General Liahiliff/. 
 
 Any private nuisance wliereby sensible injury 
 is caused to the property of another, or, wliereby 
 the ordinary physical comfort of huinaif existence 
 in such property is materiaUy interfered with, is 
 actionable. 
 
 (1) Thus, in the case of Tipping v. St. Helens Sniclting 
 Co. (u), the fact that the fumes from the company's works 
 killed the plaintiff's shrubs, w^as held suliicient to support 
 the action ; for the killing of the shrubs was an injury to 
 the property. 
 
 (2) So, too, it was said, in Cruvip v. Lavibert (r), that smoke 
 unaccompanied with noise, m: with noxious vapour, noise 
 alone, and offensive vapours alone, although not injurious 
 to health, may severally constitute a nuisance ; and that 
 the material question in all such cases is, whether the 
 annoyance produced is such as mate^-ially to interfere with 
 the ordinary comfort of human existence in the plaintiff's 
 property. 
 
 (3) But the damage must be substantial. In Walter v. 
 Sclfe {.»■), Knight Beuce, V.-C, said: "Both on principle 
 and authority, the important point next for decision may 
 properly, I conceive, be put thus : Ought this inconvenience 
 
 (.y) Forbmun v. Mayor of Cant i rim ry, L. R. (i Q. V>. 214. 
 {t) Rus'itU V. Men of Dtroii, uhi .*i(pra : Tliompson v. Br'ttjhton 
 Corporatiov, tihi -^upra. 
 (;0 L. R. 1 CI). 66. 
 {?•) L. R. 8 Eq. 409. [x] 4 De G. & Wni. 322.
 
 :fi* 
 
 Private Nuisances to Corporeal Hereditaments. 201 
 
 to be considered in fact as more than fanciful, more than Art. 80. 
 
 one of mere dehcacy or fastidiousness,^ as an inconvenience 
 
 materially interfering with the ordinary comfort physically 
 of human existence, not merely according to elegant or 
 dainty modes and habits of hving, but according to plain 
 and sober and simple notions among English people ? " 
 
 (4) The collection of a crowd of noisy and disorderly Noisy enter- 
 people outside grounds in which entertainments with music tainments. 
 
 T,, and fireworks are being given for profit, is a nuisance, even 
 though the entertainer has excluded all improper characters, 
 and the amusements have been conducted in an orderly 
 way {i/}. 
 
 (5) A proprietary club was established for pugilistic 
 encounters, which caused the collection of large and noisy 
 crowds outside the club. The club was kept open until 
 three o'clock a.m., and, as the members left, great noise 
 was caused by cabs being whistled for, and by such cabs 
 driving up to and away from the club. In an action against 
 the club proprietor for an injunction, brought by the owners, 
 lessees, and occupiers of an adjoining house •.—Held, that 
 the nuisance thus caused, was the reasonable and probable 
 consequence of the defendant's acts, and that the injunction 
 must be granted (^). 
 
 (6) So, too, the turning of the ground floor of a London 
 house into a stable, so that the neighbours are disturbed 
 all night by the noises of the horses, may constitute a 
 nuisance (a). 
 
 (7) On the otlier hand, an occupier of a house is not 
 liable to an action for carrying on a trade in a reasonable 
 way even though it causes some noise and discomfort to 
 his neighbours. Thus, the giving of numerous music 
 lessons by the defendant in a house separated from the 
 plaintiff's house by a thin party wall, varied by practising 
 and singing, and evening musical entertainments, was held 
 
 pSe/nfern ";('-■ ^^^^. J;.^"'^- l-'«- '^"^l ««« also Barker v. 
 i^eniey, Llh9.^] 2 Ch. 44/, and Je.ikim v. Jackson, 40 Ch D 71 
 
 (a) Ball V. Ray, L. R. 8 Ch. 467.
 
 02 Nuisance. 
 
 Art. 80 not to be a uiiisance for which an injunction would be 
 granted ; and moreover, the court restrained the plaintiff 
 from making noises by way of reprisal (b). 
 
 (8) It seems that a mere temporary annoyance, such as 
 the noise and dust caused by pulling down or building 
 upon adjoining premises, does not constitute an actionable 
 nuisance, unless the temporary operations are such as to 
 permanently depreciate the value of the plaintiff's property 
 by shaking it or otherwise (c). 
 
 (9) If a person allows substances which he has brought 
 on his land to escape into his neighbour's, an action lies 
 without, proof of, negligence. Thus, as we have seen (c?), 
 one who brings or collects water upon his land, does so at 
 his peril ; and if it escape and injure his neighbour, he is 
 liable, however careful he may have been (e), unless the 
 escape was caused by something quite beyond the possibility 
 of his control, as the act of God, or of a third party whose 
 acts he could not foresee or control (/). And the same 
 principle has recently been held to apply to the storing of 
 large quantities of electricity, the escape of which may do 
 injury to life, limb, arid property (g). But where water 
 is naturally upon the land, the owner is only liable for 
 negligence in keeping it. Nor is a mine owner liable 
 because, by reason of his operations, water naturally 
 percolates into the mines of his neighbours (/(). On the 
 same ground, a landowner is not liable because the seed 
 of thistles, permitted to grow on his land, is blown by the 
 
 (h) Christie v. Davey, [1893] 1 Ch. 316. Note that, as to the last 
 point, the judge was largely influenced b3-the fact that the defendant's 
 motive was bad. But see the later case of Bradford Coi^joration v. 
 Pickh-'i, [1895] A. C. 587. 
 
 ((•) Harrimn v. Southward Wafer Co., [1891] 2 Ch. 409 ; Cohrell v. 
 JSt. Pancras Borough Council, [1904] 1 Ch. 707. 
 
 (d) Supra, pp. 17 — 20. 
 
 (e) Rylands v. Fletcher, L. R. 3 H. L. 3.30 ; Fletcher v. Smith, 
 2 App. Cas. 781 ; Buckley v. B., [1S9S] 2 Q. B. 6(18. 
 
 (/) Xichols V. Maraland, 2 Ex. Div. 1 ; Box v. J2ihh, 4 Ex. Uiv. 
 77. 
 
 ((j) Eastern, etc. Telegraph Co. v. Capetown Tramwayn Co., [1902] 
 A. "C. 381. 
 
 (h\ Wilion V. U'addell, 2 App. Cas. 95.
 
 Private Nuisances to Corporeal Hereditaments. 208 
 
 wind on to the land of his neighbour (/). And so, also, Art. 80. 
 
 where water is brought upon land, or into a house, by the 
 
 defendant, but for the joint use of himself and the plaintiff, 
 the latter cannot complain of any damage (not attributable 
 to the defendant's negligence) which its escape may cause 
 to him (k). 
 
 (10) It has been held in a recent case (/) that even if Shifting 
 
 a person has not brought the dangerous substance on to S °to ^'°"^ 
 
 his land, he is liable if he takes active means to shift neighbour. 
 
 the danger from himself to his neighbour. In that case, 
 
 by reason of an unprecedented rainfall, a quantity of water 
 
 accumulated against one of the sides of the defendants' 
 
 embankment so as to endanger its stability. To prevent 
 
 this the defendants cut trenches in the embankment, and 
 
 so let the water flow on to the plaintiff's land, and injured 
 
 it. It was held that although the defendants had not 
 
 brought the water on to their land, they had no right to 
 
 protect their property by transferring the mischief from 
 
 their own land to that of the plaintiff. They would have 
 
 been entitled, no doubt, to prevent the water getting against 
 
 their embankment, but they had no right, when once it was 
 
 there, to transfer it to their neighbour, any more than the 
 
 owner of a natural lake could drain it on to his neighbour's 
 
 lands. 
 
 (11) Other examples of nuisance to corporeal heredita- Other 
 ments, are, permitting buildings to become ruinous so as examples, 
 to fall on one's neighbour's land(7;i), overhanging eaves 
 
 from which the water flows on to another's property {n) ; 
 or overhanging trees (o) ; or pigstys creating a stench, 
 erected near to another's house. And it would seem that 
 noisy dogs, preventing the plaintiff's family from sleeping, 
 are nuisances, if the jury find that serious discomfort is 
 
 (i) (lilts V. Walbr, 24 Q. B. D. 656. 
 
 (k) Anderson v. Opptnheimtr, 5 Q. B. D. 602. 
 
 (/) Whalley v. Lancashire and Yorkshire Kail. Co., 13 Q. B. 1). LSI. 
 
 (m) Todd V. Flight, 9 C. B. (n.s.) 377. 
 
 [n) Bathinhill v. Beed, 25 L. J. C. P. 290. 
 
 {0) Le?nmon v. Wehh, [1895] A. C. 1; Smith v. Giddy, [1904] 
 2 K.. B. 448.
 
 204 Nuisance. 
 
 Art. 80. caused ; although, where the jury find that no serious dis- 
 ' comfort has arisen, the court will not interfere (jj). So, 
 
 also a small-pox hospital, so conducted as to spread 
 infection to adjoining lands, is a nuisance ((/). 
 
 Aet. 81. — Reasonableness of Place. 
 
 Where an act is proved to interfere with the 
 enjoyment of property, so as to be prima facie a 
 nuisance, it cannot be justified by the fact that 
 it was done in a proper and convenient spot and 
 was a reasonable use of the defendant's land(r). 
 ' But acts which would be a nuisance in one locality 
 may not be so in another (.§). 
 
 Illustrations. (1) The spot selected may be very convenient for the 
 defendant, or for the public at large, but very inconvenient 
 to a particular individual who chances to occupy the adjoin- 
 ing land ; and proof of the benefit to the public, from the 
 exercise of a particular trade in a particular locality, can be 
 no ground for depriving an individual of his right to com- 
 pensation in respect of the particular injury he has 
 j sustained from it. Thus, where the defendant used his 
 ; land for burning bricks and so caused substantial annoyance 
 to his neighbour, it was held that it was no defence that it 
 was done in a proper and convenient spot, and was a 
 reasonable use of the land (^). At the same time a person 
 is entitled to use his land or house in the ordinary way in 
 which property of the like character is used, and an adjacent 
 owner must put up with such noises and inconveniences as 
 may reasonably be expected from his neighbours, such as 
 the noise of a pianoforte, or the noise of children in their 
 
 {p) Street v. G'tn/well, Selwyn's N. P., l.Stli vd. l()!t(l. 
 
 (q) Hilt V. Metrojjolifan A'<ylnms Hoard, (> Ajjp. Cas. 193. 
 
 (/•) Bamford v. Turnhy, 31 L. J. Q. 15. 286. 
 
 (tf) St fleleihs Smelting Co. v. Tlppiinj, 11 H. L. Cas. Gr)(i. 
 
 (t) Bamford v. Turnley, iibi unprci.
 
 Private Nuisances to Corporeal Hereditaments. 205 
 
 nursery, which are noises we must reasonably expect, and Art. 81. 
 must, to a hxrge extent, put up with (h). 
 
 (2) In St. Helens Smelting Co. v. Tipping, supra. Lord 
 Westbury said : " In matters of this description, it appears 
 to me that it is a very desirable thing to mark the 
 difference between an action brought for a nuisance upon 
 the ground that the alleged nuisance produces material 
 injury to the property, and an action brought for a nuisance 
 on the ground that the thing alleged to be a nuisance is 
 productive of sensible personal discomfort. With regard to 
 the latter — namely, the personal inconvenience and inter- 
 ference with one's enjoyment, one's quiet, one's personal 
 freedom, anything that discomposes or injuriously affects 
 the senses or the nerves — whether that may or may not be 
 denominated a nuisance, must undoubtedly depend greatly 
 on the circumstances of the place where the thing com- 
 plained of actually occurs. If a man lives in a town, it is 
 necessary that he should subject himself to the consequences 
 of those operations of trade which may be carried on in the 
 immediate locality, which are actually necessary for trade 
 and commerce, and also for the enjoyment of property, and 
 for the benefit of the inhabitants of the town, and the 
 public at large. If a man lives in a street where there are 
 numerous shops, and a shop is opened next door to him 
 which is carried on in a fair and reasonable way, he has no 
 ground of complaint because, to himself individually, there 
 may arise much discomfort from the trade carried on in 
 that shop. But when an occupation is carried on by one 
 person in the neighbourhood of another, and the result of 
 that trade or occupation or business is a material injury to 
 property, then unquestionably arises a very diffei'ent con- 
 sideration. I think that in a case of that description, the 
 submission which is required from persons living in society 
 to that amount of discomfort which may be necessary for 
 the legitimate and free exercise of the trade of their 
 neighbours, would not apply to circumstances the immediate 
 
 ill) See Bull v. Ray, L. R. S Ch. 471 ; Ait-Gni. v. Cole, [1901] 1 Ch. 
 20.") ; h'ciiihnrdf v. McntaMi, 42 Ch. D. (iSr> ; and Christie, v. Darey, 
 [1898] 1 Ch. 31«.
 
 206 
 
 Nuisance. 
 
 Art. 81. result of which is sensible injury to the value of the 
 property." And Lord Crakwokth said (referring to a case 
 which he had tried when a Baron of the ^Exchequer) : " It 
 was proved incontestably that smoke did come, and in some 
 degree interfere with a certain person ; but I said, ' You 
 must look at it, not with a view to the question whether 
 abstractedly that quantity of smoke was a nuisance, hut 
 ivhetlicr it teas a nuisance to a ijerson living in the toivn of 
 Shields.' " 
 
 SECTION III.— EULES APPLICABLE TO PUBLIC 
 AND PEIVATE NUISANCES. 
 
 Aet. 82. — Flairttiff coming to the Nuisa nce. 
 
 It is no answer to an action for nuisance, that 
 the plaintiff knew that there was a nuisance, and 
 yet went and Hved near it (ij) . 
 
 Or in the words of Byles, J., in Hole v. Barloic {z) : " It 
 used to be thought that if a man knew that there was a 
 nuisance and went and lived near it, he could not recover, 
 because it was said it is he that goes to the nuisance, and 
 not the nuisance to him. That, however, is not law now." 
 The justice of this is obvious from the consideration, that 
 if it were otherwise, a man might be wholly prevented from 
 building upon his land if a nuisance was set up in its 
 locality, because the nuisance might be harmless to a mere 
 field, and therefore not actionable, and yet unendurable to 
 the inhabitants of a dwelling-house. 
 
 "O-)^^ 
 
 Aet. 83. — Hotv far Bight to commit a Nuisaiice_ 
 caHr^Be^acquired . 
 
 The ri^ht to commit a private nuisance may 
 be gained by statute, custom^ grant, or pre- 
 
 (y) Bliss V. Hall, 4 Bing. N. C. 183 ; *S7»r,7r-. 
 11 Ch. D. 8.-V2. 
 (-.) 27 L. ,J. C. P. 208. 
 
 Bvidijmuu,
 
 AcguisiTiux OF KioHT TO Commit Nuisances. 
 
 207 
 
 scription (a). The right to coniniit a pulilic Art. 83. 
 nuisance can only be ac(|uired by clear statutory 
 authority (/>). 
 
 (] ) Thus, a railway company were by their Act authorised, Illustrations, 
 among other things, to carry cattle, and also to purchase ^^-^/Xr"' 
 by agreement any lands not exceeding in the whole fifty Bail. Co. v. 
 acres, in such iMces as should be deemed ehgible, for 
 the purpose of providing additional stations, yards, and 
 other conveniences, for receiving, loading, or keeping any 
 cattle, goods, or things, conveyed, or intended to be con- 
 veyed, by the railway. Under this power, the railway 
 company bought laud adjoining one of their stations, and 
 used it as a yard for their cattle traffic. The noise of the I 
 
 cattle and drovers was a nuisance to the owners of houses 
 near to the station, which, but for the Act, would clearly , 
 
 have entitled them to maintain an action. It was, how- 
 ever, held, that the purpose for which the land was 
 acquired, being expressly authorised by the Act, and being 
 incidental and necessary to the authorised use of the railway 
 for the cattle traflic, the company w^ere entitled to do what 
 they did, and were not bound to choose a site more con- 
 venient to other persons. In giving judgment. Lord 
 Halsbury said : " It cannot now be doubted, that a rail- 
 way company constituted for the purpose of carrying 
 passengers, or goods, or cattle, are protected in the use of 
 the functions with which Parliament has entrusted them, 
 if the use they make of those functions necessarily involves 
 the creation of what would otherwise be a nuisance at 
 common law." His lordship, on the construction of the 
 particular Act, came to the conclusion that the powers of the 
 Act did necessarily involve the creation of a nuisance by the 
 company somewhere along their line, and gave to the com- 
 pany the absolute discretion as to the locality, and 
 accordingly held that the parties injured had no remedy (c). 
 The same principle has been appUed in the case of an 
 
 (a) As to prescription, see post, Arts. 86 and 87. 
 
 (b) See WrUjht v. WUiiaim, 1 M. & W. 77, and Croashy v. Liuhtoiiier, 
 L. R. -2 Ch. 478. 
 
 (f) London and Briyhtoii U<iil. Co. v. Tnnnnii, 11 App. Cas. 4r>.
 
 '208 Nuisance. 
 
 Art. 83. Electric Tramway Co. whose electricity caused disturbance 
 in adjacent telephone wires (d). 
 
 Mttropolitau (2) The last-mentioned cases must, however, be carefully 
 trut ^Board\ distinguished from that of Metropolitan Asylum District 
 Hill. Board v. Hill (e). There it appeared, that by their Act the 
 
 Metropolitan Asylum District Board were authorised to 
 purchase lands and erect buildings, to be used as hospitals. 
 But it did not by direct or imperative provision order these 
 things to be done. The Board erected a small-pox hospital, 
 which was, in point of fact, a nuisance to owners of 
 neighbouring lands. On these facts it was held, that the 
 Board could not set up the statute as a defence. Lord 
 Blackbubn, in the course of his judgment, laid it down, 
 / that on those who seek to establish that the legislature 
 
 I intended to take away the private rights of individuals lies 
 
 / the burden of showing that such an intention appears by 
 
 express words or necessary implication. And Lord Watson 
 atiirmed that where the terms of a statute are not imperative 
 but pcrmissice, the fair inference is that the legislature 
 intended that the general powers thereby conferred, should 
 be exercised in strict conformity with private rights ; 
 but that where they are imperative, the legislature intends 
 that the powers should be exercised with impunity although, 
 8M»d apart from the statutory authority, their exercise would 
 be wrongful. This distinction was affirmed and acted upon 
 by the Judicial Committee of the Privy Council in Canadian 
 Pacific Bail. Co. v. Parke (/). The distinction between 
 the tivo cases was pointed out by Lord Selboexe {(j) as 
 follows: "In that case {h), the establishment of a small- 
 pox hospital within certain local limits was not specially 
 authorised, as the construction of the London and Brighton 
 
 ((/) Xadoual Tdcphont Co. v. B((hr, [ISH.SJ 1 C'li. ISO. 
 
 (e) 6 App. Cas. 198. As to the evidence necessary to sustain a (jula 
 tunet action for an injunction toprohiliit a proposed small-po.x hospital, 
 see Aft.-(,'r,i. V. Mni/or of Manrh'Mcr, [lS9;-{] 2 Cli. NT. 
 
 (/) [180!)] A. C. .")3o, 545. 
 
 (y) 1 1 App. Cas. 57. 
 
 (A) Mifropo/i/aii Asylum JJintricI Hoard v. /////, (i App. Cas. 103.
 
 Acquisition of Right to Commit Nuisances. 209 
 
 Eailway for the purpose (among other things) of the load- Art. 83. 
 ing, carriage, and unloading of cattle, and other animals 
 was here. If it had been, I do not think that this House 
 would have considered the case of any adjacent laud in 
 a situation not defined, which the Board might have been 
 authorised to purchase by agreement for the enlargement, 
 as they might think desirable, of the hospital premises, 
 different from that of the hospital itself. In that case, no 
 use of any land which must necessarili/ be a nuisance at 
 common law was authorised ; it was not shown to be 
 impossible that lands might be acquired in such a situation, 
 and of such extent, as to enable a small-pox hospital to be 
 erected upon them without being a nuisance to adjoining 
 land. Here there can be no question that the legislature 
 has authorised acts to be done for the necessary and 
 ordinary purposes of the railway traffic {e.g., those com- 
 plained of in Bex V. Pease (i) ) which would be nuisances at 
 common law, but which being so authorised are not 
 actionable." His lordship then came to the conclusion, 
 that the powers for making cattle yards were ejusdem 
 generis with the other ordinary powers of the company, and 
 that as the exercise of the ordinary powers necessarily 
 created nuisances {e.g., smoke, noise, and so on) which were 
 not actionable, so the exercise of the power in question 
 necessarily created nuisances which were therefore not 
 actionable. 
 
 (3) It has since been laid down broadly, that the liability Broad rule, 
 of a corporation created by statute is governed by the 
 statute. Its powers, if exercised at all, must be exercised 
 with care. In the absence of contrary intention, its duties 
 and liabilities are the same as those imposed upon a private 
 person doing the same thing {j). 
 
 (i) 4 B. & Ad. 30. 
 
 (J) Sanitary Conwii-ssioner-s of (rihralfar y. Orjila, l.! App. Cas. 400.
 
 210 Nuisance. 
 
 Art. 84. 
 
 Art. 84. — Liahilifij for Nuisances created hij 
 
 7/ Ruinous Premises. 
 
 (1) As regards liability to persons injured by 
 *^^ reason of ruinous premises adjoining a highway, 
 
 or by ruinous premises being a nuisance to 
 adjoining owners, the person in occupation is 
 jwivid facie liable (A'). But if the premises are 
 let to a tenant by a landlord who covenants with 
 the tenant to do repairs, the landlord alone is 
 responsible (/). And if the landlord has caused 
 or authorised the continuance of the nuisance as 
 by letting premises in a ruinous condition, with- 
 out an}^ covenant to repair, it seems that both 
 the landlord and the tenant are responsible {ni). 
 
 (2) When premises are let on a weekly tenancy 
 there is not a re-letting at the end of such week 
 so as to make the landlord liable for nuisances 
 arising since the original letting. In such a case 
 the tenant and not the landlord is liable {n). 
 
 Illustrations. (1) The defendant let premises to a tenant who covenanted 
 to keep them in repair. Attached to the house was a coal- 
 cellar under the footway, with an aperture covered by an 
 iron plate, which was, at the time of the demise, out of 
 repair and dangerous. A passer-by, in consequence, fell 
 into the aperture, and w^as injured : — Held, that the obliga- 
 tion to repair being, by the lease, cast upon the tenant, the 
 landlord was not liable for this accident. And Keating, J., 
 said, " In order to render the landlord liable in a case of 
 this sort, there must be some evidence that he authorised 
 the continuance of this coal shoot in an insecure state ; 
 
 (k) Rug.-'dl V. Shenfon, 3 Q. B. -liQ ; per Lopes, J., in Xelson v. 
 Liverpool Brtwty-y Co., 2 C. P. D. 313. 
 
 (/) Paynt v. AV/er.s-, 2 H. Bl. 350 ; Rich v. Bcuttr field, 4 C. B. 783. 
 
 (m) Toddy. Fliyhf, 9 C. B. (n.s.) 377; Pretfi/ v. Bichnore, L. R. 
 8 C. P. 401 ; Gwinnell v. Earner, L. R. 10 C. P. 658. 
 
 (n) Bowen v. Anderson, [1894] 1 Q. B. 164.
 
 Nuisances from Euinous Premises. 211 
 
 for instance, that he retained the obhgation to repair the Art. 84. 
 premises : that might be a circumstance to show that he 
 authorised the continuance of the nuisance. There was no 
 such obhgation here. The landlord had parted with the 
 possession of the premises to a tenant, wlio had entered 
 into a covenant to repair." 
 
 (2) And in Todd v. Flight {o), where the declaration 
 contained an allegation that the defendant let the houses 
 when the chimneys were known by him to be ruinous and 
 in danger of falling, that he kept and maintained them in 
 that state, and that the tenant was under no obligation to 
 repair, and the case was tried on demurrer, and the allega- 
 tion was therefore assumed to be true, it was held that the 
 landlord was liable. 
 
 (3) But the above rules only apply to liability for nuisances 
 by the keeping of ruinous premises (a) adjoining a highway, 
 or (b) to the damage of adjoining premises. They have no 
 application as between landlord and tenant, or landlord 
 and the guests of a tenant. Apart from contract, a land- 
 lord is not bound to keep the demised premises in repair as 
 regards either his tenant (p), or the guests of his tenant (g). 
 As regards the duty of a landlord of flats to keep in repair 
 those portions of the buildings which are not let to tenants, 
 see Miller v. Hancock (r) and Hargroves Aronson cC' Co. v. 
 Hartopp{s), supra, p. 182. 
 
 SECTION IV.— NUISANCES TO INCOEPOREAL 
 HEREDITAMENTS. 
 
 A servitude is a duty or service which one piece of land Introductory, 
 is bound to render, either to another piece of land, or to 
 some person other than its owner. Property to which such 
 
 (o) 9C. B. (N.s.)377. 
 
 ( p) Keates v. Cadoyan, 20 L. J. C. P. 76. 
 
 (7) Lane v. Cox, [1897] 1 Q. B. 415. 
 
 (r) [189.3] 2 Q. B. 177. 
 
 (s) [1905] 1 K. B. 472.
 
 212 Nuisance. 
 
 Art. 84. a right is attached is called the dominant tenement, that 
 over ^Yhich the right is exercised being denominated the 
 servient tenement. 
 
 Where the right is annexed to a dominant tenement it is 
 said to be appurtenant if it arises by prescription or grant, 
 and appendant if it arises by manorial custom. Where it 
 is annexed merely to a person it is said to be a right in 
 gross. 
 
 Servitudes are either natural or conventional. Natural 
 servitudes are such as are necessary and natural adjuncts 
 to the properties to which they are attached (such as the 
 right of support to land in its natural state), and they apply 
 universally throughout the kingdom. Conventional servi- 
 tudes, on the other hand, are not universal, but must 
 always arise either by custom, prescription, or express or 
 implied grant. The right to the enjoyment of a conven- 
 tional servitude is called an easement ov a, p-ojlt d j^rendre in 
 alieno solo, according as the right is merely a right of user 
 or a right to enter another's land and take something from ' 
 it, as game, fish, minerals, gravel, turf, or the like. 
 
 The easements known to our law are numerous. Mr. Gale, 
 in his excellent treatise on Easements, gives a list of no 
 less than twenty-five "amongst other" instances. In an 
 elementary work such as this, however, it is only possible 
 to treat of those torts which most often occur in practice, 
 viz. : (1) rights of support for land, (2) rights of support for 
 buildings, (3) rights to the free access of light, and possibly 
 air, (4) rights to the use of water, and (5j rights of way. 
 With regard to profits d prendre, only the following torts 
 will be noticed, viz. : disturbances — (1) of rights of common, 
 and (2) of fisheries. Eeference will also be made to dis- 
 turbance of the peculiar incorporeal right called a ferry. 
 
 Art. 85.- — Disfurhavce of Bight of Siq)2^ort for 
 Land without Buildings. 
 
 (1) Every person commits a tort, who so uses 
 his own land as to deprive his neighbour of the 
 subjacent or adjacent support of mineral matter
 
 Nuisances to Incorporeal Hereditaments. '218 
 
 necessary to retain such neighbour's land in its Art. 85. 
 natural and unencumbered state (t). A man 
 may not pump from under his own land a bed 
 of wet sand so as to deprive his neighbour's land 
 of support (//) ; but (semble) he may pump water 
 from under his own land with impunity, although 
 the result may be to deprive his neighbour's land 
 of support (v). 
 
 {•2) In order to maintain an action for distur- 
 bance of this right, some appreciable subsidence 
 must be shown {w), or, where an injunction is 
 claimed, some irreparable damage must be 
 threatened (.r). 
 
 (3) The right of support may be destroyed by 
 covenant, grant or reservation, but the language 
 of the instrument must be clear and unam- 
 biguous (//). 
 
 (1) In Hiuiiplirics v. Brogdoi (z), Lord Campbell (i)i Illustrations, 
 delivering the judgment of the court) said : " The right to The right 
 lateral smp-port from adjoining soil is not, like the support ^•„;.,,. „a^„,.,r', 
 of one building from another, supposed to be gained by 
 grant, but it is a right of property passing with the soil. 
 If the owner of two adjoining closes conveys away one of 
 them, the alienee, without any grant for that purpose, is 
 entitled to the lateral support of the other close the very 
 instant when the* conveyance is executed, as much as after 
 the expiration of twenty years or any longer period. Pari 
 
 (0 Backhouxe y. Boiiomi, 9 H. L. Cas. 503; Birmiui/hain Corpora- 
 tiou V. Alltn, 6 Ch. D. 284. 
 
 (") Jordeson v. Snffon, etc. Gas Co., [1899] 2 Ch. 217. 
 
 {v) Popplewelf V. Hodkinsoii, L. R. 4 Ex. 248 ; but see per Lixdlky, 
 M.R., in Jordeson v. Sutton, etc. Gas Co., [1899] 2 Ch., cat p. 239. 
 
 (ir) Smith v. Thackerah, L. R. 1 C. P. 564, as explained in Att.- 
 Gen. V. Conduit Colliery Co., [1895] 1 Q. B., at pp. 311, 313. 
 
 (x) Birmingham Corporation v. Allen, supra. 
 
 (y) Roit'hotham v. iVilson, 8 H. L. Cas. 348 ; Aspden v. Seddon, L. R. 
 10 Cli. App. 304, and cases there cited. 
 
 (:) 12 Q. B. 739 ; 20 L. J. Q. B. 10.
 
 214 
 
 Nuisance. 
 
 Art. 85. 
 
 and cannot 
 be extended 
 to remote 
 owners by 
 reason of 
 adjacent 
 owner 
 weakening 
 the support. 
 
 ratione, where there are separate freeholds, from the surface 
 of the land and the mmes belong to different owners, we are 
 of opinion that the owner of the surface, while unencumbered 
 by buildings and in its natural state, is entitled to have it 
 supported by the subjacent mineral strata. Those strata 
 may, of course, be removed by the owner of them, so that 
 a sufficient support is left ; but if the surface subsides and 
 is injured by the removal of these strata, although the 
 operation may not have been conducted negligently nor 
 contrary to the custom of the country, the owner of the 
 surface may maintain an action against the owner of 
 the minerals for the damage sustained by the subsidence. 
 Unless the surface close be entitled to this support from 
 the close underneath, corresponding to the lateral support 
 to which he is entitled from the adjoining surface close, it 
 cannot be securely enjoyed as property, and under certain 
 circumstances (as where the mineral strata approach the 
 surface and are of great thickness) it might be entirely 
 destroyed. We likewise think, that the rule giving the 
 right of support to the surface upon the minerals, in the 
 absence of any express grant, reservation or covenant, must 
 be laid down generally, without reference to the nature of 
 the strata, or the difficulty of propping up the surface, or 
 the comparative value of the surface and the minerals." 
 
 (2) A servitude cannot be created by the act of a third 
 party in cases where, but for that act, no servitude would 
 have existed. Between the land of the plaintiffs and that 
 of the defendants, who were the owners of a colliery, there 
 was an intermediate piece of land, the coal under which had 
 been woi'ked out some years before by a third party. The 
 effect of the cavity was, that when the defendants worked 
 their coal, subsidence was caused in the surface of the 
 plaintiff's land. It was admitted that if the intermediate 
 land had been in its natural state no injury would have 
 been caused to the plaintiffs by the defendants' workings: — 
 Held, that the plaintiffs had no right of action against the 
 defendants. And Sir G. Jessell, M.E., said: " It appears 
 to me that it would be really a most extraordinary result 
 that the man upon whom no responsibility whatever
 
 Nuisances to Incorporeal Hereditaments. 215 
 
 originally rested, who was under no liability whatever to Art. 85. 
 support the plaintiff's land, should have that liability thrown 
 upon him, without any default of his own " (a). 
 
 (3) But although there is no doubt that a man has no right Subterranean 
 to withdraw from his neighbour the support of adjacent soil, 
 
 there would seem to be nothing at common law to prevent 
 him draining that soil, if for any reason it becomes necessary 
 or convenient for him to do so. It has therefore been held 
 that he is not liable if the result of his drainage operations 
 is to cause a subsidence of his neighbour's land (b). But 
 whatever may be true of percolating waters themselves, if a 
 man withdraws, along with that water, quicksand or water- 
 logged soil, and in consequence thereof his neighbour's land 
 settles and cracks, he will be liable. And the same remark 
 applies d fortiori to the withdrawal of pitch or other liquid 
 mineral, and (it is submitted) to mineral oil (c). 
 
 (4) At one time it was thought, on the authority of Pecuniar}^ 
 Smith V. Thackerah (d), that actual loss must have been e°gei^|;°al 
 suffered in order to give rise to an action for withdrawal of 
 support. However, in Attorney -General v. Conduit Colliery 
 
 Co. (e), Collins, J., made the following observations : 
 "I have no doubt whatever that such an action would 
 lie without proof of pecuniary loss. I think the principle 
 at the root of the matter is, that the owner is entitled to 
 have his land ' remain in its natural state unaffected by any 
 act done in the neighbouring land ' (see, j^er Willes, J., 
 delivering the judgment of the Exchequer Chamber in 
 Bonomi v. Backiiouse (/) ), and that as soon as the con- 
 dition of the plaintiff's land has been in fact changed to a 
 substantial extent by the withdrawal of the lateral support, 
 
 (a) Corporation of Birmingham v. Allen, 6 Ch. D. 290. 
 
 (h) PoppleiDell V. Hodgkin-ion, L. R. 4 Ex. 248 ; but see the obser- 
 vations on this case made bv Lixdley, M.R. , and Lindley, L.J., in 
 Jordeson v. Sutton, etc. Gas Co., [1899] 2 Ch., at pp. 239, 243. 
 
 (c) Jordeson v. Sutton, etc. Gas Co., [1899] 2 Ch. 217; Trinidad 
 Asphalt Co. V. Amhard, ih., 260, and [1899] A. C. 594. 
 
 (d) L. R. 1 C. P. 5G4. 
 
 (e\ [1895] 1 Q. B., at p. 311. 
 
 (/) E. B. & E. r)22, at p. 657. »
 
 216 
 
 Nuisance. 
 
 Art. 85. 
 
 Exception. 
 
 the plaintiff has sustained an inJ2iria for wliich he may 
 maintain an action without proof of pecuniary loss." 
 
 Companies governed by the Eailway Clauses Consoli- 
 dation Act, 1845, do not acquire any such right to subjacent 
 support, by purchasing the surface ; and the owners of the 
 mines may, after having given notice to the company, so as 
 to give them the opportunity of purchasing the mines, w^ork 
 them with impunity in the ordinary way (g). But neither 
 will an action lie against the company for any damage 
 suffered by the mine owner, although perhaps he may 
 demand compensation under th.e Act (li). 
 
 Right not 
 e.c jure 
 nafnne. 
 
 Art. 8H. — Disturbance of Support of 
 Buildings. 
 
 (1) /V tort is not committed by one, who so 
 deals with his own property, as to take away the 
 support necessary to uphold his neighbour's 
 huildings^ unless a right to such support has 
 been gained by grant, express or implied (/), or 
 by twenty years' uninterrupted user, peaceable, 
 open, and without deception {h). 
 
 (2) But the owner of land may maintain an 
 action for a disturbance of the natural right to 
 support for the surface, notwithstanding buildings 
 have been erected upon it, provided the weight 
 of the buildings did not cause the injur}- (7). 
 
 (1) Thus, in Partridge v. Scott (ni), it was said that 
 " rights of this sort, if they can be established at all, must, 
 
 {</) Great Western Rail. Co. v. Bennett, L. R. 2 H. L. 29 ; Ruabon 
 Brick Co. v. Great WeMern Rail. Co., [1893] 1 Ch. 4-27. 
 
 h) See Dnnn v. BirmingJiam Canal Co., L. R. 8 Q. B. 42. 
 
 (i) Fartridye v. Scott, 3 M. & W. 220 ; Broini v. Robin-^, 4 H. & N. 
 186 ; Xorth Eastern Rail. Co. v. Elliott, 29 L. J. Ch. 808. 
 
 {h) Dalton v. Angus, 6 App. Cas. 740. 
 
 (I) Brown v. Robinn, 4 H. & N. 186 ; Stroyan v. Knowles, G //'. 4o4. 
 
 (m) Ubi supra.
 
 Nuisances to Incorporeal Hereditaments. 217 
 
 we think, have their origin in grant. If a man builds a Art. 86. 
 house at the extremity of his hxnd, he does not thereby 
 acquire any easement of support or otherwise over the land 
 of his neighbour. He has no right to load his own soil, so ] 
 as to make it require the support of his neighbour's, unless 
 he has some grant to that effect." So, again, as between 
 adjoining houses, there is no obligation towards a neighbour, 
 cast by law on the owner of a house, merely as such, to 
 keep it standing and in repair ; his only duty being to 
 prevent it from being a nuisance, and from falling on to his 
 neighbour's property (ii). 
 
 (2) But where houses are built by the same owner. Implied 
 adjoining one another, and depending upon one another for ^ ' 
 support, and are afterwards conveyed to different owners, 
 there exists, by a presumed grant and reservation, a right 
 
 of support to each house from the adjoining ones (o). And 
 it is apprehended that the same rule would apply where 
 the owner of a detached house sold it, while retaining the 
 adjacent land. 
 
 (3) So, again, a grant of a right of support for buildings Right 
 
 is gained by uninterrupted user for twenty years, if the viv^^^^entv 
 enjoyment is peaceable and without deception or conceal- years' user, 
 ment, and so open that it must be known that some support 
 is being enjoyed by the plaintiff's building (jj). This case, 
 which was twice argued before the House of Lords sitting 
 with the judges as assessors, is the leading authority on the 
 question of support to houses, and the student should care- 
 fully study the various judgments. Whether, however, the 
 right rests upon the doctrine of a lost grant (q), or upon 
 
 (n) Chandler v. Bobinson, 4 Ex. 163. 
 
 (o) Richards v. Hose, 9 Ex. 218. 
 
 {p) Dcdton V. Angus, 6 App. Cas. 740. 
 
 (q) As to the theory of " lost grant," which is a presumption of law 
 that an easement or profit enjoyed for a long period must have had a 
 lawful origin, or else it woulcl have been stopped by the owner of the 
 servient tenement, the reader is referred to the opinion of Bowen, J., 
 in Dulton v. Angus, 6 App. Cas., at p. 777. At one time the doctrine 
 was restricted to ca.ses in which a grant (in tlie strict technical sense) 
 would have been possible, but of late 3'ears the courts have extended 
 the doctrine to all cases in which the right might have lawfully arisen, 
 eitlicr at law or in equity, e.g., under a condition, or even xmder a lost 
 
 p 2
 
 218 Nuisance. 
 
 Art. 86. prescription at common law, or upon the provisions of the 
 Prescription Act, is a question upon which the learned 
 judges and law lords differed ; but the law lords all agreed 
 that, even if the right is founded on the presumption of a 
 lost grant, the presumption is absolute, and cannot be 
 rebutted by showing that no grant has in fact been made. 
 
 (4) The right established in Dalton v. Angus to a right of 
 support for an ancient building by the adjacent land, equally 
 applies to support enjoyed from an adjacent building, even 
 although the buildings were erected by different owners (r). 
 
 Where (5) Even although no right of support for a building has 
 
 natural right j^ggj-^ gained, vet if the act of the defendant would have 
 
 to support " •' p 1 1 •, 1- 1-1 -.1 
 
 of site in- caused the site of the buildmg to subside even if the 
 fringed, the j^^iij^ing had not been there, the defendant will be liable, 
 
 consequent ° 
 
 damage to not merely for the damage done to the land, but also for the 
 
 a modern iniurv caused to the building. For he will have committed 
 
 house may be "* '' . , , 
 
 recoverable, a wrongful act (viz., an act causing the subsidence of his 
 
 neighbour's land), and will consequently be liable for all 
 
 damages which might reasonably have been anticipated as 
 
 the consequence of that act (.s). 
 
 Art. 87. — Disturbance of Bight to Light 
 and Air. 
 
 (1) There is no right, ex jure naturcp, to the 
 free passage of light to a house or building, but 
 such a right may be acquired by (a) express or 
 implied grant from the contiguous proprietors ; 
 (b) by reservation (express or implied) on the sale 
 
 charitable trust in favour of a fluctuating bod}- such as the inhabitants 
 of a town. 8ce Phi/lips v. Halfidai/, [1891] A. C. 281 ; Goorlmmi v. 
 Mayor of Saltash, 1 A^li.C&s.m\i; Att.-Gtn. v. ir»/(7/</, [1897] 2 Q. B. 
 318 ; Simpfon v. Mayor of Godmanchester, [1896] 1 Ch. 214. 
 
 (r) Ltmaitra v. Davi'*, 19 Ch. D. 281, where Hall, V.-C, considered 
 that the right arose under the Prescription Act. 
 
 (.s) Stroyan v. K}iowlt'), 6 H. & N. 454. And see Hunt v. PeaJce, 
 29 L. J. Ch. 785.
 
 Nuisances to IxcoiiPoiiEAL Hereditaments. 219 
 
 of the servient tenement ; or (c) by actual enjoy- Art. 87. 
 
 ment of such hght for the full period of twenty 
 
 years without interruption submitted to or 
 acquiesced in for one year after the owner of the 
 dominant tenement shall have had notice thereof, 
 and of the person making or authorising, such 
 interruption (f). ^^. ^'^^•-'•' • 
 
 (•2) Whether a right to the free access of air to 
 land or buildings at large can be gained, except 
 by express grant, seems doubtful (u). But 
 (semble) a right to the free access of air through 
 a particular defined channel, or through a par- 
 ticular aperture, may be acquired by implied lost 
 grant, or by immemorial user (.r). 
 
 (3) Where the owner of a house has acquired 
 a right to light in respect of any windows in that 
 house, he is entitled to prevent any person from 
 building so close to those windows as to render 
 the occupation of the house uncomfortable ac- 
 cording to the ordinary notions of mankind, and 
 (in the case of business premises) as to render it 
 impossible to carry on business therein as bene- 
 ficially as before (.//). 
 
 (4) Where a new building has been erected on 
 the site of_ one in respect of which a right to the 
 access of light had been gained, then, in order to 
 entitle the owner of the new building to access 
 of light, it must be shown that some defined part 
 of an ancient window admitted access of light 
 
 (0 2 & 3 Will. 4, c. 71, ss. 3, 4. 
 
 oi.','' o^^^""^ ''• ^e/ei-er, 4 C. P. D. 172: Chasteij v. Ark/a^nl, llSitol 
 2 Ch. 389 ; see S. C, [1897] A. C. 155. 
 
 .n'r'' T^^f I- ^'"^r/o?'!/, 25 Q. B. D. 481 ; Hall v. Lkhn.Ul Brewery Co., 
 49 L J. Ch. 6o5 ; Dent v. Auction Mart Co., L. R. 2 E.i. 238 ; Chn.,feu v. 
 AcU.and, siipra ; but see contra per Cottox, L. J., in Bryant v. Leftrer 
 supra. 
 
 {>/) Colls V. Home and Colonial Stores, Liniife'l, [1904] A. C. 179. 
 
 L.T. P 3 *
 
 220 
 
 Nuisance. 
 
 Art. 87. 
 
 Illustrations. 
 Implied 
 grants of 
 right. 
 
 Adjacent 
 proprietors 
 purchasing 
 from a com- 
 mon vendor 
 contempo- 
 raneously. 
 
 No implied 
 reservation 
 by a vendor 
 of right to 
 light. 
 
 through the space occupied by a defined part of 
 an existing \Yindow (z). 
 
 (1) Implied grants of easements are generally fomided 
 on the maxim, " A man cannot derogate from his own grant." 
 In other words, the grantor of land which is to be used for 
 a particular purpose is under an obligation to abstain from 
 doing anything on adjoining property belonging to him 
 which would prevent the land granted from being used for 
 the purpose for which the grant was made (a). Therefore, 
 if A. grants a house to B., and keeps the land adjoining 
 the house in his own hands, he cannot build upon that 
 land so as to cause a nuisance by depriving the windows 
 of the house of their light, unless he has expressly reserved 
 the right to do so (b). And if he grant the house to B. and 
 the land to C, C. has no right to build so as to cause a 
 nuisance by obstructing the light of the house, for A. 
 cannot grant to C. any greater right than he himself 
 possesses (c). 
 
 (2) And so, where two separate purchasers buy two 
 unfinished houses from the same vendor, and, at the time 
 of the purchase, the windows are marked out, this is a 
 sufficient indication of the rights of each, and implies a 
 grant ((/). And the same rule appears to apply where two 
 devisees take under the will of the same testator (c). 
 
 (3) But where the grantor sells the land and retains the 
 house, there is no duty upon the grantee of the land to 
 abstain from building so as to darken the windows of the 
 house, and the grantor cannot prevent him ; for to do so 
 would be a derogation from his own grant (/). 
 
 (z) Pendarres v. JMunro, [1892] I Ch. 611 ; Scott v. Papt, 31 Ch. 1). 
 .554. 
 
 {a) Aldin v. Latimer, Clark <b Co., [1894] 2 Ch. 437. 
 
 (h) Hayiits v. King, [1893] 3 Ch. 439 ; Broomjichlx. Williams. [1897] 
 1 Ch. 6U2. 
 
 (c) Alhn V. Taylor, 16 Ch. D. .355; Wil>ion v. Qwm'xClub, [1891] 
 3 Ch. 522. 
 
 (d) Comjjton v. Jiichards, 1 I'r. 27 ; A'».ssc('(' v. ]Vatt.-<, lU App. Cas. 
 590. 
 
 (e) Phillip.-< V. Lou; [1892] 1 Ch. 47. 
 
 ( / ) White V. Ba.-ifi, 7 H. & N. 722 ; A7//.s v. Mavchrstcr Carriage 
 Co.,2C. P. D. 13.
 
 Nuisances to Incorporeal Hereditaments. 221 
 
 (4) A workshop and an adjacent piece of land belonging Art. 87. 
 
 to the same owner were put up for sale by auction. The 
 
 workshop was not then sold, but the piece of land was. ^^'l^ere no 
 
 '- reservation 
 
 A month after the conveyance the vendor agreed to sell the of light, a 
 
 workshop to another person. The workshop had windows subsequent 
 
 , . , ,, , . Pin purchaser 
 
 overlooking and receivmg then- light from the piece oi land from vendor 
 
 first sold. The purchaser of the piece of land proposed to ^^'^^ "° better 
 
 build thereon so as to obstruct the light of the workshop 
 
 windows. On an action being brought to restrain him, it 
 
 was held that as the common vendor had not, when he 
 
 conveyed the piece of land, expressly reserved the access 
 
 of light to his windows, the purchaser thereof could build 
 
 so as to obstruct them, and that whatever might have been 
 
 the case had both lots been sold at one auction, there was 
 
 under the circumstances no implied reservation of light 
 
 over the piece of land first sold {g). 
 
 (5) To gain a right by prescription under s. 3 of the Right 
 
 1 Prescription Act, 1832 (/i), there must be an uninterrupted ^^^"^[.-^^^[^1^ 
 
 , user for twenty years without the written consent of the 
 
 ' owner of the servient tenement from the time when window 
 
 • spaces are complete and the building is roofed in {i). As, 
 
 j however, by s. 4, nothing is to be deemed an interruption 
 
 ' unless submitted to for a year after notice, it has been held 
 
 ' that enjoyment for nineteen years and 330 days, followed 
 
 by an interruption of thirty-five days just before the action 
 
 was commenced, was sufficient to establish the right (_/'). 
 
 However, for the purposes of commencing an action au 
 
 inchoate title of nineteen years and a fraction is not 
 
 sufficient, and no injunction will be granted until the 
 
 twenty years have expired (k). 
 
 (6) The interruption, to defeat the right, must be the 
 interruption of the defendant, and not a voluntary depri- 
 vation by the plaintiff himself of the access of light. Thus, 
 the owner of a building having windows with movable 
 
 (y) Wheeldonx. Burrows, 12 Ch. D. .31. 
 
 (h) 2&3 Will. 4, c. 71. 
 
 (/) Co/lis V. Laugher, [1894] 3 Ch. 6,")9. 
 
 (./) FUiihf V. Thomas, 11 A. & E. 688. 
 
 (A) I.ord Battersea v. Commissioner'^ of Stivers, [1895] 2 Ch. 708. 
 
 t^ 
 
 
 £'^ I 
 
 /-c;^ . -.^ 
 
 . U*.-^.,
 
 222 Nuisance. 
 
 Art. 87. shutters, which are opened at his pleasure for the admission 
 
 of light, acquires a prescriptive right to light, under s. 3 
 
 of the Prescription Act, at the end of twenty years, if he 
 opens the shutters at any time he pleases for the admission 
 of hght during those twenty years, and if also there is no 
 such interruption of the access of light over the neighbour- 
 ing land as is contemplated by s. 4 (l). 
 
 (7) The acquisition of a right to light under the Prescrip- 
 tion Act by twenty years' user is absolute, and binds even 
 remaindermen and reversioners. But as ss. 3 and 4 of the 
 Act do not expressly mention the Crown, no prescriptive 
 right to light against the Crown or its tenants can be gained 
 under it (m). 
 
 Right to (8) Actions to prevent, or to claim damages for, inter- 
 
 access of air. ference with ancient lights, are frequently spoken of as 
 cases of light and air, and the right relied on, as a right to 
 the access of " light and air." But this is inaccurate. 
 The cases, as a rule, relate solely to the interference with 
 the access of light, and it has been said that a right to the 
 access of air over the general unlimited surface of the laud 
 of a neighbour cannot be acquired by mere enjoyment {n). 
 Thus, in Webb v. Bird (o), it was held that the owner of 
 an ancient windmill could not, under the Prescription Act, 
 prevent the owner of adjoining land from building so as to 
 interrupt the passage of air to the mill. A similar decision 
 was given in Bryant v. Lefevcr{p), where it was sought to 
 restrain the defendant from building so as to obstruct the 
 access of air to the plaintiff's chimneys. However, having 
 regard to the observations of the Lords of Appeal in 
 Chastey v. Ackland (q), in which the appeal was withdrawn 
 on terms before judgment, the question must be considered 
 to be eminently doubtful. Anyhow, it seems that a right to 
 the uninterrupted passage of air along a defined channel (r) 
 
 (I) Cooper V. Straker, 40 Ch. 1). 21. 
 
 (m) Wheaton v. Maple d: Co., 11893] 3 Cli. 48; Pirrii v. Eamen, 
 [1891] 1 Ch. 658. 
 
 («) Per Cotton, L.J., Bryant v. Leferer, 4 C. P. I). 172. 
 
 (o) 13C. B. (N.s.) 841. (ry) [1897] A. C. 1;55. 
 
 (p) Supra. {)') E.g., a ventilating shaft.
 
 Nuisances to Incoeporeal Hereditaments. 223 
 
 may be gained uuder s. 2 of the Prescription Act by twenty Art. 87. 
 years' uninterrupted enjoyment (s), or possibly a right to 
 the free flow of air through a defined opening, for instance 
 a window ; at all events if the diminution complained of 
 involves danger to health (t). 
 
 (9) Where a right to light has been acquired by express Degree of 
 grant, the question whether any substantial infringement of c!ivinTris"t 
 the right has taken place must depend upon the construction an action, 
 of the grant. But where a right has been acquired by implied 
 grant or under the Prescription Act, the owmer of the right 
 is entitled to prevent any person from building so close to 
 the window in respect of which the light is acquired as 
 to render the occupation of the house in which the window 
 is situated uncomfortable according to the ordinary notions 
 of mankind, and (in the case of business premises) to 
 prevent the owner from carrying on business as beneficially 
 as before {u). The sole question to be determined in 
 deciding whether a right to light has been so far infringed 
 as to give rise to an action is whether the obstruction is 
 so great as to amount to a nuisance {v). It follows, there- 
 fore, that the use of an extraordinary amount of light for 
 tw^enty years wall not give rise to a right to receive that 
 amount of light always, because the question whether an 
 obstruction of light is so great as to be a nuisance cannot 
 be affected by any considerations of what the light has 
 been used for(x). Very generally speaking an obstruction 
 of the light which flows to a window will not be considered 
 a nuisance if the light which remains can still flow to the 
 window at an angle of forty-five degrees with the horizontal, 
 especially if there is good light from other directions as 
 well(?/). 
 
 (.*) 5a«.s V. Gregory, 25 Q. B. D. 481. 
 
 (0 Citi/ of London Breioery Co. v. Ttnnant, L. R. 9 Ch at 
 p. 212. 
 
 (u) Coll.s V. Boine and Colonial Stores, [1904] A. C. 179. 
 
 (o) Ibid., per Lord Davey, at p. 204. 
 
 {.<;) Ambler v. Gordon, [1905] 1 K. B. 417. 
 
 (y) Per Lord Lindley in Colls v. Home and Colonial Stores, [1904] 
 A. C. at p. 210 ; and see Kine v. Jolly, [1905] 1 CIi. 480.
 
 224 
 
 Nuisance. 
 
 Art. 87. 
 
 Plaintiff 
 contributing 
 to nuisance. 
 
 Enlargement 
 of ancient 
 lights. 
 
 Right to light 
 exclusively 
 confined to 
 buildings. 
 
 (10) And so, where ancient lights are obstructed, the 
 fact that the owner of the building to which the ancient 
 rights belong has himself contributed to the diminution of 
 the light, will not of itself preclude him from obtaining an 
 injunction or damages [z). 
 
 (11) Nor will an enlargement of an ancient light (although 
 it will not enlarge the right) (a) diminish or extinguish it. 
 And therefore, where the owner of a building having ancient 
 lights enlarges or adds to the number of windows, he does 
 not preclude himself from obtaining an injunction to restrain 
 an obstruction of the ancient lights (b). 
 
 (12) The dominant tenement must be a building ; and, 
 therefore, a person who grants a lease of a house and 
 garden is not precluded (under the doctrine of not derogat- 
 ing from his own grant) from building on open ground 
 retained by him adjacent to the house and garden, though, 
 by so doing, the enjoyment of the garden, as pleasure 
 ground, is interfered with, there being no obstruction of 
 light and air to the house (c). It has, however, been 
 recently held by Kekewich, J., that a greenhouse is a 
 building within the meaning of the Prescription Act, and 
 capable of gaining a right to light (d). 
 
 Art. 88. — Disturbance of Water Rights. 
 
 (1) Every owner of land on the banks of a 
 natural stream has a right ex jure naturcE to the 
 ordinary use of the water which flows past his 
 land (e.g., for irrigation, feeding cattle, domestic 
 purposes, etc.). Such an owner may also make 
 
 (2) Taplinfj v. Jones, 11 H. L. Cas. 290 ; 
 68.3 ; Straight v. Burn, L. R. 5 Ch. 163. 
 
 (a) Cooper v. Hubhuck, 31 L. J. Ch. 1'23. 
 
 (b) Ayndey v. Glover, L. R. 18 Eq. 544. 
 
 (c) PottH V. Smith, L. R. tt E<|. 311. 
 
 (d) Clijford V. HoU, [18991 1 Ch. 698. 
 
 Arcederkne v. Kefk, 2 Gif.
 
 Nuisances to Incorporeal Hereditaments. 2t25 
 
 use of the water for other purposes than ordinary Art. 88. 
 ones, provided that, in so doing, he does not 
 interfere witli the similar rights of other riparian 
 owners lower do\\n the stream (e) 
 
 (•2) An artificial watercourse may have been 
 originally made under such circumstances, and 
 have been so used as to give to the owners on 
 each side all the rights which a riparian pro- 
 prietor would have had if it had been a natural 
 stream (/). 
 
 (3) There is, however, no right to the con- 
 tinued flow of water which runs through natural 
 underground channels, which are undefined 
 or unknown, and can only be ascertained by 
 excavation (g). 
 
 I (4) No one has a right to pollute the water 
 percolating under his own land and flowing 
 thence by underground channels into another's 
 land so as to poison the water which that other 
 has a right to use (//). 
 
 (1) Every riparian owner may reasonably use the stream uiustratious 
 
 for drinkine, waterincj his cattle, or turning his mill, and RigJ^ts 
 
 T-ii- -TTiO* riparian 
 
 other purposes connected with his tenement, provided he owners. 
 
 does not thereby seriously diminish the stream (i). But he 
 
 has no right to divert the water to a place outside his 
 
 tenement, and there consume it for purposes unconnected 
 
 witli the tenement (j). 
 
 (t) Miiar V. Gi/monr, 12 Moo. P. C. 131 ; Emhrty v. Ov;en, 6 Ex. 
 353. 
 
 ( /■) Sntdife v. Booth, 32 L. J. Q. B. 136 ; Buili/ <t' Co. v. Clark, Son 
 and Morland, [1902] 1 Ch. 649. 
 
 {g) Chase^nore v. Richards, 7 H. L. Cas. 349 ; Bradford Corpora- 
 tion V. Ferrand, [1902] 2 Ch. 655. 
 
 (h) Ballard \: Tomlinson, 29 Ch. D. \15. 
 
 (0 Emhrey v. Owen, 6 Ex. 353. 
 
 ( /) McCartney v. Londonderry and Lough Sirilly Bail. Co. [1904] 
 A. C. 301.
 
 '226 Nuisance. 
 
 Art. 88. (2) If the rights of a riparian proprietor are interfered 
 
 with, as by diverting the stream or abstracting or fouling 
 of riparian ^^^ water, he may maintain an action against the wrong- 
 rights, doer for violation of the right, even though he may not be 
 able to prove that he has suffered any actual loss (k). So 
 if one erects a weir which affects the flow of water to 
 riparian owners lower down the river, an injunction will be 
 granted (1). 
 
 ■ (3) But where a riparian owner takes water from a river, 
 
 i and after using it for cooling certain apparatus returns it 
 
 i undiminished in quantity and unpolluted in quality, a 
 
 lower riparian owner has no right of action. For his only 
 
 right is to have the water abundant and undefiled, and that 
 
 right is not infringed (m). 
 
 Abstracting (4) The owner of land containing underground water, 
 
 water^ ^"^ which percolates by undefined channels, or by defined but 
 
 unascertained channels, and flows to the land of a neighbour, 
 
 has the right to divert or appropriate the water within his 
 
 own land so as to deprive his neighbour of it («). And his 
 
 right is the same whatever his motive may be, whether 
 
 bond fide to improve his own land, or maliciously to injure 
 
 his neighbour, or to induce his neighbour to buy him out (o). 
 
 The same rule applies to common surface water rising out 
 
 of springy or boggy ground and flowing in no defined 
 
 channel (j))- 
 
 Fouling '; (5) But although there can be no property in water 
 
 underground ^.^1-^-,^^^ through underground undefined channels, vet no 
 
 water. 
 
 (k) Wood V. Waud, 3 Ex. 748 ; Emhrnj v. Omm, 6 Ex. S53 ; 
 Crosdey v. Lightoider, 2 Ch. App. 478. 
 
 (I) Belfast Ropev-orks v. Boyd, 21 L. R. Ir. 560. 
 
 (m) Ken-sit v. Great Eastern Rail. Co., 27 Ch. D. 122. In that case 
 the water was abstracted by a non-riparian owner under a license from 
 a riparian owner. The license, however, could not confer any right, 
 as a riparian owner clearly cannot confer on others such rights as he 
 has as riparian owner. But, as the action failed against the non- 
 riparian owner, a fortiori it would against a riparian owner taking 
 away water and returning it undiminished and unpolluted. 
 
 (n) Cknsemore v. Richards, 7 H. L. Cas. 749 ; Bradford Corpora- 
 tion V. Ferrand, [1902] 2 Ch. (!.')5. 
 
 (o) Mayor of Bradford v. Plck/e.x, [189.5] A. C. 587 : see .supra. 
 Art. 78, lilust.'(6), p. 196. 
 
 ip) Rairsfroii V. Taylor, 11 Ex. 309.
 
 Nuisances to Incorporeal Hereditaments. 227 
 
 one is entitled to pollute water flowing beneath another's Art. 88. 
 
 land. Thus, in Ballard v. Tomlinson (q), where neighbours 
 
 each possessed a well, and one of them turned sewage into 
 
 his well, in consequence whereof the well of the other 
 
 became polluted, it was held by the Court of Appeal that 
 
 an action lay ; for there is a considerable difference between 
 
 intercepting water in which no property exists, on the one 
 
 hand, and sending a new, foreign and deleterious substance 
 
 on to another's property, on the other. The one merely 
 
 deprives a man of something in which he has no property, 
 
 the other causes an active nuisance. 
 
 Rights in derogation of those of the other riparian pro- Exception, 
 prietors may be gained by grant or prescription (r). righTs"^ ^^*^ 
 
 Art. 89. — Disturbance of Private BigJits of 
 Way. 
 
 (1) A right of way over the L^nd of another 
 can only arise by grant, express or impHed, or by 
 prescription. It is usually appurtenant to and 
 passes along \Yith some corporeal hereditament ; 
 but a right of way " in gross" may be granted to 
 a particular person apart from the ownership of 
 any land. 
 
 (2) A person commits a tort who disturbs the 
 enjoyment of a right of way by blocking it up 
 permanently or temporarily, or by otherwise 
 preventing the free user of it. 
 
 1 (1) Rights of wav are susceptible of almost infinite Kiglit 
 
 • \l mi , , 1 • w r X 1 , restricted by 
 
 ivariety. Thus there may be a right of way to church, ^]^q terms of 
 
 wliich can only be lawfully used for the inhabitants of a t^ie grant or 
 
 parish for going to and from the church (s) ; or the right j,f ^j^g ^gei._ 
 
 (q) 29 Ch. D. 11,5. 
 
 (r) See Mason y. Hill, '^ B. & Ad. 304 ; Carlyon v. Loveriny, 
 1 H. & N. 784. 
 (s) See Brockletxink v. Thompson, [1903] 2 Ch. 344.
 
 228 
 
 Nuisance, 
 
 of necessity. 
 
 Art. 89. may be limited by the grant (or if it depends on prescription, 
 may be limited by the nature of the user) to a footway, a 
 horseway, or carriageway, and the like. Indeed, grants are 
 j somewhat strictly construed, and a grant of a right of 
 carriageway will not necessarily authorise the grantee to 
 drive cattle over the way {t). So, again, proof of user for 
 farming purposes does not necessarily prove a right of way 
 for the purpose of conveying coal from a mine (u) ; nor does 
 the finding by a jury of a right of vv'ay for carting timber 
 prove a right for all carts, carriages, horses, or on foot, or 
 for any of such rights (.r) . 
 Rights of way (2) Where one grants land to another, and tliere is no 
 access to the land sold except through other land of the 
 grantor, or no access to the land retained except through 
 the land sold, the law implies a grant or reservation (as the 
 case may be) of a private right of way limited to such pur- 
 poses as will enable the owner of the dominant tenement to 
 enjoy it in the condition it was in at the time when the 
 severance took place ; ex. (jr., if it was then farm land the 
 right of way will be limited to farming purposes, and so 
 on (?/). In ways of necessity, however, the owner of the 
 dominant tenement cannot range across the servient tene- 
 ment between the points most convenient for himself, but 
 is obliged to pursue the track selected by the owner of the 
 servient tenement (5;). It must also be pointed out that 
 when the necessity ceases (for instance, if the owner of the 
 dominant tenement buys a field intervening between it and 
 the highway), the right ceases also ; but, on the other hand, 
 it appears to revive again when the necessity revives {a). 
 
 (3) Eights of way of necessity must, however, be carefully 
 distinguished from a right of using a particular made road. 
 
 liiijjlied 
 grant of 
 particular 
 way. 
 
 (t) See judgments in IktUanl v. Di/xoii, 1 'I'aunt. "279. 
 
 (?t) CowlitKj V. Hiijginson, 4 M. & W. '245. 
 
 (x) Hi(jham v. Rabett, 5 Bing. N. C. 622 ; and see also Wimhltdon 
 Conservatorn v. Dixon, 1 Ch. I). .SG2 ; and Hrndbiirn. v. Morris, .S ihid. 
 812. 
 
 (y) Corporation 0/ Loiulon v. I'i<,lilx, l.S Ch. 1). 798. 
 
 (2) Bolton V. Bolton, 11 Ch. D. 968. 
 
 [a] Holnv >i v. (toring, 2 Bing. 76 ; Pair-ton v. Spencer, 1 B. & S. 
 .■)S4.
 
 Nuisances to Incorporeal Hereditaments. 229 
 
 which is sometimes imphed in a conveyance. Thus, where Art. 89. 
 a lessee of two adjacent plots builds a house on each, and 
 makes a passage partly on plot A. and partly on plot B., 
 forming a back road to the gardens of each, and then assigns 
 plot A. to X., and plot B. to Z., without mentioning any 
 right of way, both X. and Z. will have the right of using 
 the road not as a way of necessity (although it may be the 
 only method of getting into their respective gardens except 
 through their houses), but by implied grant as being in the 
 nature of a continuous and apparent easement (b). 
 
 (4) Under s. 2 of the Prescription x\ct (c), a prescrip- Prescriptive 
 tive right of way is gained by twenty years' uninter- ^^° ^ ^ ^ ^^^" 
 rupted user as of right. It seems, however, that this 
 
 section only applies where the user is practically a con- 
 tinuous one. Thus, where the right claimed was a right of 
 way for removing timber as it was cut, and it appeared that 
 the right had only been exercised at intervals of several 
 years, it was held that the Act did not apply to so discon- 
 tinuous an easement, and that no prescriptive right was 
 gained by the fact that more than twenty years had elapsed 
 since the first user of the alleged way (d). 
 
 (5) It does not require a permanent obstruction to give Obstruction 
 rise to a right of action. Thus padlocking a gate (e), or '^ 
 permitting carts or waggons to remain stationary on the 
 
 road in the course of loading and unloading, in such a way 
 as to obstruct the passage over the road, will give rise to an 
 action (/). 
 
 The above is necessarily only a mere sketch of the law 
 relating to private ways — a subject on which a volume 
 might be easily written. For further information the reader 
 is referred to Mr. Gale's or Mr. Goddard's treatises on Ease- 
 ments, or to Mr. Blyth's Epitome of the Law of Easements, 
 an excellent book for students. 
 
 (b) See Brown v. Alabaster, 37 Ch. D. 490, where the doctrine of 
 continuous or apparent easements is discussed. 
 
 (c) -2 & 3 Will. 4, c. 71. 
 
 (d) Ilof/in.s V. Verney, 13 Q. B. D. 304. 
 (t) KidijM V. Moor, 9 C. B. 364. 
 
 (y ) Thorpe v. BrumlUt, L. R. 8 Ch. 650.
 
 230 
 
 Nuisance. 
 
 Art^O. j^^^^ 90.~Disfurbance of Bights of Common. 
 
 (1) A right of common is a right which one 
 person has of taking some part of the produce 
 of land, the whole property in which is vested in 
 another (g) . It may be appendant to other land 
 (that is, may owe its origin to a general privilege 
 supposed to have been conferred b}^ lords upon 
 tenants to whom they granted arable land), or 
 appurtenant to other land (in which case it must 
 have arisen by grant or prescription), or in gross 
 (which must arise in the same way). Common 
 appendant is restricted to horses, oxen, cows, and 
 sheep (which are called commonable beasts) ; but 
 common appurtenant or in gross is not necessarily 
 so restricted. 
 
 (2) A person commits a tort against a com- 
 moner, who, having no right of common, puts 
 beasts on the land ; or, having such a right, puts 
 uncommonable beasts on it ; or surcharges, by 
 putting more beasts on it than he is entitled to 
 put ; or (whether lord or stranger) encloses any 
 part of the common without leaving sufficient 
 land for the full enjoyment of the commoners' 
 rights, and without having obtained the leave of 
 the Board of Agriculture and Fisheries (Ji). 
 
 Turning un- (1) The lord may by prescription put a stranger's cattle 
 commonable q^ )-q ^]^q common, and also, by a like prescription for 
 
 cattle on to , i i i 
 
 the common, common appurtenant, cattle that are not commonable may 
 be put on to the common ; Init unless such prescription exists, 
 the cattle of a stranger, or the uncommonable cattle of a 
 commoner, may be driven off, or distrained damage feasant, 
 or their owner may be sued either by the lord or a 
 commoner. 
 
 Surcharging. (2) Surcharging generally happens where the riglit of 
 common is appendant, that is to say, where the common is 
 
 (fj) Goodeve's Real Property, 8rd ed., 3.S5. 
 (Ii) oG & 57 Vict. c. 57 ; 3 Edw. 7, c. 31.
 
 Nuisances to Incorporeal Hereditaments. 231 
 
 limited to beasts that serve the plough or manure the land, Art. 90. 
 and are levant and couchant on the estate ; or where it is 
 appurtenant, that is to say, where there is a right of depas- 
 turing a limited number of beasts upon the common, which 
 number is taken to be the number which the laud, in respect 
 of which the common is appurtenant, is capable of sup- 
 porting through the winter if cultivated for that purpose («). 
 A common in gross can only arise from grant to a particular 
 person and his heirs, or by prescriptive personal enjoyment 
 by a man and his ancestors, and, having no connection with 
 his land, the number of commonable beasts is usually 
 expressly limited by the grant or prescription. Common 
 appendant and appurtenant being limitable by law, a com- 
 moner surcharging the common commits a tort for which 
 the lord may distrain the beasts surcharged, or bring an 
 action; and any commoner may also bring an action, 
 whether the surcharger be the lord or a fellow com- 
 moner (k). 
 
 (3) The common being free and open to all having Approve- 
 commonable rights over it, it follows that when the owner "^^"t- 
 of the land (or some other person) so encloses or obstructs 
 it that the commoner is precluded from enjoying the benefit 
 to which he is by law entitled, the commoner may maintain 
 an action (/). Thus, if the owner ploughs it up, or drives 
 off the commoner's beasts, or stocks it with rabbits to such 
 an extent that all the herbage is eaten by them, he commits 
 a tort, although the owner may make a warren, provided 
 the rabbits be kept under so as not to occasion injury 
 to the commoners (m). However, most modern actions 
 respecting commons have arisen out of what is called 
 approvement by the owners of the soil, that is to say, the 
 enclosure of part of the common. Before 1894 this was 
 legal, under the provisions of the Statute of Merton, so long 
 as the owner left sufficient connnon for the full enjoyment 
 of the commoners' rights, although the onus of proving this 
 
 (i) Carry. Lambtrt, L. R. 1 Ex. 168. 
 
 (k) Stephen's Commentaries, Bk. V., Clui}). S. 
 
 (I) City Commissioners of Saifarx \. Glassc, L. R. 19 Eq. I.S4. 
 
 (m) Ballcji^ V. LaiKjdon, Cro. Eliz. 876.
 
 232 Nuisance. 
 
 Art. 90. lay on the owner, and not on the commoners (//). If, how- 
 ever, the approvement diminished the common to such an 
 extent as to obstruct the rights of the commoners, then 
 an action would lie against the owner of the soil. Thus, in 
 an action brought on behalf of all the tenants of a manor to 
 prevent the lord from enclosing parts of the waste, and 
 from digging or removing any part of the soil of the waste 
 so as to interfere w4th their right of common, it was shown 
 that the tenants had rights of common of pasturage appen- 
 dant over the waste for sheep, and that certain landowners, 
 not tenants of the manor, had rights of common appurtenant 
 over it for sheep, and that such rights appendant and 
 appurtenant entitled the commoners to turn out a greater 
 number of sheep than the waste would carry. It was, 
 however, proved that, having regard to the average number 
 of sheep that had actually been turned out for many years 
 past, it was highly improbable that nearly as many sheep 
 as the waste could carry would ever be turned out again. 
 It was, nevertheless, held that this made no dill'erence, 
 and that the question of sufficiency of common must be 
 determined according to the theoretical number of sheep 
 which the commoners were entitled to turn out, and conse- 
 quentl}^ the lord was restrained from doing auy acts which 
 would diminish the amount of pasturage (o). 
 Law of (4) However, the old law has been greatly modified by 
 
 Commons ^j^^ statute 56 & 57 Vict. c. 57, by which, in future, the 
 
 Amendment . . 
 
 Act, 1893. consent of the Board of iVgriculture and Fisheries is made a 
 
 condition precedent to inclosures and approvements of com- 
 mon. "With regard to inclosures of commons, the reader is 
 also referred to the Metropolitan Commons Acts, 1866 and 
 1869, and the Commons Act, 1876. It is conceived that 
 the Act of 1893 does not alter the lord's right of digging 
 for gravel, mould, loam, and subsoil in the waste, so long as 
 he does not infringe on the rights of the commoners, as such 
 acts stand on a different basis to approvements (jj). 
 
 {ii) Bel/-- V. Thompson, 6 Ch. App. 732 ; Jiohiiifoii v. Dulttp Simjh, 
 11 Ch. D. 798. 
 
 (o) Eohtrtson v. Hartopp, 43 Ch. D. 484. 
 (p) See Hall v. Byron, 4 Ch. 1). 6(57.
 
 Nuisances to' Incorporeal Hereditaments. 283 
 
 Art. 91. 
 Art. 91. — Disturhance of Bights of FisJier/j. 
 
 (1) A right of fishery may be exclusive or in 
 common. An exchisive right of fishery (called 
 a several fishery) may arise from the exclusive 
 ownership of the bed of a non-tidal river, lake, or 
 pond ; or from a grant, express or implied ; or 
 from the party claiming the right being a riparian 
 owner on a non-tidal river ; or (in tidal waters) 
 by grant from the Crown. A common of fishery, 
 or common of free fishery, as it is sometimes 
 called, is a right to lish in common with the 
 owner of the fishery, or with others, and always 
 depends on grant, either express, or implied by 
 long user. 
 
 ("2) A person commits a tort when he fishes in 
 another's fishery, whether he takes fish or not ; 
 or when he disturbs, or drives away, or destroys 
 the fish in a fishery ; or diverts the water to an 
 unreasonable extent. 
 
 (1) The person who is the owner of the bed of the nou- Origin of 
 tidal river, pond, or lake in which a fishery is situate, has, pj^^gatorfal 
 prima facie, the exclusive right to fish therein. Such a rights, 
 right is called a ' ' sever al^ territorij,! fisher y . ' ' and the right 
 
 of fishing arises from the ownership of the soil entitling the 
 owner to the profits arising within it [q). A manorial 
 fishery is generally of this character when the river is non- 
 tidal. The river and the fishery in it form a separate close , 
 parcel of the manor (;). 
 
 (2) But a person may be the owner of a fishery although 
 he is not owner of the soil, in which case his title must 
 have originally been derived by a grant from the owner of 
 the soil, and is sometimes, although inaccurately, described 
 
 (q) Lord Fitziratttr's Cai^e., 1 Mod. 105 ; Gibbs v. Woo/lincott, 3 Salk. 
 290 ; Cooper v. Phibbs, L. R. 2 H. L. 165. 
 
 (r) Duke of Devonskirf, v. Pattiiieion, 20 Q. B. U. 265.
 
 234 
 
 Nuisance. 
 
 Art. 91. 
 
 Common of 
 piscary. 
 
 Piscatorial 
 rights of the 
 piiljlie. 
 
 as a "free fishery"; such a fishery is an incorporeal 
 hereditament (s). 
 
 (3) A person may also be owner of a fishery by reason of 
 his being owner of the riparian land abutting on a non-tidal 
 river, and, in the absence of evidence to the contrary, is 
 presumed to be such owner (t). But this presumption may 
 be rebutted by showing that when the riparian land was 
 granted, the fishery in the water was in the possession 
 of another person (it), or by showing user of the fishery by 
 another, and absence of user by the riparian owner. 
 
 (4) A person may have a right to fish from his land 
 although he is not owner of the fishery. This is a 
 " common of fishery " or a " common of free fishery," and 
 arises by grant from the owner of the fishery of a right to 
 fish in common with the owner, or in common with the 
 owner and other grantees. 
 
 (5) A person may also have a right to fish in common 
 with others throughout a fishery, irrespective of any owner- 
 ship of the soil of the river or of the riparian land. This is 
 also " common of fishery " arising by grant from the owner 
 of the fishery (x). 
 
 (6) The public have no right to fish in a non-tidal 
 river (?/) ; but they have a prima facie right to fish in tidal 
 water. This claim may, however, be rebutted by showing 
 evidence of the ownership of a several fishery in another of 
 such antiquity as to presume a legal origin {z). And if this 
 be once proved, the exercise of fishing by the public, even 
 for a long period, will not take the several right away, or 
 confer any right on the public. For the public cannot, in 
 law, prescribe for a profit a prendre in alieno solo, nor 
 
 (.s) Dnlr, of Somerset v. Foyivell, 'y B. & C 875. 
 
 {t) Parlherkhe v. Manon, 2 Chit. 658. 
 
 (n) Duke of Deronshire v. Pattiii.son, 20 Q. J3. 1). 265 ; Bloom/ield v. 
 Johmton, 8 Ir. C. L. R. 97, 104. 
 
 (x) Bracton, Lib. iv. c. 28, s. 4. 
 
 iy) Piarce v. Scotcher, 9 Q. B. D. 162 ; Bloxmt v. Layard, [1891] 
 2 Ch. 681 n ; and Smith v. Avrlrens, [1891] 2 Ch. 678, and cases there 
 cited. 
 
 (z) Malcom.^ou v. O'Bea, 10 H. L. Cas. 293.
 
 Nuisances to Incorporeal Hereditaments. -285 
 
 acquire any right adversely to the owner under any statute Art. 91. 
 of limitations ; and an incorporeal hereditament, such as a 
 several fishery, which can only pass by deed, cannot be 
 abandoned (a). The existence of a several fishery in tidal 
 waters rebuts the prima facie claim of the Crown to the 
 soil of the foreshore {h). 
 
 (7) There is much confusion in books with regard to the Meanings 
 meaning of the expressions "several fishery" and " f^'^e i^gj^g^.^, >> .^^^^1 
 fishery," and it has been attempted to draw a distinction "several 
 between them, viz., that a fishery is said to be "several" '^ ®'^^" 
 when accompanied by ownership of the soil, and said to be 
 
 " free " when existing apart from the soil ; but this is not 
 accurate. The words "several" and "free" are only 
 alternative expressions for the same thing (c) . The confusion 
 has arisen from a misprint in the text of Co. Litt. 122a. 
 
 (8) A several fishery in tidal waters may exist as an Several 
 incorporeal right arising from a grant by the Crown apart tijal'^^'aters. 
 from the ownership of the soil. Thus, where the free 
 inhabitants of ancient tenements in a borough had, from 
 
 time immemorial, exercised the exclusive privilege of 
 dredging for oysters in tidal waters, it was held that a 
 lawful origin for the usage ought to be presumed if reason- 
 ably possible ; and that the presumption which ought to be 
 drawn as reasonable in law and probable in fact was, that 
 there was a grant to the corporation of the borough, subject 
 to a trust or condition in favour of the free inhabitants of 
 ancient tenements in the borough {d). However, a several 
 right of fishery in tidal waters usually arises from the 
 ownership of the soil of the foreshore, which again depends 
 on express grant from the Crown, or grant implied from 
 long user (e). It should be observed that a several fishery 
 in a tidal river, the waters of which have permanently 
 
 (d) NcUl V. Dnke of Devonshire, 8 App. Cas. 135. 
 {h) Att.-Gen. v. Emert<on, [1891] App. Cas. 649. 
 
 (c) Gippft v. Woollicott, Holt, 323 ; Stuart-Moore on Foreshore, 
 p. 740 ; Hoi ford v. Bailey, 13 Q. B. 426. 
 
 (d) Goodman, v. Mai/or of Saltash, 7 App. Cas. 633. 
 
 (ft) See Xei// v. DiiL-e oj Devonshire, 8 App. Cas. 135 ; Att.-Gen. v. 
 Kin< ffoii, -supra : and Moore on Foreshore, pp. 658, 734.
 
 236 
 
 Nuisance. 
 
 Art. 91. 
 
 Copyhold 
 fisheries. 
 
 Disturbance 
 of fishery. 
 
 receded from one channel, and flow in another, cannot be 
 followed from the old to the new channel (/). 
 
 (9) A fishery, and also a right of common of fishery, may 
 be held by copy of court roll within a manor (</). 
 
 (10) A fishery is disturbed if a person prevents fish from 
 approaching it from the lower reaches of the river (/i),or 
 drives them away by pouring sewage or other noxious 
 matter into the stream (i), as much as if he actually caught 
 or attempted to catch the fish ; for the effect is the same in 
 each case, namely, to deprive the ownei' of the fishery of his 
 full enjoyment of it. 
 
 Owner 
 of ferry 
 must keep 
 sufficient 
 boats. 
 
 Art. 92. — Disturbance of Ferrie>^. 
 
 (1) A ferry is the exclusive right of carrying 
 passengers in boats across a river or arm of the 
 sea. It is a franchise which can only arise by 
 royal grant or by statute. A lost grant may, 
 however, be presumed from immemorial or even 
 long user (/v). 
 
 (2) A person commits a tort who disturbs a 
 legal ferry, either by refusing to pay a reasonable 
 toll, or by setting up a new ferry or passage to 
 the diminution of the custom of the legal ferry. 
 
 (1) Since the granting of ferries is a royal franchise and 
 is in derogation of the common law, it is incumbent on the 
 owner of a ferry to keep sufficient boats and men to carry 
 over the juiblic and their goods at all times, and to charge 
 no more than a reasonable toll for so doing. The demand, 
 therefore, of an unreasonable toll would justify the 
 passenger in refusing to pay. But it would seem that the 
 
 (J) Mayor of Carlisle v. Graham, L. R. 4 Ex. M\. 
 
 {g) Att.-G<ni. v. Emerson, supra : TiUnirt/ v. Silra, 4.") Cli. D. 9S. 
 
 (h) Barker v. Faulkener, 79 L. T. 2(). 
 
 (i) Fifzijern/d v. Firhank, [1897] 2 Ch. 9G. 
 
 (h) See Trottn' v. Harris, 2 Y. & J. 285.
 
 Nuisances to Incorporeal Hereditaments. 
 
 237 
 
 neglect to keep sufficient boats is no answer to an action Art. 92. 
 for disturbance of the ferry (/). 
 
 (2) A ferry is the connecting link between two highways what 
 or two towns, and the carrying of passengers in boats amounts to 
 belonging to other people to and from places so near these of^fenx"*^^ 
 highways or towns as to allow the passengers to rejoin 
 these highways almost immediately, will be a disturbance 
 of the ferry, and the persons so conveying over will be 
 committing a tort {in). On the other hand, the ferrying 
 over of persons to places near these highways or tow^ns will 
 not be construed as an interference with the ferry, provided 
 it is shown that it is not done fraudulently, or as a pretence 
 for avoiding the regular ferry («). The plea that the legal 
 ferry is not sufficient for the public convenience owing to the 
 altered condition of the neighbourhood will not avail (o). 
 
 There are several other kinds of disturbance of incorporeal Other 
 rights which it is impossible to treat of in an elementary disturbances, 
 work of this character, and for which the reader is referred 
 to larger works. 
 
 Art. 93. — Heinedy for N/i/sm/crs h/j 
 Abatement. 
 
 (1) The law gives a peculiar remedy for 
 nuisances by which a man may right himself 
 without legal proceedings. This remedy is called 
 abatement, and consists in the removal of the 
 nuisance. 
 
 (2) A nuisance may be abated by the party 
 aggrieved thereby, so that he commits no riot in 
 the doing of it, nor occasions any damage beyond 
 
 (/) J'tttr V. KiiKlul, 6 B. & C. 703. 
 
 {m) Blissett v. Hurt, Willes, .i08. 
 
 (n) Tripp v. Frank, 4 T. R. 60G. 
 
 (o) Newton v. Cuhitt, o C. B. (n.s. ) G27. 
 
 i
 
 238 Nuisance. 
 
 Art. 93. what the removal of the inconvenience neces- 
 sarily requires (jj). 
 
 (3) Where there are alternative ways of 
 abating a nuisance the less mischievous must be 
 chosen [q). 
 
 (4) A person cannot justify doing a wrong to 
 an innocent third party or to the public in 
 abating a nuisance. So it seems that entry on 
 the lands of an innocent third party cannot be 
 
 ■ justified (r). 
 
 j (5) If a nuisance can be abated without com- 
 
 j mitting a trespass no notice is required (.s). 
 
 (6) In order to abate a nuisance a man may 
 enter on the lands of the person committing the 
 ' nuisance, provided he has first given notice 
 requesting such person to remove the nuisance. 
 
 j (7) An entry on another's land to prevent an 
 
 1 • apprehended nuisance cannot be justified. 
 
 Notice. It must be observed that notice is necessary (1) when 
 
 abatement consists in pulhng down an inhabited house, 
 (2) before entry on the lands of another — even though that 
 other is the person committing the nuisance. It seems 
 also that notice is dispensed with even though lands are 
 entered to abate the nuisance in three cases, viz., (a) where 
 the owner of the land was the original wrongdoer, by placing 
 the nuisance there; (b) where the nuisance arises by default 
 in performance of some duty cast on him bylaw ; and (c) when 
 the nuisance is immediately dangerous to life or health [t). 
 
 [p) Stepheirs Commentaries, Bk. V., Chap. 1. It i.s generally veiy 
 inij)ru(lent to attempt tn abate a nnisaiice. It is far better to apply 
 for an injunction. 
 
 (q) Per Bl.vckiu'kx, J., in Roberts v. Ros(:, L. R. 1 Ex. at p. 89. 
 
 (r) Ihid. 
 
 (s) Lemmon v. Wf^hb, [1895] A. C. 1. 
 
 (t) .See Joiir.s V. Wil/iam.% 11 M. & ^^^ 17().
 
 Abatement of Nuisances. 239 
 
 (1) Thus, if my neighbour build a wail aud obstruct my Art. 93. 
 ancient lights, I may after notice and request to him to remove ~ 
 it, enter and pull it down (n) ; but where the plaintiff had 
 erected scafiblding in order to build, which building when 
 erected would have been a nuisance, and the defendant 
 entered and threw down the scaffolding, such entry was 
 
 held wholly unjustifiable (.i-). 
 
 (2) Branches of trees overhanging a man's land may be 
 cut to abate the nuisance without notice, provided this can 
 be done without committing a trespass {[/). 
 
 (3) A commoner may abate an encroachment on his 
 common by pulling down a house or a fence obstructing his 
 right {z) ; so also may one whose right of way is 
 obstructed {a) ; but he cannot abate a warren, however 
 great a nuisance, but must appeal to a court of justice (b). 
 
 (4) Before pulling down a house to abate a nuisance. Pulling down 
 notice and request to remove must be given if the liouse is j'^i'^bited 
 actually inhabited, although it may not be necessary to 
 
 commit a trespass in pulling it down (c). Whether where 
 a person has failed to obtain a mandatory injunction to 
 remove a nuisance he can himself abate it, seems to be a 
 moot point {d). 
 
 (5) A private individual may not, however, abate & jjublic Public 
 nuisance such as an obstruction on a highway unless it does '""**"^^- 
 him a particular injury ; and even then only so far as may 
 
 be necessary to enable him to exercise the right interfered 
 with, as, for instance, to pass along the highway (e). 
 
 {n) L: v. RoseweJl, "2 Salk. 459. 
 
 (x) Xorris V. Baker, 1 Roll. R. .393, fol. 15. 
 
 (y) Ltmmon v. Wehh, [1895] A. C. 1. 
 
 (;) JIaxon v. Otsar, 2 Mod. 66. 
 
 (a) Lane v. Capsey, [1891] 3 Ch. 411. 
 
 (h) Cooper v. Marshall, 1 Burr. 259. 
 
 {<:) Davie-s V. Williamx, 16 Q. B. 556 ; Lane v. Cap.^ey, [1891] 3 Ch. 
 411. 
 
 (d) 8ee jt*er Chitty, J. : Lane v. Capsey, sujjra. 
 
 (<?) Davies v. Petley, 15 Q. B. 276.
 
 240 Nuisance. 
 
 Art 94 
 
 ' ' Aet. 94. — Heniedij of Heversioners for 
 
 Nuisances. 
 
 Whenever any wrongful act is necessarily in- 
 jurious to the reversion to land, or has actually 
 been injurious to the reversionary interest, the 
 reversioner may sue the wrongdoer (/). 
 
 Illustrations. (1) Thus, opening a new door in a house may be an 
 injury to the reversion, even though the house is none the 
 worse for the alteration ; for the mere alteration of 
 property may be an injury (g). 
 
 (2) So, if a trespass be accompanied with an obvious 
 denial of title, as by a public notice, that would probably 
 be actionable (/;). 
 
 (3) So, the obstruction of an incorporeal right, as of w^ay, 
 air, light, water, etc., may be an injury to the reversion (i). 
 
 (4) But an action wull not lie for a trespass or nuisance 
 of a mere transient and temporary character (k). Thus, a 
 nuisance arising from noise or smoke will not support an 
 action by the reversioner (/). Some injury to the reversion 
 must always be proved, for the law will not assume it from 
 any acts of the defendant (m). 
 
 Art. 95. — Limitation. 
 
 Actions for injuries caused by nuisances must 
 be brought w^ithin the period of SDL..y ea rs next 
 after the cause~of action arose. "~^ 
 
 (/■) Bedivij field v. Oiis/on; 1 Sannd. .H22. 
 
 (g) Yoinuj v. Spencer, 10 B. & C. 145, 1.V2. 
 
 (h) Hee judgment, Dohson v. Blackmore, 9 Q. B. iH)l. 
 
 (i) Kid'/i/l V. Moor, 9 C. B. 364 ; Metropolitan Association v. Prtch, 
 27 L. J. C." P. 330 ; Greendade v. Hallidiuj, G Bing. 379. 
 
 [k) Bcu-tir V. Taylor, 4 B. & Ad. 72. 
 
 (I) MnmJ'ord v. 0. W. tt- IV. h'. Co., 2.5 L. .J. Ex. 20.") ; Simpson v. 
 Savage, 20 L. .T. C. P. 50. 
 
 (m) Kidi/ill V. Moor, supra.
 
 ( 241 ) 
 
 CHAPTEli IX. 
 
 OF TORTS FOUNDED ON THE DIRECT INFRINGE- 
 MENT OF PRIVATE RIGHTS. 
 
 In the case of most of tlie torts which we have hitherto introductory 
 considered, there was a wrongful act distinct from the 
 damage to the plaintilT, and which would, if it had not 
 been followed by damage, have given no right of action. 
 But in the torts about to be considered, the wrongful act 
 and the damage resulting from it are practically indivisible. 
 These are what are spoken of in many text books as 
 injuricB. They require no proof of damage resulting from 
 the wrongful act. The mere fact that a private right has 
 been infringed lolthout laivful excuse, constitutes of itself 
 both wrongful act and damage, and gives the party affronted 
 a right of action, even although his actual surroundings may 
 have been improved rather than depreciated. 
 
 These torts consist in (a) infringements of the right of 
 
 safety and freedom of the person (trespass to the person) ; 
 
 (b) infringements of rights of real_jiJjo-perty (trespass to land 
 
 land dispossession) ; and (c) infringements of rights to goods 
 
 ^'(trespass to goods and conversion). 
 
 SECTION L— TEESPASS TO THE PEESON. 
 
 Aet. 96. — General Liahiliii] for Trespass to 
 tJie Person. 
 
 (1) Trespass to the person may be by assault, 
 battery, or false imprisonment, 
 
 (2) Any person who commits a trespass 
 to the person whether by assault, battery, or
 
 242 Direct Infringement of Private Eights. 
 
 Art. 96. imprisonment without lawful authority commits 
 a tort. 
 
 Ancient The older writers speak of six kinds of trespasses to the 
 
 classification, pgj^-gon : threats, assault, battery, wounding, mayhem (or 
 
 maiming) and false imprisonment. But at the present time 
 
 lit is sufficient to distinguish the three groups above- 
 
 j\mentioned. 
 
 ,. ■ Prima facie every hostile interference with the person or 
 
 proof liberty of another is wrongful without proof of damage ; but 
 
 as we shall see, acts which &Ye jJi'imd facie trespasses may 
 often be justified. The burden of proof of justification 
 always lies on the defendant. The plaintiff need only prove 
 that without his consent the defendant committed an act 
 which would prirnd facie amount to a trespass to the 
 person, and it is for defendant to justify if he can. 
 
 Art. 97. — Definition of Assault. 
 
 An assault is an attempt or offer to do harm 
 to the person of another, which might have suc- 
 ceeded if persevered in, or would have succeeded 
 but for some accident. 
 
 Illustrations. (1) Thus, if one make an attempt, and have at the time 
 of making such attempt a present prima facie ability to do 
 harm to the person of another, although no harm be 
 actually done, it is nevertheless an assault. For example, 
 menacing with a stick a person within reach thereof, 
 although no blow be struck (a) ; or striking at a person 
 who wards off' the blow with his umbrella or walking-stick, 
 would constitute assaults. 
 
 (2) But a mere verbal threat is no assault ; nor is a 
 threat consisting not of words but gestures, unless there be 
 a present ability to carry it out. This was illustrated by 
 Pollock, C.B., in Cohhett v. Grey {h). "If," said the 
 learned judge, "you direct a weapon, or if you raise your 
 
 (a) Bmd v. Coker, 13 C. B. 8.50. {!>) 4 Exth. 744.
 
 Trespass to the Person. 243 
 
 fist within those limits which give you the means of striking, Art. 97. 
 that may be an assault ; but if you simply say, at such a 
 distance as that at which you cannot commit an assault (c), 
 ' I will commit an assault,' I think that is not an assault." 
 
 (3) To constitute an assault there must be an atteijipt. 
 Therefore, if a man says that he would hit another were it 
 not for something which withholds him, that is no assault, 
 as there is no apparent attempt {d). 
 
 (4) For the same reason, shaking a stick in sport at 
 another is not actionable {e). 
 
 Art. 98. — Definition of Battery. 
 
 (1) Battery consists in touching another's per- 
 son hostilely or against his will, however 
 slightly (/). - 
 
 (2) If the violence be so severe as to wound, 
 and a fortiori if the hurt amount to a mayhem 
 
 I (that is, a deprivation of a member serviceable 
 I for defence in fight), the damages will be greater 
 than those awarded for a mere battery ; but 
 • otherwise the same rules of law apply to these 
 (injuries as to ordinary batteries. 
 
 (1) This touching may be occasioned by a missile or any lUustrationf 
 instrument set in motion by the defendant, as by throwing 
 water over the plaintiff (^), or spitting in his face, or causing 
 another to be medically examined against his or her will {h). 
 In accordance with the rule, a battery must be involuntary : 
 therefore a beating voluntarily suffered is not actionable ; 
 for volenti non fit injuria {i). 
 
 (f) (jutry — Battery. 
 
 (d) Tuhervillt v. Saim/e, I ^lod. 3. 
 
 (e) Christ opherson v. Bare, 11 Q. B. 477. 
 (/) RawUng.i v. TiU, 3 M. & W. 28. 
 
 [g) Pur^ell v. Horn, 8 A. & E. 602. 
 (h) Latter v. Bradddl, 29 W. R. 239. 
 
 (() Chrktopherwnw Hart, 11 Q. B. 477.
 
 244 DiKECT Infringement of Private Eights. 
 
 Art. 98. (2) Merely touching a person in a friendly way in order 
 
 ~~ to engage his attention, is no battery {j). And an entirely 
 
 Touching. unintentional touching, which is the result of pure accident, 
 
 does not amount to trespass. Where one of a shooting 
 
 party fired at a pheasant and a shot from his gun glanced 
 
 off a tree and accidentally wounded the plaintiff, a carrier, 
 
 it was held that there was no trespass {k). But wherever 
 
 ' an injury to the person is the result of an act of direct force, 
 
 it amounts to trespass to the person if it is wrongful, either 
 
 as being wilful or as being the result of negligence (/), or 
 
 if it be done in the course of doing an unlawful act (m). 
 
 (3) Thus, where a tramway company was authorised by 
 statute to run a steam tramcar on a public road, the 
 statute must be taken to impose on the company a duty 
 to see that the cars and tramway, and all necessary 
 apparatus, are kept in proper condition for this purpose. 
 And this extends not merely to their own line, but also to 
 the lines of other companies over which they have running 
 powers. If they fail to do so, and the tramway be in an 
 improper condition, then, in running their cars on that 
 tramway, they are doing that which they are not authorised 
 to do by their Act. They are only authorised to be on the 
 highway at all by their Act : and as regards the public, 
 they can only justify using the tramway if they are doing 
 what the Act allows them to do. If, therefore (apart from 
 any question of negligence), a car runs on the defective 
 tramway, and injures a passer-by, the company will be 
 liable ; for it is a direct injury to the person done in the 
 course of doing an unlawful act, and without justification 
 or excuse {n). 
 
 (j) Coward v. Baddehy, 28 L. J. Ex. 261. 
 
 (k) Stanlty v. Pon-tU, [1891] 1 Q. B. 86. 
 
 (I) Per Bkamwkli., B., in Holmes v. Mather, L. R. 10 Ex. 261. 
 
 (m) Sadler v. South Staffordshire Tramways Co., 23 Q. B. D. 17. 
 
 («) Ihhl.
 
 Trespass to the Person. 245 
 
 Art. 99. 
 Art. 99. — Depinfion of False Imprisonment. 
 
 False imprisonment consists in the imposition 
 of a total restraint for some period, however 
 short, upon the liberty of another, without suffi- 
 cient legal authority (o). The restraint may be 
 either physical or by a mere show of authority. 
 
 Imprisonment does not imply iucavceration, but any Moral 
 restraint by force or show of authority. For instance, '^*'^'''^^"^t- 
 where a baihff tells a person that he has a writ against 
 him, and thereupon such person peaceably accompanies 
 him, that constitutes an imprisonment {p). But some total 
 restraint there must be, for a partial restraint of locomotion 
 in a particular direction (as by preventing the plaintiff from 
 exercising his right of way over a bridge) is no imprison- 
 ment ; for no restraint is thereby put upon his liberty (g). 
 
 ,JlJ hW. iTU, 
 
 Art. 100. — Justification of Trespass to the 
 Pei'son. 
 
 I A trespass to the person, whether amounting 
 ' td assault, battery, or false imprisonment, may 
 be justified by the defendant as being authorised 
 j by the exercise of a right at common law, or by 
 I statute, and if the defendant prove the facts 
 1 alleged in justification, the plaintiff must fail. 
 
 i\ Trespass to the person maybe justified as being (a) in .lustifi cation 
 \ I defence of property or person ; (b) as being in the exercise 
 Uof parental or other special authority ; (c) as being an arrest 
 jor imprisonment made by judicial authority ; (d) as being 
 
 (o) Bird V. Jones, 7 Q. B. 743. 
 ijj) GrauKjer v. Hill, 4 
 Ir. C. L. R. 417. 
 
 (7) Bird V. Joiiti<, fupra. 
 
 {j)) Grainijer v. Ilil/, 4 Ring. N. C. 212 ; see Harvey v. Muynt, 
 6 Ir. C. L. R. 417. a J ^
 
 246 
 
 Direct Infringement of Private Eights. 
 
 Art. 100. an arrest or imprisonment of a criminal ; (e) as being the 
 i re-arrest of a person who has escaped from lawful custody ; 
 or (f) as being made for the purpose of stopping a breach of 
 the peace. 
 
 But in every case the force used must not exceed that 
 which is reasonably required in the circumstances, and any 
 excess of violence amounts to a trespass. Thus a constable 
 ought not unnecessarily to liandcuff an unconvicted prisoner, 
 and if he do so he will be liable to an action (r). 
 
 Self-defence. (1) A battery is justifiable if committed in self-defence. 
 Such a plea is called a* plea of " son assault demesne. '[ 
 But, to support it, the battery so justified must have been 
 committed in actual defence, and not afterwards and in 
 mere retaliation (.s). Neither does every common battery 
 excuse a mayhem. As, if " A. strike B., B. camiot justify 
 drawing his sword, and cutting ofi^ A.'s hand," unless there 
 was a dangerous scuffle, and the mayhem was inflicted in 
 self-preservation (t). 
 
 Defence of ' (2) A battery committed in defence of real or personal 
 property. property is justifiable. Thus, if one forcibly enters my 
 house, I may forcibly eject him ; but if he enters quietly, 
 I must first request him to leave. If after that he still 
 refuses, I may use sufficient force to remove him, in resisting 
 which he will be guilty of an assault (u). On the other 
 hand, where a railway traveller lost his ticket and could 
 not produce it when required so to do in accordance with 
 an indorsed condition, and refused to pay over again, it 
 ■was held that this did not justify the company in forcibly 
 Rejecting him [x). 
 
 (3) So, a riotous customer may be removed from a shop after 
 a request to leave. For the same reason, where the violence 
 complained of consisted in the defendant attempting to take 
 away certain rabbits from the plaintiff, whicli did not belong 
 
 (r) (Irlfiiii V. Colman, 2S L. J. K\. l.>4. 
 
 (v) Cockroft V. Smith, 11 Mod. 43. 
 
 (0 Cook V. Be.al, Ld. Rayni. 177. 
 
 (ii) Whpjier V. Whitimj, 9 C. & P. '2&r^. 
 
 {x) Hntlcr V. Manchester, ttc. Rail. Co., 
 
 •1\ (I Ji. 1). -2(1
 
 Justification of Trespass to the Person. 2-47 
 
 to him but to the defendant's master, and which the plaintiff Art. 100. 
 
 had refused to give up, the defendant was held to hav^e a 
 
 good defence to an action of assault {y). 
 
 (■i) A father may moderately chastise his son, and this Parental 
 
 authority he may delegate to a schoolmaster. School- '"^^\ '^^^}^'^ 
 , , . .^ ^ . authority, 
 
 masters are no doubt justified ni moderately chastising and 
 
 in putting restraint on the liberty of their pupils {z) ; and a 
 
 master may chastise his apprentice (a). 
 
 (5) It was formerly thought that a husband had the right of xMarital 
 chastising and imprisoning his wife — but this can no longer authority, 
 be regarded as the law (b). 
 
 (6) Officers in the army and navy, and officers of volun- Naval and 
 teers have statutory authority by which they may justify n^ilitary 
 assaults and imprisonment of the men under them (c), 
 
 as also have masters of merchant ships over their crew and 
 passengers. 
 
 Art. 101. — Geuei'dl Autlioritij of Judicial Officers 
 to Imprison. 
 
 (1) No ciction lies against a judge of a superior 
 court in respect of any act clone by him in his 
 judicial capacity, even though he act oppres- 
 sively, maliciously, and corruptly ; nor against 
 any person acting by the authority of a judge 
 of a superior court in his judicial capacity. 
 
 (2) No judicial officer of an inferior court in- 
 vested with authority to imprison, is liable to an 
 action for a wrongful imprisonment, unless he 
 acts beyond his jurisdiction (r/). In order to 
 
 . (//) Bladts V. Hiijijs, 10 C. B. (n.s.) 713; affirmed, 11 H. L. Cas. 
 «-21. 
 
 {::) See Cleary v. Booth, L1893] 1 Q. B. 46.3. 
 
 (a) Peim v. Ward, 2 C. M. & R. 338. 
 
 (b) B. V. Jackmn, [1891] 1 Q. B. 671'. 
 
 (c) See Marks v. Froijlty, [1898] 1 Q. B. 888. 
 
 (d) DoHirtll V. Impty, 1 B. & C. 169.
 
 248 Direct Infringement of Private Eights. 
 
 Art. 101 constitute jurisdiction, such officer must have 
 before him some suit, complaint, or matter in 
 relation to which he has authority to imprison 
 or arrest. 
 
 (1) Where the judge of the Supreme Court of 
 Trinidad and Tobago caused the plaintiff to be imprisoned 
 in default of finding bail, and the jury found that he had 
 overstrained his judicial powers, and had acted in the 
 administration of justice oppressively and maliciously, and 
 to the prejudice of the plaintiff and the perversion of justice, 
 the Court of Appeal held that, nevertheless, no action lay (e). 
 
 (2) Similarly if a judge of a superior court acting in 
 his judicial capacity sentences or orders a person to be 
 imprisoned, no action for assault or false imprisonment lies, 
 however erroneous and corrupt the sentence or order may 
 have been. The reasons for this were stated in the 
 case of Scott X. Stansfield {/), which, though an action of 
 slander, will very well repay a careful perusal. Kelly, 
 C.B., there remarks, "It is essential in all courts that 
 the judges, who are appointed to administer the law, should 
 be permitted to administer it under the protection of the 
 law independently and freely, without favour and without 
 fear. This provision of the law is not for the protection 
 or benefit of a malicious or corrupt judge, but for the 
 benefit of the public, whose interest it is that the judges 
 should be at liberty to exercise their functions with in- 
 dependence and without fear of consequences. How could 
 a judge so exercise his office, if he were in daily and hourly 
 fear of an action being brought against him, and of having 
 the question submitted to a jury, w^hether a matter, on 
 which he has commented judicially, was or was not relevant 
 to the case before him ? Again, if a question arose as to 
 the bona fides of the judge, it would have, if the analogy 
 of similar cases is to be followed, to be submitted to the jury. 
 It is impossible to over-estimate the inconvenience of such 
 a result. For these reasons I am most strongly of opinioa 
 
 (e) Anderson v. Gorrie, [1895] 1 Q. B. 668. 
 (/) L. R. 3 Ex. 220.
 
 Justification of Trespass to the Person. 249 
 
 that no such action as this can, under any circumstances, Art. 101. 
 
 be maintainable." 
 
 (3) It will be noticed that though a judge of a superior 
 court is protected, provided the judge is acting in his judicial 
 capacity, in the case of a judge of an inferior court the 
 protection only extends to acts done by him ivithin his 
 jurisdictio)i. If he exceeds his jurisdiction, as by sentencing 
 a prisoner for an offence over which he has no jurisdiction, 
 or in a place where he has no jurisdiction, although he act 
 in his judicial capacity, he is not protected, and may be 
 sued for trespass, as also may gaolers, constables and others 
 carrying out the sentence. 
 
 iA.ET. 102. — Prima facie Jurisdiction sufficient to 
 excuse Judicial Officer of Inferior Court. 
 
 The judge of an inferior court, having o. prima 
 facie jurisdiction over a matter, is not respon- 
 sible for a false imprisonment committed on the 
 faith of such prima facie jurisdiction, if, by reason 
 of something of which he could have no means of 
 knowledge, he really has no jurisdiction {g). 
 
 (1) Thus, if, through an erroneous statement of facts, a 
 person be arrested under process of an inferior court, for 
 a cause of action not accruing within its jurisdiction, no 
 action lies against the judge or officer of the court, but 
 against the plaintiff only fli). 
 
 (2) Where an inferior court has jurisdiction of a matter 
 before it, but acts erroneously, the court itself, and the 
 officers executing its orders or warrants, will be protected 
 from any action at the suit of a person arrested. But 
 where it has no jurisdiction all these parties may be 
 liable (/). 
 
 (ij) Calder v. Halket, .3 Moo. P. C. C. 28. 
 
 (h) Olliett V. Beiiaey, 2 W. Jones, 214. 
 
 (0 Com. Dig., tit. County Court, 8; Honkhn v. Smith, 14 Q. B. 
 
 S41 ; Winyatey. Waite, 6 M. & W. 746. 
 
 R 2
 
 warrant. 
 
 250 Direct Infringement of Private Eights. 
 
 Art. 103. Art. 103. — Conviction vutst he set aside. 
 
 Where a magistrate acts in a matter without 
 any, or in excess of his, jurisdiction, a person 
 injured by any conviction or order issued by such 
 justice in such matter cannot maintain an action - 
 in respect thereof, until such conviction shall 
 have been quashed by the proper tribunal in 
 that behalf ; nor for anything done under a 
 warrant followed by a conviction or order, until 
 such conviction be quashed ; nor at all for any- 
 thing done under a warrant for an indictable 
 offence, if a summons had been previously served 
 and not obeyed (/,•). 
 
 Constables executing the warrants of justices issued 
 without jurisdiction are specially protected by 24 Geo. 2, 
 c. 44, ss. 6, 8, from any action, unless they have refused 
 for six days after written demand to produce the warrant. 
 
 Legal To constitute false imprisonment the defendant must 
 
 have acted without due legal authority. Thus, an action 
 lies against a governor of a gaol for receiving and detaining 
 a prisoner without a proper warrant (Z), or for detaining 
 him after his acquittal (7;i). But if a gaoler acts upon a 
 writ or order of a competent court having jurisdiction, 
 which is valid on the face of it, he is not liable if it 
 subsequently turns out that the order was wrong [n). But, 
 on the other hand, where the order shows on the face of 
 it that the prisoner was committed under a statute which 
 expressly casts on the gaoler the duty of releasing the 
 prisoner after a specified time unless the party on whose 
 motion the prisoner was committed brings the prisoner to 
 the bar of the court, then the gaoler will be liable unless he 
 so releases the prisoner (p). 
 
 {k) See 11 & 12 Vict. c. 44. 
 
 (I) Dormer v. Cook, 88 L. T. 629. 
 
 [m) Mee v. Cndckshank, 86 L. T. 708" 
 
 (n) Henderson v. Prtston, 21 Q. B. D. 362. 
 
 (o) Moone v. Rose, L. R. 4 Q. B. 486.
 
 Justification of Trespass to the Person. 251 
 
 Art. 104. 
 
 Art. 104. — Power to Imprison for Contempt 
 of Court. 
 
 The Court of Appeal and High Court have 
 jurisdiction to punish by commitment for any 
 . insult offered to them, and any libel upon them, 
 or any contemptuous or improper conduct com- 
 mitted by any person with respect to them ; but 
 inferior courts of record have power only to 
 commit for contempts committed in court. 
 
 (1) During the pendency of a suit in the High Court, 
 the publisher of a newspaper commits a contempt if he 
 publishes extracts from affidavits with comments upon 
 them (jj). 
 
 \ (2) Where an indictment has been removed into the 
 
 King's Bench Division, and a day appointed for trial, the 
 
 ; holding of public meetings, alleging that the defendant is 
 
 \ not guilty, and that there is a conspiracy against him, and 
 
 that he cannot have a fair trial, is a contempt of court {q). 
 
 (3) A solicitor is guilty of a contempt of court in writing, 
 for publication, letters tending to influence the result of 
 a suit (r). 
 
 I (4) It seems that a judge of a county court has a statutory 
 ' power only to commit for contempts committed before the 
 court and whilst it is sitting (s). 
 
 (5) A justice of the peace may commit one who calls him, 
 
 , in court, a liar [t). 
 1 
 
 ip) Tichhorne v. Mostyn, L. R. 7 Eq. 55 n. 
 
 (q) Ondow-A and Whalley'.'i Case, R. v. Castro, L. R. 9 Q. B. 219. 
 (r) Daw V. Eley, L. R. 7 Eq. 49. 
 
 (.*) See 51 & 52 Vict. c. 43, s. 152 ; R. v. Lefroi/, L. R. 8 Q. B. 134 ; 
 R. V. Brompton County Court Judge, [1893] 2 Q. B. 195. 
 (t) Rex y. Revel, \^iv&. A2A.
 
 252 Direct Infringement of Private Eights. 
 
 Art. 105. Art. 105. — Poiver of Magistrates to Imprison. 
 
 If a felony, or breach of the peace, be com- 
 mitted ill view of a justice, he may personally 
 arrest the offender or command a bystander to 
 do so, such command being a good warrant. 
 But, if he be not present, he must issue his 
 written warrant to apprehend the offender {u). 
 
 Art. 106. — Arrest by Constables (Oid Piivate V 
 Persons. I 
 
 (1) Any person may arrest another without a 
 warrant if a felony has in fact been committed, 
 and he has reasonable grounds for suspecting that 
 the person arrested has committed the felony. 
 
 (2) A constable may arrest any person with- 
 out a warrant if he has reasonable grounds for 
 thinking that a felony has been committed, and 
 that it has been committed by the person 
 arrested. 
 
 (3) For the sake of preserving the peace, any 
 person who sees it broken may without a warrant 
 arrest him whom he sees breaking it at the 
 moment of the affray or immediately after, so 
 long as there is a reasonable prospect of a 
 renewal of the affray (x). 
 
 (4) Where an arrest can only lawfully be made 
 by warrant, the person arresting must have it 
 with him at the time ready to be produced if 
 demanded (/y). 
 
 Felons. A treason or felony having been actually comviittcd, 
 
 ' a private person may arrest one reasonabb/, although 
 
 (m) 2 Hale, P. C. 86. 
 
 (x) Timothy v. Simpson, 1 Cr. M. & R. 7.57 ; A', v. J^iijht, 27 L. J. 
 M. C. 1. ■ 
 
 (y) GilUard v. Laxton, .31 L. .J. M. C. 12.3.
 
 Justification of Trespass to the Peeson. lioc 
 
 erroneously, suspected by him ; but the suspicion must not Art. 106. 
 be mere surmise {z). 
 
 In an action for false imprisonment, where the defen- 
 dant, in order to justify himself, must prove that a felony 
 was in fact committed, and where it appears that if 
 it were committed it could only have been committed by 
 the plaintiff, the fact that the latter has been tried for the 
 alleged felony and acquitted, does not estop the defendant 
 from giving evidence that'he did really commit it. For the 
 verdict in the crimiiial trial was res inter alios acta, and is 
 not binding on the defendant in a distinct proceeding {a). 
 
 As we have seen, a private person can only ai-rest a Cases of 
 suspected felon in cases where a felony has actually been ^"'^P'^^tsd 
 committed by sovie one ; and if it should turn out that no 
 such felony was ever committed, he will be liable, however 
 reasonable his suspicions may have been. It would, how- 
 ever, be obviously absurd to require a constable to satisfy 
 himself at his peril that a felony had been in fact committed 
 before acting ; and consequently the law provides that a 
 constable may make an arrest merely upon reasonable 
 suspicion that a felony has been committed, and that the 
 party arrested was the doer ; and even though it should 
 turn out eventually that no felony has been committed, he 
 will not be liable (h). The suspicion, however, must be a 
 reasonable one, or the constable will be liable. 
 
 (1) Thus, a person told the defendant, a constable, that a Illustrations, 
 year previously he had had his harness stolen, and that he 
 now saw it on the plaintiff's horse, and thereupon the 
 defendant went up to the plaintiff and asked him where he 
 got his harness from, and the plaintiff making answer that 
 he had bought it from a person unknown to him, the 
 constable took him into custody, although he had known 
 him to be a respectable householde)' for twenty years. It 
 was held that the constable had no reasonable cause for 
 
 (z) Beck-irith V. Phi/hy, 6 B. & C. 63.5. 
 
 (a) Cdhi/l Y. Fitzyibhoii, 16 Ir. L. R. .H71. 
 
 {Ii) illar-ih V. Loader, 14 C. B. (n.s.) .l.S.") ; drifjiii v. CnhiKiii, 
 
 •28 L. J. Ex. \:U.
 
 254 Direct Infringement of Private Eights. 
 
 Art. 106. suspecting the plaintiff, and was consequently liable for the 
 false imprisonment (c). But, on the other hand, where a 
 constable knows that a warrant is out against a man, that 
 is sufficient ground for his reasonably suspecting that a 
 felony has been committed (d). 
 
 (2) But where one man falsely charges another wdth having 
 committed a felony, and a constable, at and by his direction, 
 takes the other into custody, the party making the charge, 
 and not the constable, is liable (c). " It would be most 
 mischievous," Lord Mansfield remarks, " that the officer 
 should be bound first to try, and at his peril exercise his 
 judgment as to the truth of the charge. He that makes the 
 charge alone is answerable " (/). 
 
 (3) The right of arrest stated in paragraph 3 of Art. 106 is 
 only to prevent disturbances of the peace. It seems that all 
 persons taking part in the affray may be arrested — provided 
 there is a prospect of the affray being renewed — and may be 
 detained till the heat is over, and may then be delivered 
 to a constable to be taken before a magistrate. Thus, 
 when the plaintiff entered the defendant's shop and 
 exchanged blows with a shopman, the defendant was 
 justified in arresting him and handing him over to the 
 constable, on the ground that though the affray had not 
 been actually committed in his presence, yet the plaintiff 
 persisted in remaining on the premises in such circum- 
 stances as made it seem probable that he would renew the 
 disturbance unless he was taken into custody (g). In such 
 circumstances it seems that a constable is justified in taking 
 the disturber upon the information of one who has seen the 
 affray (even though he was not himself present) if there 
 is a prospect of its being renewed (g). There is some 
 authority for saying that a constable may arrest imme- 
 
 {c) Horjrj V. Ward, 27 L. J. Ex. 443. 
 
 {d) Creagh v. Gamble, 24 Ir. L. R. 458. 
 
 [e) Davis v. Iiu.ssef/, 5 Bing. 354. 
 
 (/) Griffin V. Coleman, 4 H. & N. 265. 
 
 ((/) Timothy v. Simpso)), 1 C'r. M. & R. T-'iT.
 
 Justification of Trespass to the Person. 255 
 
 diately aftev an affray even though there is no prospect of Art. 106. 
 the affray being renewed; but the proposition is opsn to 
 doubt (//). 
 
 Art. 107. — Arrest for Misdemeanor. 
 
 Xo person has at common law power to arrest 
 
 another for a misdemeanor without a warrant, 
 
 ; but by various statutes powers of arrest for mis- 
 
 i demeanor are given to constables and others to 
 
 arrest without a warrant. 
 
 The following list is not complete, but it con- 
 tains some examples of statutory powers of arrest 
 for misdemeanor : 
 
 (1) Any person may arrest and take before a justice one ^^.^^^^^^^^^ 
 ' found committing an indictable offence between 9 p.m. and 
 
 6 a.m. (i). 
 
 (2) The owner of property or his servant, or a constable, Malicious 
 \ J -Lii*- ^ L L J ,• -7 iniurers. 
 
 may arrest and take before a magistrate anyone foimd 
 committing malicious injury to such property (A-). 
 
 (3) Any person may arrest and take before a magistrate Vagrants. 
 one found committing an act of vagrancy (/). 
 
 N.B.— Such acts are soliciting alms by exposure of 
 wounds, indecent exposure, false pretences, fortune-telHng, 
 betting, gaming in the public streets, and many other acts, 
 for v.'hich I must refer to the fourth section of the Act. 
 
 (Ii) See the cases discussed in Clerk and Lindsell on Torts, 'ind cd., 
 p. 666. 
 
 (/) 14 & 15 Vict. c. 19, s. 11. 
 
 (/.•) U & 15 Vict. c. 19, s. 11 ; 24 & 2.5 Vict. c. 97. 
 
 (/) 5 ( Jeo. 4, c. 83.
 
 256 
 
 Of False Imprisonment. 
 
 Brawlers. 
 
 Art. 107. (4) A constable or churchwarden may apprehend, and 
 take before a magistrate, any person disturbing divine 
 service (m). 
 
 Other Acts. (5) Many Acts of ParHament give powers of arrest of 
 person committing offences and refusing to give their names 
 and addresses when requested. See, for instance, the 
 Eaihvays Clauses Consolidation Act, 1845, s. 154, and the 
 Motor Car Act, 1903. 
 
 Illustrations 
 
 Art. 108.— Institution of Criminal Proceedings 
 endangers Bight of Action. 
 
 Where any person unlawfully assaults or beats 
 another, two justices of the peace, upon com- 
 plaint of the party aggrieved, may hear and 
 determine such offence, and if they deem the 
 offence not to be proved, or find it to have been 
 justified, or so trifling as not to merit any punish- 
 ment, and shall accordingly dismiss the com- 
 plaint, they must forthwith make out a certificate 
 stating the fact of such dismissal, and deliver the 
 same to the party charged ; and if any person 
 shall have obtained such certificate, or liaving 
 been convicted sliall have suffered the punish nioit 
 inflicted., he shall be released from all further or 
 other proceedings, civil or criminal, for the same 
 cause {}i). 
 
 (1) A certificate can only be granted by magistrates 
 where there has been a hearing upon the merits. Where 
 the prosecutor, having obtained a summons, did not attend 
 to give evidence and the magistrates dismissed the sum- 
 mons, the magistrates had no jurisdiction to give a certificate 
 
 (m) 14 & 15 Vict. c. 19, s. 11. 
 
 {u) 24 & 25 Vict. c. 100, ss. 42—45.
 
 Effect of Taking Criminal Proceedings. "257 
 
 of dismissal (o). The fact that the accused has been ordered Art. 108. 
 by the magistrates to enter into recognizances to keep the 
 peace and to pay the recognizance fee, will not constitute a 
 bar to an action (j)). 
 
 (2) The granting a certificate by magistrates where the 
 complaint is dismissed, is not merely discretionary. Magis- 
 trates are bound, on proper application, to give the certifi- ■ 
 cate mentioned in the section {q) ; and, if they refuse to do 
 so, may be compelled by mandamus (r). 
 
 (3) The words "from all further or other proceedings 
 civil or criminal, for the same cause," include all proceedings 
 against the defendant arising out of the same assault, 
 whether taken by the prosecutor or by any other person (s) 
 consequentially aggrieved thereby (i^). 
 
 Art. 109. — Aiiiointt of Ddniages. 
 
 In assessing the damages for an assault, or 
 battery, or false imprisonment, the time when, 
 and the place in which, the trespass took place 
 should be taken into consideration. 
 
 Thus, an assault committed in a public place calls for 
 much higher damages than one committed where there are 
 few to witness it. "It is a greater insult," remarks 
 Bathurst, J., in Tnllidge v. Wade (u), "to be beaten 
 upon the Eoyal Exchange than in a private room." 
 
 (0) Rttd V. Nntt, -24 Q. B. V>. 6ti9. 
 
 {p) Hartley v. Hindmarsh, L. R. 1 C. P. 553. 
 
 (q) Hancock v. Somes, 28 L. J. M. C. 196. 
 
 (r) Costar v. Hetherington, 28 L. J. M. C. 198. 
 
 [s] E.g., the complainant's husband. 
 
 {() Masperaivd Wife v. Brown, 1 C. V. 1). 97. (") 3 Wils. 19.
 
 corpus 
 
 258 Direct Infringement of Private Eights. 
 
 Art. 110. Art. 110. — Limitation. 
 
 Every action of trespass to the person (assault, 
 battery, wounding, or false imprisonment) must 
 be brought within four years next after the cause 
 of action. 
 
 See also Art. 30, p. 84, for the protection afforded by the 
 Pubhc iVuthorities Protection Act, the effect of which is that 
 an action against a magistrate or constable for an assault or 
 false imprisonment committed in execution, or intended 
 execution, of his duty as such, must be brought within six 
 months. 
 Habeas In addition to the remedy by action, the law affords a 
 
 peculiar and unique summary relief to a person wrongfully 
 imprisoned, viz., the writ oijhabeas corpus ad subjiciendum. 
 This writ may be obtained by motion made to any 
 superior court, or to any judge w^hen those courts are not 
 sitting, by any of his Majesty's subjects. The party moving 
 must show probable cause that the person whose release he 
 desires is wrongfully detained. If the court or judge thinks 
 that there is reasonable ground for suspecting illegality, the 
 writ is ordered to issue, commanding the detainer to produce 
 the party detained in court on a specified day, when the 
 question is summarily determined. If the detainer can 
 justify the detention, the prisoner is remitted to his custody. 
 If not, he is discharged, and may then have his remedy by 
 , action {x). 
 
 SECTION II.— OF TEBSPASS TO LAND AND 
 DISPOSSESSION. 
 
 Sub-section 1. — Of Trespass Quare Clausum Fregit. 
 
 Art. 111. — Definition. 
 
 A Trespass quare dausuin fregit is a trespass 
 I committed in respect of another man's land, by 
 \entry on the same without lawful authority. 
 
 (.f) See 31 Car. 2, c. 2 ; and .")« (ieo. 8, c. 100.
 
 Of Teespass to Land and Dispossession. 259 
 
 It constitutes a tort without proof of actual Art. ill. 
 damage. 
 
 (1) Thus, driving nails into another's wall, or placing Illustrations, 
 objects against it, are trespasses {y) ; or fox hunting across 
 land against the will of the owner (s). 
 
 ' (2) So, it is a trespass to allow one's cattle to stray on to Trespass of 
 another's land, unless there is contributory misconduct on ^'^**^®- 
 his part, such as keeping in disrepair a hedge which he is 
 bound by prescription or otherwise to repair [a) ; or leaving 
 his door open to a highway (6). But if no such duty to 
 repair exists, the owner of cattle is liable for their trespasses 
 even upon uninclosed land (c), and for all naturally resulting 
 damage. And where the plaintiff's mare was injui-ed by the 
 defendant's horse biting and kicking her through the fence 
 separating plaintiff's and defendant's land, it was held that 
 this was a trespass for which the defendant was liable apart 
 from any question of negligence (d). 
 
 j (3) Where one has authority to use another's land for a Exceeding 
 j particular purpose, any user going beyond the authorised '^"thonty. 
 purpose is a#trespass. Thus, where the lord of a manor 
 1 entitled by custom to convey minerals gotten tvithin the 
 \manor along subterranean passages under the plaintiff's 
 laud, brought thereunder minerals from mines gotten outside 
 .the manor, it was held to be a trespass (c). 
 r (4) So, again, where a public highway runs across the 
 I lands of a landowner, the soil of which was vested in the 
 owner, a member of the public who uses the road not 
 merely in exercise of his right of way, but in order to 
 interrupt the landowner's sport, is guilty of trespass. For 
 he is using the site of the road for a purpose not covered by 
 his limited right of user (/); for the public only have a 
 
 (y) Luwre.nct v. Ohee, 1 Stark. 22; (Jrujory v. Piper, 9 B. & C. '>!H. 
 
 (s) Paul V, Smmnerhayes, 4 Q. B. D. 9. 
 
 («) Lee V. Biley, M L. J. C. P. 212. 
 
 (h) T'dlttt V. Ward, 10 Q. B. D. 17. 
 
 (f) Boyle V. Tamlyn, 6 B. & C. 337. 
 
 (d) E/li.'i V. Loftm Iron Co., L. R. 10 C. P. 10. 
 
 (e) Eardley v. Lord G'ranrille, 24 W. R. .528. 
 
 ,(/ ) JIarrUon v. Diikt of Rutland, [1893] 1 Q. B. 142.
 
 260 
 
 Direct Infringement of Private Eights. 
 
 Art. 111. 
 
 Exceptions. 
 
 Retaking 
 goods. 
 
 Cattle. 
 
 Distraining 
 for rent. 
 
 Reversioner 
 
 insjDecting 
 
 premises. 
 
 Escaping 
 danger. 
 
 Grantee of 
 easement. 
 
 Public 
 rights. 
 
 Libertim 
 tenemeiitum. 
 
 right to use a highway for passing and repassing and not 
 for loitering or depasturing cattle {g), or for watching the 
 training of horses on the adjoining lands (/i). 
 
 In the following cases a person has lawful authority to 
 enter upon another's land : 
 
 (1) If one takes another's goods on to his land, the latter 
 may enter and retake them (/). 
 
 (2) If cattle escape on to another's land through the non- 
 repair of a hedge which the latter is bound to repair, the 
 owner of the cattle may enter and drive them out [h). 
 
 (3) So a landlord may enter his tenant's house to distrain 
 for rent, or an officer to serve a legal process {I) ; but he may 
 
 I not break open the outer door of a house. 
 
 (4) A reversioner of lands may enter in order to see that 
 no waste is being committed. 
 
 (5) A trespass is justifiable if committed in order to escape 
 some pressing danger, or in defence of goods. 
 
 (6) And the grantee of an easement may enter upon the 
 servient tenement in order to do necessary repairs {m). 
 
 (7) Land may be entered under the authority of a 
 statute {n) ; or in exercise of a public right, as of a 
 hic^hway or the right to enter an inn, provided there is 
 accommodation (o). 
 
 (8) Lastly, land may be entered on the ground that it is 
 the defendant's. This latter, known as the plea of liberum 
 tenementum, is generally pleaded in order to try the title to 
 lands. 
 
 (g) Doravton v. Payne, 2 H. Bl. 527 ; and 2 Sm. L. C. 157. 
 
 (h) Hickman v. Makey, [1900] 1 Q. B. 752. 
 
 (i) Patrick V. Cohrick, 3 M. & W. 485. 
 
 (i) See Faldo v. Ridge, Yelv. 74. 
 
 (I) Keaue v. Peynolds, 2 E. & B. 748. 
 
 (m) Tay/or v. Whitehead, 2 Doug. 745. 
 
 (n) Beanr v. Mayor, etc. of Manchester, 20 L. J. Q. B. 311. 
 
 (o) Baii-sey v. Richardson, 3 E. & B. 144.
 
 Of Trespass to Land and Dispossession. 261 
 
 Art. 112. 
 Art. 112. — Trespamers ab initio. ^— 
 
 ) (1) Whenever a person has authority given 
 
 j hiin by ,la\y to enter upon lands or tenements 
 
 ; for any purpose, and he goes beyond or abuses 
 
 such authority by doing that which he has no 
 
 right to do, then, althougli the entry was lawful, 
 
 he will be considered as a trespasser aJ) initio. 
 
 I (2) But where authority is not given by the 
 law, l)ut by the party, and abused, then the per- 
 son abusing such authority is not a trespasser 
 ah iiiitio. 
 
 (3) The abuse necessary to render a person a 
 trespasser ah initio must be a misfeasance and 
 not a mere nonfeasance {j>). 
 
 Thus, six carpenters entered an inn and were served Illustration, 
 with wine, for which they paid. Being afterwards at their 
 request supphed with more wine, they refused to pay for 
 it, and upon this it was sought to render them trespassers 
 ah initio, but without success ; for although they had autho- 
 rity by law to enter (it being a public inn), yet the mere 
 non-payment, being a nonfeasance and not a misfeasance, 
 was not sufficient to render them trespassers [p). 
 
 Art. 113. — Possession necessary to enahle tJie 
 Plaintiff to maintain an Action of Trespass. 
 
 (1) In order to maintain an action of trespass, 
 the plaintiff must be in the possession of the 
 land ; for it is an injury to possession rather 
 than to title. A mere interesse termini is not 
 sufficient (q). 
 
 " {p) Six Carptnttrn'' Ca.se, 1 Sm. L. C. 132. 
 iq) Wallls V. HamU, [189.3] 2 Ch. 75.
 
 •262 
 
 Direct Ixfrixgement of Private Eights. 
 
 Art. 113. 
 
 Illustrations. 
 
 Possession 
 i-elates back 
 to the right. 
 
 Surface and 
 subsoil in 
 different 
 
 Highways, 
 etc. 
 
 (2) The possession of land suffices to maintain 
 an action of trespass against any person ivrong- 
 fullij entering upon it ; and if two persons are m 
 possession of land, each asserting his right to it, 
 then the person who has the title to it is to be 
 considered in actual possession, and the other 
 person is a mere trespasser (;■). 
 
 (3) Where a person is in possession of land, 
 the onus lies upon the prima facie trespasser to 
 show that he is entitled to enter (.s-). 
 
 (1) Thus a person entitled to the possession of hinds or 
 houses cannot bring an action of trespass against a 
 trespasser until he is in actual possession of them {t). But 
 when he has once entered, he acquires the actual possession, 
 and such possession then dates back to the time of the 
 legal commencement of his right of entry, and he may 
 therefore maintain actions against intermediate and then 
 present trespassers {u). 
 
 (2) "Where one parts with the right to the surface of land, 
 retaining only the mines, he cannot maintain an action for 
 trespass to the surface, because he is not in possession 
 of it {x) ; but he may for a trespass to the subsoil, as by 
 digging holes, etc. (y). So the owner of the surface cannot 
 
 jmaintain trespass for a subterranean encroachment on the 
 minerals (z), unless the surface is disturbed thereby. 
 
 (3) So, when one dedicates a highway to the public, or 
 I grants any other easement on land, possession of the soil is 
 ■ not thereby parted with, but only a right of way or other 
 
 privilege given (a). An action for trespasses committed 
 
 (r) Jonenx. Chapman, 2 Ex. 821. 
 
 (.v) A-sherx. Whitlock, L. R. I Q. B. 1. 
 
 (t) Ryan v. Clark, 14 Q. B. 6o. 
 
 (ii) Anderson v. Raddifft, 29 L. J. Q. B. 128; Butcher v. Butcher, 
 7 B. & C. 402. 
 
 (x) Cox V. Moiiseley, 5 C. B. 533. 
 
 (y) Cox V. Glue, 17 L. J. C. P. 162. 
 
 (:) Keyse v. Powell, 22 L. J. Q. B. 305. 
 
 («) Goodtith V. Alker, 1 Burr. 133; Northampton v. Ward, 1 Wils. 
 114.
 
 Of Trespass to Land and Dispossession. 2G3 
 
 upon it, as, for instance, by throwing stones on to it, or Art. 113. 
 erecting a bridge over it, may therefore be maintained by 
 the owner of the soil (b). 
 
 Art. 114. — Tre^pdn^e!^ by Joint OionersJ} 
 
 Joint tenants, or tenants in common, can only 
 sue one another in trespass for acts done by one 
 inconsistent with the rights of the other (e). 
 
 (1) Among such acts may be mentioned the destruction Ordinary 
 of buildings {d), carrying off of soil (c), and expelling the ^°^" 
 plaintiiif from his occupation (/). 
 
 (2) But a tenant in common of a coal mine may get the Co-owners 
 coal, or licence another to get it, not appropriating to him- *^ """^s. 
 self more than his share of the proceeds ; for a coal mine is 
 useless unless worked {g). 
 
 (3) There is also one other important case of trespass Party walls, 
 between joint owners, viz., that arising out of a party-wall. 
 
 If one owner of the wall excludes the other owner entirely 
 from his occupation of it (as, for instance, by destroying it, 
 or building upon it), he thereby commits a trespass ; but if 
 he pulls it down for the purpose of rebuilding it, he does 
 not (/i). 
 
 Art. 115. — Coiitiituuif/ Trespasses. 
 
 Where a trespass is permanent and continuing, 
 the plaintiff may brmg his action as for a (con- 
 tinuing trespass, and claim damages for the 
 
 (/;) Ertrij V. Smith, 26 L. J. Ex. 84.") ; and seo illustration 4, p. 259, 
 nKpra. 
 
 (f) See Jacoltf: v. Scirurd, L. R. o H. L. 404. 
 
 id) Cres.stvea v. Hedges, 31 L. J. Ex. 497. 
 
 (e) WUkiniiO)i v. Hayyarth, 12 Q. B. 837. 
 
 (/) Murray v. Ha//, 7 C. B. 441. 
 
 (y) Job V. Potton, L. R. 20 Eq. 84. 
 
 (h) Sh'dman v. Smith, 26 L. J. Q. B. 314 ; Cnhitt v. Porttr, 8 B. & C. 
 257.
 
 264 Direct Infringement of Private Eights. 
 
 Art. 115. coutinuation ; and where after one action the 
 "" trespass is still continued, other actions may 
 
 be brought until the trespass ceases (/). See 
 Art. 32.' 
 
 Art. 116. — -Liiiiifation. 
 
 All actions for trespass to land must be com- 
 menced within six years next after the cause of 
 action arose {j). 
 
 Distress I^ is convenient to mention here a peculiar remedy of 
 
 damage landowners for trespasses committed by cattle, viz., by 
 
 seizing the animals whilst trespassing, and detaining them 
 until reasonable compensation is made {k), not only for 
 damage done to the land, but also for damage (if any) done 
 to animals of the owner of the land (/). This is not, how- 
 ever, available where animals are being actually tended ; in 
 such case the person injured must bring his action. A 
 somewhat analogous remedy is allowed in the case of 
 animals fera natura reared by a particular person. In 
 such cases the law, not recognising any property in them, 
 does not make their owner liable for their trespasses, but any 
 person injured may shoot or capture them while trespassing. 
 j Thus, at common law, I may kill pigeons coming upon my 
 land, but I cannot sue the breeder of them {m). 
 
 (i) Bou-ijer v. Cook, 4 C. B. 236. 
 
 (j) 21 Jac. 1, c. 16, s. 3. 
 
 (k) See Green v. Duckett, 11 Q. B. D. 275. 
 
 (I) Boden v. Roscoe, [1894] 1 Q. B. 608. 
 
 (m) Hannam v. MockM, 2 B. & C. 939, ;«>• Baylkv, ,T. But the 
 killing may amount to a criminal offence liy s. 23 of the Larceny Act, 
 1861 (24 &' 2.-) Vict. c. 96).
 
 Of Trespass to Land and Dispossession. 265 
 
 Sub-section 2. — Of Dispossession. J 
 
 Art. 117. — Definitiou. 
 
 Dispossession or ouster consists of wrongfully 
 withholding the possession of land from the 
 rightful owner. 
 
 "Before the Judicature Act, 1873, the remedy for this Specific- 
 wrong was by an action of ejectment, and since that statute ^®""® ^' 
 it is by an action for the recovery of land wherein the 
 plaintiff" claims possession of the land. 
 
 Art. 118.— 0^/«-s- of Proof of Title. 
 
 The law presumes possession to be rightful, , 
 
 and therefore the claimant must recover on the \ 
 
 strength of his own title, and not on the weak- 
 ness of the defendant's (;/). 
 
 (1) Thus, mere possession is prima facie evidence of title Possession 
 
 , * prima Jacie 
 
 until the claimant makes out a better one (o). evidence 
 
 (2) But where the claimant makes out a better title than ^.,, 1 
 ^ ' Title of 
 
 the defendant, he may recover the lands, although such title successful 
 
 may not be indefeasible. Thus, where one inclosed waste claimant 
 
 •^ need not be 
 
 land, and died without having had twenty years' possession, indefeasible. 
 
 the heir of his devisee was held entitled to recover it 
 
 against a person who had entered upon it without any 
 
 title {p). 
 
 (3) Conversely, a man in possession who may not have Jus tertii. 
 an indefeasible title as against a third party, may yet have 
 
 a better title than the actual claimant, and therefore he may 
 set up the right of a third person to the lands, in order to 
 disprove that of the claimant (g). But the claimant cannot 
 
 (n) Martin v. Strachan, 5 T. R. 107. 
 
 (o) Smith V. Webber, 1 A. & E. 119. 
 
 [p) Asher v. Whitlock, L. R. 1 Q. B. 1. 
 
 (q) Doe d. Carter v. Barnard, 13 Q. B. 945.
 
 266 
 
 Direct Infeingement of Private Eights. 
 
 Art. 118. 
 
 Exceptions. 
 
 Landlord 
 and tenant. 
 
 Servants and 
 licensees. 
 
 do the same, for possession is, in general, a good title against 
 all but the true owner (r). 
 
 (1) Where the relation of landlord and tenant exists 
 between the claimant and defendant, the landlord need not 
 prove his title, but only the expiration of the tenancy ; for a 
 tenant cannot in general dispute his landlord's title (s), 
 unless a defect in the title appears on the lease itself (^). 
 But nevertheless he may show that his landlord's title has 
 expired, by assignment, conveyance, or otherwise (»). The 
 principle does not extend to the title of the party through 
 whom the defendant claims prior to the demise or con- 
 veyance to him. Thus, where the claimant claims under a 
 grant from A. in 1818, and the defendant under a grant 
 from A. in 1824, the latter may show that A. had no legal 
 estate to grant in 1818 (x). 
 
 (2) The same principle is applicable to a licensee or 
 servant, who is estopped from disputing the title of the 
 person who licensed him (?/). 
 
 Art. 119. — Character of CJaimanfs Estate. 
 
 The claimant's title may be either legal or 
 equitable (semhle), provided that he is thereby 
 better entitled to the possession than the defen- 
 dant. 
 
 Before the Judicature Act, 1873 (36 & 37 Vict. c. 66), 
 it was a well-estabhshed rule that a plaintiff in ejectment 
 must have the legal estate (.2). It is submitted, however, 
 
 (r) Afiherw Whit/ock; supra; Richards v. Jenkins, 17 Q. B. D. .')44:. 
 
 (s) Drlancy v. Fox, 26 L. J. C. P. "248. 
 
 [t) Saimrhr.s v. Merryiveather, 3r> L. J. Ex. 115 ; Dot d. Kniijht v. 
 Smyth, 4 M. & S. .347. 
 
 (u) Doe d. Marriott v. Edward x, o B. & Ad. lOH,") ; Walton v. Water- 
 house, 1 Wms. .Saund. 418. 
 
 {x) Doe d. Olirer v. Powell, I A. & E. 531. 
 
 ()/) Doe d. Johnson v. Baytup, 3 A. & E. 188; Tiinur v. Doe, 
 9 M. & W. 645. 
 
 (z) Doe d. North v. Wthher, 5 Scott, 189.
 
 Of Trespass to Land and Dispossession. 267 
 
 hat as all branches of the High Court now take cognizance Art. 119. 
 of equitable rights, an equitable estate will be sufficient (a). 
 
 Akt. 120. — Limitation. 
 
 Xo person can bring an action for the recovery 
 of land or rent butjyyithin twelve years after the 
 right to maintain such action shall have accrued 
 to the claimant, or to the person through whom 
 he claims (h). 
 
 I (1) Where claimants are under disability, by reason of Exceptions, 
 infancy, coverture, or unsound mind, they must bring their l>isability. 
 action within six years after such disability has ceased : 
 provided that no action shall be brought after thirty years 
 from the accrual of the right (c). 
 
 (2) When any person in possession of lands or rents gives Acknow- 
 to the person, or the agent of the person entitled to such title, 
 lands or rents, an acknowledgment in writing, and signed, 
 
 of the latter's title, then the right of such last-mentioned 
 person accrues at, and not before, the date at which such 
 acknowledgment was made, and the statute begins to run 
 as from that date {d). 
 
 (3) The period in the case of ecclesiastical and eleemosy- Ecclesiastical 
 \ I i- J corporations. 
 
 f"**^ nary corporations is sixty years (e). 
 
 (a) See and consider principles of Walsh v. Lonsdale, 21 Ch. D. 9. 
 
 (b) 37 & 38 Vict. c. 57, s. 1 ; 3 & 4 Will. 4, c. 27, s. 2 ; Brassington v. 
 Llemllyn, 27 L. J. Ex. 297. The owner of the legal estate must, 
 however, be a party to the action (Allen v. Woods, 68 L. T. 143). 
 
 (r) 37 & 38 Vict. c. 57, ss. 3—5 ; 3 & 4 Will. 4, c. 27, ss. 16, 17. 
 (r/) Ley v. Peter, 27 L. J. Ex. 239. 
 {f) 3 & 4 Will. 4, c. 27, s. 29.
 
 268 
 
 Direct Infringement of Private Eights. 
 
 Art. 121. 
 
 Discontinu- 
 ance. 
 
 Continual 
 assertion of 
 claim. 
 
 Art. 121. — Commencement of Period of 
 Limitation. 
 
 The right to maintain ejectment accrues, 
 (a) in the case of an estate in possession, at the 
 time of dispossession, or discontinuance of pos- 
 session, of the profits or rent of lands, or of the 
 death of the last rightful owner (/) ; and, (b) in 
 respect of an estate in reversion or remainder or 
 other future estate or interest, at the determina- 
 tion of the particular estate. But a reversioner 
 or remainderman must bring his action within 
 twelve years from the time when the owner of 
 the particular estate was dispossessed, or within 
 six years from the time w^hen he himself becomes 
 entitled to the possession, whichever of these 
 periods may be the longest {g). 
 
 (1) Discontinuance does not mean mere abandonment, 
 but rather an abandonment by one followed by actual 
 possession by another (/;). Therefore, in the case of mines, 
 where they do not belong to the surface owner, the period 
 cannot commence to run until someone actually works 
 them; and even then it only commences to run qua the 
 vein actually worked (i). 
 
 (2) No defendant is deemed to have been in possession of 
 land merely from the fact of having entered upon it ; and, 
 on the other hand, a continual assertion of claim preserves 
 no right of action {j). Therefore, a man must actually 
 bring his action within the time limited ; for mere assertion 
 of his title will not preserve his right of action after adverse 
 possession for the statutory period. As to what acts con- 
 stitute dispossession, see Littlcdale v. Liverpool College (k). 
 
 (/) 3 & 4 Will. 4, c. 27, s. 3. (;/) 37 & 38 Viet. c. 57, s. 2. 
 
 (A) See Smith v. Lloyd, 23 L. .1. Ex. 194 ; Cannon v. Rinunqfon, 
 12 C. B. 1. 
 
 (i) See Loir Moor Co. v. Stanlnj Co., 34 L. T. (n.s.) ISO, 187 ; 
 Ashton V. Stork, 6 Cli. D. 726. 
 
 (j) 3 & 4 Will. 4, c. 27, ss. 10, 11. 
 k) [1900] 1 Ch. 19.
 
 Of Trespass to and Conversion oe Chattels. 'iOU 
 
 \ Art 122 
 
 ' SECTION III.— OF TRESPASS TO AND CON- ' _1_ 
 
 \H 
 
 VERSION OF CHATTELS. 
 Art. V22.— General liule. 
 
 Every direct forcible injury, or act, disturbing 
 the possession of goods without the owner's con- 
 sent, however sHght or temporary the act may 
 be, is a trespass. And if the trespass amount to 
 a deprivation of possession to such an extent as 1 
 to be inconsistent with the rights of the owner 
 (as -by taking, using, or destroying goods), it 
 then becomes a wrongful conversion. 
 
 ' (1) If one draws wine out of a cask and fills up the Destroying 
 
 1 1 1 1 TT goods. 
 
 deficiency with water, he converts the whole cask. ±ie 
 converts the wine he draws out by taking it, and the 
 remainder by turning it into something different, and so 
 destroying it (/). 
 
 ■ (2) So, again, if a sheriff sells more goods than are Excessive 
 reasonably sufficient to satisfy a writ of fieri facias, he will ^^'^^^ ^°"' 
 be liable for a conversion of those in excess (»t). 
 
 (3) Beating the plaintifi"s dogs is a trespass (w). And I»ij|™g 
 although wild animals are not generally the subject of 
 property while unconfined, yet if A. starts a hare on the 
 land of B., and kills it there, it is a trespass. For so long 
 as the hare is on B.'s land it is his property (o). On similar 
 grounds, rabbits, bred in a warren, are the property of the 
 breeder so long as they stay on his land, and no longer (jj). 
 
 (4) The innocence of the trespasser's intentions is im- Inteiitioii I 
 material. Thus, where the sister-in-law of A., immediately """^^t^"a . \ 
 after his death, removed some of his jewellery from a drawer 
 in the room in which he had died to a cupboard in another 
 room, in order to insure its safety, and the jewellery was 
 
 (0 RidKtrdxon v. Atkitimn, 1 Stra. .")7t5. 
 
 [m) Aklnd v. Con.-itahh, 6 Q. B. 381. 
 
 (;/) Diiid V. Sexton, 3 T. R. 87. 
 
 (o) SitffoH V. Moody, 1 Ld. Raym. -ioO. ' 
 
 (p) JladfMen v. (Iri/xsel, Cro. Jac. 195.
 
 270 
 
 DiEECT Infringement of Private Eights. 
 
 Art. 122. 
 
 Conversion 
 by innocent 
 purchaser. 
 
 subsequently stolen, it was held that the sister-in-law had 
 been guilty of a trespass, in the absence of yroof that her inter- 
 ference was reasonably necessary, and she was consequently 
 held liable for the 1088(2). But, on the other hand, the 
 finder of a lost chattel does not commit a tort by merely 
 warehousing or otherwise safeguarding it for a reasonable 
 time until the true owner be discovered, so long as he is not 
 unnecessarily officious (r). 
 
 (5) Again, where the owner of household furniture 
 assigned it by bill of sale to the plaintiff, and subsequently 
 employed the defendants (who were auctioneers) to sell it 
 for her by auction, and they sold and delivered j^ossesston of 
 it to the purchaser from them, they were held liable, 
 although they knew nothing of the bill of sale (s). It is 
 important, however, to note that the tort there was the 
 delivering of the furniture to the purchaser, and not the 
 mere selling of it (t). 
 
 (6) So the purchaser of a chattel takes it, as a general 
 rule, subject to what may turn out to be defects in the 
 title (u). Thus, in the leading case of HoUliis v. Fowler (x), 
 it was laid down that any person who, however innocently, 
 obtains possession of the goods of a person who has been 
 fraudulently deprived of them, and disposes of them, whether 
 for his own benefit or that of any other person, is guilty of 
 a conversion. 
 
 (7) Where, however, the true owner has parted with a 
 chattel to A. upon an actual contract, though there may be 
 circumstances which enable that owner to set the contract 
 aside for fraud, yet a bond fide purchaser from A. will 
 
 (17) Kiik V. Grcijori/, 1 Ex. D. 55. 
 
 (r) Heeper Blackburn, J., in HoUinsv. Foioler, L.R. 7 H.L. at j). 766. 
 
 (s) Con-Holidatbd Co. v. Curtis tt- Son, [1S92] 1 Q. B. 495. 
 
 (t) Sec Lancashire Waggon Co. v. Fitzhngh, 6 H. & N. 502 ; and 
 per BjiKTT, .!., in Foiiier v. HoUin-i, L. R. 7 Q. B. at p. (527. 
 
 (u) vSale of (4oods Act, 1893, s. 21, unless it be a negotiable seeiirit}- 
 (as to which see (>/y>i, Millx d: Co. v. Eu^t avd West liidia Dock Co., 
 7 Ai)p. Cas. 591, and Sale of Coods Act, 1893, s. 25(2) ) ; or unless he 
 buy it in market overt (Sale of (ioods Act, 1893, s. 22), and not even 
 then if it was stolen and the thief had been prosecuted to conviction 
 [ihid. s. 24). 
 
 (.r) L. R. 7 H. L. 757.
 
 Oi' Trespass to and Conversion op Chattels. 271 
 
 obtain an indefeasible title (^). The question will be, Was Art. 122. 
 
 there a contract between the real owner and A ? {z). Thus, -, P 
 
 L. was a manufacturer in Ireland : Alfred Blenkarn, w^ho ^^o^>^ ely vJmn 
 
 occupied a room in a house looking into Wood Street, ^ 
 
 Cheapside, wrote to L., proposing a considerable purchase ■di?^/ 
 
 of L.'s goods, and in his letters used this address, "37, / « 
 
 Wood Street, Cheapside," and signed the letters (without 
 
 any initial for a Christian name) with a name so written 
 
 that it appeared to be " Blenkiron & Co." There was a 
 
 respectable firm of that name carrying _Qn , bi^siness . in 
 
 Wood Street. The goods were sent there/ancl the cofre-- 
 
 spondence was all addressed to Blenkiron tt Co., 37, Wood, 
 
 Street, and Blenkarn disposed of the goods to the defendant. / 
 
 a bond fide purchaser : — Held, that no contract was ever 
 
 made with Blenkarn, and that even a temporary property 
 
 never passed to him, so that he never obtained such a 
 
 temporary property which he could pass to the defendant (a). 
 
 (8) To this rule, however, there is an exception, that Sale in / 
 
 a sale of goods in market overt gives a good title to the ">ai'ket overt. / 
 purchaser, although the seller has no title. So a purchaser 
 in market overt cannot be sued in an action for conversion 
 if he parts with the goods or refuses to give them up on 
 demand. But this rule only protects the purchaser, and 
 the seller in open market is guilty of conversion by selling 
 and delivering goods to which he has no title {b). The sale 
 must be an open sale in a lawfully constituted market, and 
 made according to the usages of the market. By special 
 custom all shops in the city of London are market overt 
 between sunrise and sunset for the sale of goods of the 
 kind which by the trade of the owner are there put for sale 
 by him. But the sale must be bij the shopkeeper not to 
 him, and it must take place in the open part of the shop, 
 not in a room at the back (c). 
 
 (ij) Sale of (loods Act, 1893, s. 23. 
 
 {z) Gundy v. Lindmy, 3 App. Cas. -ir)!). 
 
 (a) Cundy v. Lindmy, mipra ; and see also JJo/lhi.s v. Fowler, L. R. 
 7 H. L. 757 ; Farqiiharson Brothers v. Kimj cb Co., [1902] A. C. 325. 
 
 (h) Peer v. Humphrey, 2 A. & E. 495; Ganltij v. Ledicidye, 
 Ulr. L. R. 31. ^ 
 
 (<■) flargreare v. Spiid; [1892J 1 Q. B. 25.
 
 272 DiEECT Infringement of Private Eights. 
 
 a 
 
 Art. 122. Of this common law exception there is, however 
 
 modification by statute, first enacted by 21 Hen. 8, c. 11, 
 
 Revesting on ^^^ ^^^^^ contained in s. 24 of the Sale of Goods Act, 1893, 
 
 prosGCi.it ion 
 
 of thief. viz., that where goods are stolen and the thief is prosecuted 
 
 to conviction, the property revests in the original owner, 
 
 notwithstanding a sale in market overt. But note that 
 
 this rule only applies to goods stolen, not to goods obtained 
 
 by fraud or false pretences. If goods are obtained by fraud 
 
 or false pretences a sale in market overt vests the property 
 
 in the purchaser, and it does not revest in the original 
 
 owner on the conviction of the thief. Note, too, that until 
 
 the conviction of the thief the property is in the person 
 
 who has acquired it by sale in market overt, and no act of 
 
 his before the conviction of the thief is a conversion. So, 
 
 where the plaintiff's sheep were stolen and sold in open 
 
 market to the defendant, and the defendant then resold 
 
 ^^ \ and delivered them to another, and subsequently the thief 
 
 ri*)^ was prosecuted and convicted, though the property then 
 
 k'' revested in the plaintiff he had no remedy against the 
 
 ' defendant. For when the defendant sold the sheep they 
 
 were his, not having then revested in the plaintiff' (d). 
 
 Ju.stification. (1) It is a good justification that the trespass was the 
 Plaintifi's ^,gg^^i^ Qf l-l-^g plaintiff's own negligent or wrongful act. Thus, 
 if he place his horse and cart so as to obstruct my right of 
 way, I may remove it, and use, if necessary, force for that 
 purpose (e). So, if his goods or cattle trespassing on my 
 land get injured, he has no remedy (/) ; unless I use an 
 xmreasonable amount of force, as, for instance, by chasing 
 trespassing sheep with a mastiff dog ((7). So, if a man 
 wrongfully takes my garment and embroiders it with gold, 
 I may retake it; and "if J. T. have a heap of corn, and 
 J. D. will intermingle his corn with the corn of J. T., the 
 latter shall have all the corn, because this was done by 
 J. D. of his own wrong" (//). And likewise, if one takes 
 
 {(I) Iforirooil V. Kmith, '2 T. R. 7.')V». 
 
 (e) HIatir v. Simiiii, 2 Stra. 892. 
 
 (/) Farmer v. I/uiil, Brownl. 220. 
 
 ((/) Kiiiij V. /I'ove, 1 Freem. 347. 
 
 (h) CoKK, C..T., in Ward v. Eijr,, 2 ]iiilst. .S2:i
 
 Of Trespass to and Conversion of Chattels. 273 
 
 ' away my carriage, and has it painted anew without uiy Art. 122. 
 
 I authority, I am entitled to have the carriage without paying 
 for the painting (i). 
 
 2. A trespass committed in self-defence, or defence of Self-defence 
 property, is justifiable. Thus, a dog chasing sheep or deer p'-oyerty. 
 in a park, or rahbits in a warren, may be shot by the owner 
 of the property in order to save them, but not otherwise {k). 
 But a man cannot justify shooting a dog, on the ground 
 that it was chasing animals ferce naturce (l), unless it was 
 chasing game i^n a preserve, in which case it seems that it 
 may be shot in order to preserve the game, but not after 
 
 < the game are out of danger {m). 
 
 (3) x\ trespass committed in exercise of a man's own rights, In exercise 
 is justifiable. Thus, seizing goods of another, under a " "^ *"^ 
 lawful distress for rent or damage feasant, is lawful. 
 
 (4) Due process of law is a good justification, as, for Legal autho- 
 example, an execution under a writ o( fieri facias. ^^ •*' 
 
 (5) So where goods are pledged, no action of conversion Pledge, 
 will lie against the pledgee for their detention or for part- 
 ing with them, until tender of the debt has been made and 
 refused («). 
 
 Art. 123. — Possession necessaiij to Diaiiitain an 
 Action for Trespass or Conreision. 
 
 (1) To maintain an action for trespass or con- 
 version, the plaintiff must be the person in actual 
 or constructive possession of the goods, or must 
 have a legal right to the immediate possession. 
 
 (2) Any possession however temporary is 
 sufficient against a wrongdoer. 
 
 (i) Hiscox V. Grtenivood, 4 Esp. 17-4. 
 {k) Wells V. Head, 4 C. & P. 568. 
 {I) Vere v. Lord Cawdor, 1 1 East, 569. 
 (m) Read v. Edwurd.% 34 L. J. C. P. 31. 
 
 {n) Donald v. Snddimi, L. R. 1 Q. B. 585 ; JInlliday v. HoUjate, 
 L. R. 3 Ex. 299.
 
 274 Direct Infringement of Private Eights. 
 
 Art. 123. (3) Although he cannot maintain an action 
 for trespass or conversion, the person entitled to 
 the reversion of goods may maintain an action 
 for ^iij permanent injury done to them (o). 
 
 It does not seem necessary to attempt to explain the 
 difference between trespass and conversion. There were 
 formerly some wrongful acts for which trespass only 
 lay, others for which conversion only lay, and others 
 for which either remedy lay. For present purposes, it 
 is enough to say that to support an action of tort in 
 respect of goods, the plaintiff must have possession or the 
 right to immediate possession. The right to immediate 
 possession, without actual possession, is sometimes called 
 " constructive possession." The phrase " constructive pos- 
 session " is also used of the possession of one who has not 
 physical control of goods, but whose agent has. For 
 instance, where goods are in a warehouse or in a ship, and 
 the owner has the documents of title by means of which he 
 can get actual possession, he may be said to have construc- 
 tive possession. Another kind of possession is " possession 
 by relation." An administrator or executor has possession 
 by relation from the moment of the death of the intestate 
 or testator, for his title relates back to the death. And 
 this possession by relation is enough to support an action 
 against a wrongdoer, although at the time of the wrongful 
 act the administrator or executor had neither title nor 
 actual possession, nor the right to immediate possession. 
 Possession of (1) If a hirer or carrier of my goods wrongfully delivers 
 bailee. them to a third person, the bailment is thereby determined, 
 
 and the immediate right of possession at once revests in 
 me, so that I can sue in conversion either the bailee or the 
 person to whom he has delivered them (7;). 
 
 8ale of pro- (2) And so, when, by a sale of goods, the property in 
 
 perty under them has passed to the purchaser, subject to a mere lien for 
 lien. 
 
 (0) Tancnd v. A//<jood,2H L. J. Ex. 802 ; Lancashire Waggon Co. v. 
 Fitzhngh, 6 H. & N. 502 ; Mearn v. London and South Western Bail. 
 Co., 11 C. B. (N.s.) 854. 
 
 (p) Cooper V. Willomatt, 1 C. B. 672 : Wyhl v. Pirkford, 8 M. & W. 
 443.
 
 (f 
 
 Of Teespass to and Conversion of Chattels. 275 
 
 the price, the vendor will be liable for conversion if he Art. 123. 
 resells and delivers them to another. But in such a case 
 the plaintiff will only be entitled to recover the value of 
 the goods, less the sum for which the defendant had a lien 
 upon them (q). 
 
 (3) An administrator may maintain an action for trespass Possession 
 to goods, which trespass was committed previously to his W velation. 
 grant of letters of administration (r). 
 
 (4) A trustee, having the legal property, may sue in Possession 
 respect of goods, although the actual possession may be in 
 his cestui qui trust, for he has in law the right to immediate 
 possession (s). 
 
 (5) In the leading ease of Armory v. Delamirie (t), it was Possession 
 held that the finder of a jewel could maintain an action ? [ijr ^'^'^ '■ • 
 against a jeweller to whom he had shown it, w^ith the ■t*»»4^ 
 intention of selling it, and who had refused to return it to '7t»tMi lt*Y *' 
 him ; for his possession gave him a good title against all the ' ' 
 world except the true owner. In short, a defendant cannot 
 
 set up a jus tertii against a person in actual possession. 
 But where the possession of the plaintiff is not actual, but 
 only constructive, the defendant may of course set up a 
 jus tertii ; for constructive possession depends upon a good 
 title, and if the title be bad there can be no constructive 
 possession («) unless the third person waives or has never 
 asserted his claim to the chattels (,*•). 
 
 (6) A bailee of goods may maintain trespass or conver- 
 sion against a wrongdoer, by virtue of his having the actual 
 possession. So also may the bailor as he is in possession 
 by the bailee. Thus, when an article is lent the borrower 
 
 (il) PcKie V. Ednlgee, L. R. 1 P. C. 127 ; ^f'a^fin</u/e v. S/in/h, 
 ] Q. B. 389. 
 
 (r) Tharpe v. Stallwood, 5 M. & G. 760. 
 
 (.s) Barker v. Furlong, [1891] 2 Ch. 172. 
 
 (f) 1 Sm. L. C ; see also South Stafordxhir<; [VaterworLs Co. v 
 Shar77ian, [1896] 2 Q. B. 44. 
 
 {ii) See Leake v. Lon-dai/, 4 M. & (i. 972; Richarda v. Jenkin>i, 
 17 Q. B. 1). 544. 
 
 (,i-) See Barker v. Fiir/oixj, [1891 J 2 Ch. 172.
 
 276 
 
 Direct Infringement of Private Eights. 
 
 Art. 123. or the lender may bring an action against a wrongdoer (y). 
 So also may the owner of goods let on hire [z) and the 
 pledgee of goods pawned (a). The bailee, if he succeeds 
 in an action of conversion, recovers the full value of the 
 goods as damages, and must account to the bailor (6). 
 
 Aet. 124. — Trespasses hy Joint Oivners. 
 
 A joint owner can only maintain trespass or 
 conversion against his co-owner, when the latter 
 has done some act inconsistent with the joint 
 ownership of the plaintiff (c). 
 
 (1) Thus, a complete destruction of the goods would be 
 sufficient to sustain an action, for the plaintiff's interest 
 must necessarily be injured thereby {d). 
 
 (2) But a mere sale of them by one joint owner would 
 not, in general, be a conversion, for he could only sell his 
 share in them. But if he sold them in market overt, so as 
 to vest the whole property in the purchaser, it would be a 
 conversion (e). 
 
 Art. 125. — T respassers ab initio. 
 
 If one, taking a chattel by authority given him 
 by law, abuses his authority, he renders himself 
 a trespasser ah initio (/). 
 
 Thus, when the defendant took an horse as an astray, as 
 he was autliorised by law to do, and then worked the horse 
 
 (y) NicholU v. Bastard, 2 C. M. & R. 659 ; Burton v. Ilnghes, 
 2Bing. 173 ; Lotanv. Cross, 2 Camp. 464 ; Booth v. Wilson, 1 V,. & A. 59. 
 
 (z) Cooper v. Willomatt, 1 C. B. 672 ; Lancashire Waggon Co. v. 
 Fitzhugh, 6 H. & N. 502. 
 
 (a) Swire v. Leach, 18 C. B. (n.s.) 479. 
 
 (b) See The WinkfieJd, [1902] P. 42 (overruling Claridge v. South 
 Staffordshire Tramn-ay Co., [1S92J 1 Q. ]i. 422), Avhere the principles 
 and cases are fully discussed. 
 
 (c) 2 Wms. Saund. 47 o ; and see Jacobs v. Seward, L. R. 5 H. L. 464. 
 
 (d) Barnurdiston v. Chapman, 4 East, 121. 
 
 (e) Mayhew v. Herricl; 7 C. F.. 229. 
 (/) Oxley V. Watts, I T, R. 12.
 
 Of Trespass to and Conveksion oe Chattels. 277 
 
 (which he had no authority to do), he became a trespasser Art. 125. 
 ah initio (</). But the rule only applies where the original 
 authority is given by law — not where it is given by the 
 parties — and the abuse must he. misfeasance not mere 
 nonfeasance (//). 
 
 Art. l-26.-^Benie(J// by BccapfionJ 
 
 When anyone has deprived another of his 
 goods or chattels, the owner of the goods may 
 lawfully reclaim and take them wherever he 
 happens to find them, so it be not in a riotous 
 manner or attended with breach of the peace, 
 and he can justify an assault made for the pur- 
 pose of recapturing after demand and refusal (/). 
 
 Art. V21 . — Bemed/j hij oi-diiiaiij Action. 
 
 (1) Wherever there has been a trespass to, or 
 wrongful conversion or wrongful detention of. a 
 chattel, an action lies at the suit of the person 
 injured, for damages. 
 
 (2) The measure of damages in an action 
 of conversion is the value of the goods at the 
 time of the conversion. Judgment in conver- 
 sion followed by satisfaction vests the property 
 in the defendant. 
 
 (3) Where the defendant still retains the 
 chattel, the court, or a judge, has power to order 
 that execution shall issue for return of the 
 specific chattel detained, without giving the 
 defendant the option of paying the assessed value 
 
 (y) Oxhy v. Watts, 1 T. R. 12. 
 
 (h) Compare the similar rule as to trespass to land, Aiqtra, Ait. 1 l"i, 
 p. 261. 
 
 (/■) yiAa/cx V. ///;/.7v, .SO L. .T. C. P. .'UT.
 
 278 
 
 Direct Infringement of Private Eights. 
 
 Art. 127. instead ; and if the chattel cannot be found, 
 
 then, unless the court or judge shall otherwise 
 
 order, the sheriff shall distrain the defendant by 
 
 all his goods and chattels in his bailiwick till the 
 
 I defendant renders such chattel (Z). 
 
 I 
 
 Id the old action of detinue the judgment was for the 
 
 return of the chattel. In conversion the judgment was, and 
 is, for damages. The measure of damages is the actual 
 value at the time of the conversion, i.e., of the wrongful 
 taking or the demand or refusal (/). By satisfying the 
 judgment the defendant gets a good title to the goods. But 
 there must be an actual satisfaction by payment in full of 
 the judgment debt (m). The court may, however, order 
 delivery up of the specific article instead of giving judgment 
 for damages, as in the old action of detinue. 
 
 
 Art. 1'28. — llemeihi hij Aciioii of Beplecin. \ 
 
 The owner of good.s disfjriint'd is entitled to 
 have them returned upon giving such security 
 as the law requires to prosecute his suit, without 
 delay against the distrainer, and to return the 
 goods if a return should be awarded (;/). 
 
 The application for the replevying or return of tlie goods 
 is made to the registrar of the county court of the district 
 where the distress was made, who thereupon causes their 
 return on the plaintiff's giving sufficient security. The 
 action must be commenced within one month in the county 
 court, or within one week in one of the superior courts ; but 
 if the plaintiff intends to take the latter course, it is also 
 made a condition of the replevin liond that the rent or 
 
 (k) R. S. C. Old. 48, r. 1. 
 
 (I) He.nder>ion v. William.% [1S95] 1 Q. B. 521. 
 (m) Cooptr V. Shepherd, 3 C. B. 266; Brui^midd 
 L. R. 6 C. P. o84. 
 
 {it) See 51 & .")2 Vict. c. 43, ss. 134—137. 
 
 Ih 
 
 (rnxo/i,
 
 Of Trespass to and Conversion of Chattels. 279 
 
 damage, in respect of which the distress was made, exceeds Art. 128. 
 £20, or else that he has good grounds for beheving that the ' 
 
 title to some corporeal or incorporeal hereditaments, or to 
 some toll, market, fair, or franchise, is in dispute (o). 
 
 Art. 119.— Waiver of Tort. 
 
 When a conversion consists of a wrongful sale 
 of goods, the owner of them may elect to waive 
 the tort, and sue the defendant for the price 
 which he obtained for them, as money received 
 by the defendant for the use of the plaintiff ( jj). 
 But, by waiving the tort, the plaintiff estops 
 himself from recovering any damages for it {q). 
 
 Once having elected to treat the transaction as a 
 sale, as by receiving or suing for part of the purchase- 
 money, the plaintiff cannot afterwards sue in tort. If an 
 action for money had and received is brought, that is a 
 conclusive election to waive the tort ; and so the bringing 
 of an action of conversion or trespass is a conclusive election 
 not to waive the tort. These are conclusions of law (r). In 
 other cases it is a question of fact whether or not there has 
 been an election; and if the facts show an intention 
 to retain the remedy in tort against one tort feasor, a ' '^ 
 
 settlement with another one will not affect that right, ' , jT 
 
 although the plaintiff may have sued alternatively both in T' u» '*^ ..o6^ 
 tort and for money had and received, and although he may ,j */'''* r^*^ 
 
 have got an interim injunction restraining any dealings with 
 the money (s). 
 
 (o) 51 & 52 Vict. c. 43, s. 135. 
 
 (p) Lamine v. DorreH, 2 Ld. Ravm. 1216 ; Onqhton v. Seppimjs, 
 1 B. & Ad. 241 ; Notkij v. Buck, 6 \i~ k C. 160. 
 {q) Brewer v. Sparrow, 7 B. & C. 310. 
 (/•) Smith V. Baker, L. R. 8 C. P. 350. 
 [s) Eke V. Feed, [1900] 1 Q. B. 54.
 
 280 DiKECT Infringement of Private Eights. 
 
 Art. 130. Art. 130. — Eecovenj of Stolen Goods. 
 
 If any person who has stolen property is prose- 
 cuted to conviction by or on behalf of the owner, 
 the property revests in the person who was the 
 ? , , fy h , ' owner, notwithstanding any intermediate sale in 
 
 market overt, and the court before whom such 
 person shall be tried shall have power to order 
 restitution thereof (f). 
 
 Therefore, even if the goods were sold by the thief in 
 market overt, yet, by this section, they must be given up to 
 the original owner. 
 
 Art. 131. — Limitation. 
 
 All actions for trespass to, or conversion, of 
 goods and chattels, must be commenced within 
 six years next after the cause of action arose {u). 
 
 (0 '24 & 25 Vict. c. 96, s. 100 ; 56 & 57 Vict. c. 71, s._24 (2). 
 (m) 21 Jac. 1, c. 16, s. 3. 
 
 ^^H. ^^^'^^.
 
 QUESTIONS 
 
 UNDEEHILL'S TOETS. 
 
 By C. 0. BLAGDEN, M.A., 
 
 OF GKAV'S IXX, BAKKI!^TJ;K-AT-LAW. 
 
 T 2
 
 NOTE. 
 
 These questions have been drawn up with a 
 view to assisting students in mastering tlie prin- 
 ciples of the Law of Torts, and in testing their 
 knowledge of that subject by reference to the pages 
 of the present work. They are not, therefore, 
 necessarily such questions as it would be fair to set 
 in an examination, though no doubt many of them 
 would be suitable for that purpose. The numbers 
 at the end of each question give the pages where the 
 required information can be found.
 
 QUESTIONS. 
 
 1. Dertue " tort," and give reasons for your detinition. [7—11.] 
 
 2. Discu.ss the definition of a tort as '• a wrong independent of 
 contract." [7, 36—41.] 
 
 3. Exi)lain and illustrate the distinction between "tort," "crime," 
 "breach of contract," "breacli of trust," and moral turpitude. Does 
 the fact that a wrongful act (or omission) happens to fall under 
 more than one of these heads affect the common law remedy ? 
 [7, 10, 21—24, 27—30, 36—41, 256, 257.] 
 
 4. What elements are combined in the legal conception of "tort" I 
 Give illustrations of each. [8 — 13.] 
 
 5. Discuss and illustrate the maxim that injuria sine damno is 
 actionable, but >kimnum sine injuria is not. What is the precise 
 meaning of the words damnani and injuria in this connection? 
 [8-13.] 
 
 6. When is actual damage a necessary part of the cause of action 
 in tort, and when is it not ? [9, 10.] 
 
 7. A man is unlawfully detained for a short time, but so as to 
 suffer no loss whatever thereby either in money, health, comfort, or 
 otherwise. On another occasion he is, by fraudulent misrepresenta- 
 tions as to existent facts, deceived into a belief, which, if he acted 
 on it, would result in pecuniary loss to him ; but he finds out the 
 •fraud in time and does not in fact suffer any loss whatever. Can he 
 maintain an action against the person (a) who detained him, (b) who 
 deceived him I [9, 10.] 
 
 8. Distinguish, with illustrations, betweeii— 
 
 (a) An absolute private ri-lit ; 
 
 (b) A (lualified ])rivate right ; and 
 
 (c) A public right. 
 
 What is the importance of these distinctions in relation Ui the law 
 of torts I [9—13.] 
 
 9. Under ^vhat circumstances can an individual maintain an 
 action for dama.i^es for the infringement of a public right? Give 
 illnstratiniis. [10. 12. 13.]
 
 284 Questions. 
 
 10. Give instances of unlawful acts which, though causing 
 damage to particular individuals, nevertheless give rise to no action 
 for damages at common law. [10, 11, 13.] 
 
 11. Illustrate and explain the distinction between a public and a 
 private nuisance. Under Avhat circumstances can an action for 
 damages be brou.Ljht in respect of the former? [10, 12, 13, 195 — 
 200.] 
 
 12. A. walks on B.'s land without having any legal right to do so 
 but without doing any damage to it. Can B. maintain an action 
 against A.? Would it make any difference if A. had merely 
 stepped on B.'s land in order to avoid being run over by C.'s motor 
 car? [11.] 
 
 13. A. owns a shop which greatly depends for its custom upon its 
 attractive appearance ; a gas company erects, on its own land, a 
 gasometer, hiding the shop from the public and thereby seriously 
 damaging A.'s trade. Can A. maintain an action for damages against 
 the company ? Give reasons for your answer. [11, 12.] 
 
 14. A landowner by working his mines causes subsidence of the 
 surface, resulting in the collection of rainwater which percolates 
 into his neighbour's mine and thereby causes trouble and expense 
 to the neighbour. Can the latter maintain an action for damages ? 
 [12.] 
 
 15. A., a legally qualified voter, of Conservative views, duly 
 tenders his vote at a parliamentary election to the returning officer, 
 who wrongfully refuses to register it. The Conservative candidate 
 is returned by a large majority. Has A. any cause of action against 
 the returrung officer, and, if so, on what ijrinciple 1 [12.] 
 
 16. A. unlawfully obstructs a public highway, thereby delaying 
 B., amongst other members of the public in passing along it. Can 
 B. maintain an action for damages against A. ? [12.] 
 
 17. A. leaves an unfenced hole on his land immediately adjoining 
 a public highw^ay. B., passing along in the dark, falls into the hole 
 and breaks his leg. Can B. maintain an action for damages against 
 A. I [12, 13.] 
 
 18. A. keeps a coffee-house in a narrow street. His neighbour B. 
 carries on a business as auctioneer, and is constantly loading and 
 unloading goods into and from vans in the street to such an extent 
 as to create a public nuisance and to obstruct A.'s business and in- 
 convenience A.'s customers. Can A. maintain an action for damages 
 against B., and, if so, on what principle / [13.] 
 
 19. A.'s servant is so seriously injured in a railway accident due 
 to the negligence of a signalman employed by the railway company, 
 that A. loses his services for six months. Can A. maintain an
 
 Questions. 285 
 
 action for damages against tbe company ? If, instead of being 
 injured, the servant is killed outright, can A. maintain an action ? 
 [13.] 
 
 20. Give a concise classification of torts under a feu- general 
 headings. [13—15.] 
 
 21 A tort has sometimes been analysed into (a) an unauthorised 
 act, and (b) the infringement of a right. Discuss Uiis analysis with 
 reference to a case of assault and battery. [14, 15.] 
 
 22 What kinds of acts are referred to by the maxim " sic utere 
 tuo ut alienum non Mas" l Discuss and illustrate this maxim. 
 [14, 15, 196.] 
 
 23. To what extent is the voluntary nature of the wrongful act 
 or omission an essential element in a tort 1 [15, 16.] 
 
 24 Is it ever a good defence to an action for tort, to show that 
 the wrongful act was done in pursuance of instructions received 
 from a third party and was not known by the defendant to be 
 wrongful ? [15, 16, 49.] 
 
 25. Which, if any, of the following would constitute a good 
 defence to an action for damages in tort — 
 
 (a) that the defendant did not intend to do harm ; 
 
 (b) that he did not know his act was illegal ; 
 
 (c) that the damage done would not have happened but for an 
 
 accident, which could neither be prevented nor foreseen ; 
 
 (d) that the act which did the damage was done to avoid a 
 
 pressing danger 1 [15 — 20.] 
 
 26 A butcher's man leaves his horse and cart unattended in the 
 road while he serves meat at the back door of a neighbouring house 
 in accordance with his usual custom. The horse, which has generally 
 remained quite quiet under such circumstances, is frightened by a 
 motor car, runs away and injures a lady. Has the lady a cause of 
 action against the butcher's man ? [15, 16.] 
 
 27 A. has an unguarded pit on his premises. B. coming on to 
 the premises on lawful business, falls into the pit and is seriously 
 injured. Has B. a cause of action against A., and why ? [15— 17.J 
 
 28 A. plants a vew tree in his back garden, and in course of 
 time it grows so as to project into B.'s meadow. One of B.'s horses 
 kept in the meadow eats the projecting shoots and dies m conse- 
 quence. Under what circumstances and on what principle, it at all, 
 has B. a cause of action against A. 1 [15 — 17.] 
 
 29. A.'s coachman is driving quietly along a street when the horse, 
 without warning or any explainable cause, bolts, and in spite of the 
 coachman's utmost eflforts, swerves on to the footpath and knocks 
 down B., a passer-bv, injuring him severely. Assuming that the
 
 286 ' Questions. 
 
 coaclinian was a man of ^kill and experience, has B. any cause of 
 action against A. I Give reasons for your answer. [15 — 17.] 
 
 30. A., a guest at a shooting party, accidentally, without intending 
 to do so and without being guilty of negligence or want of care m 
 the use of his gun, shoots B., another guest, in the leg. Has B. any 
 cause of action against A. ? [15, 17.] 
 
 31. Illustrate the principle that a man must be presumed to 
 intend tlie probable consequences of his voluntary acts or omissions. 
 [1.5—20.] 
 
 32. Distinguish the decisions in Nichols v. Marsland, Bo.c v. Juhb, 
 Eyiands v. Fletcher, and Wilson v. Wacldell. [15, 17—20, 202.] 
 
 33. A. wrongfully throws a lighted squib at B., who, in self- 
 defence wards it off so that, without either of them intending it, the 
 squib explodes in C.'s eye and blinds him. Can C. maintain an 
 action for damages against A. and B., or either of them 1 [15, 20.] 
 
 34. Is the nature of the motive with which the act was done ever 
 an essential ingredient in tort ? Illustrate your answer. [21—24, 
 130—137, 140, 141, 144, 145, 169, 171, 196, 197, 269, 270.] 
 
 35. Does an evil motive ever make wrongful an act which would 
 otherwise be justifiable ? Does a good motive ever make justifiable 
 an act which would otherwise be wrongful I [21 — 24, 169, 171, 196, 
 269, 270.] 
 
 36. In what senses is the word " malice " used in connection with 
 (a) malicious prosecution ; (Vj) libel and slander ; and (c) other torts 
 generally ? [21—24, 130—137, 140—146.] 
 
 37. A., a trade union otticial, induces B. and some thousands of 
 other workmen to break their contracts with their employer C. and 
 go on strike. In doing so A. was actuated solely by a desire (a) to 
 terminate as soon as possible a dispute which for some time had 
 dislocated the industry of the locality, and (V)) to improve the position 
 of the workmen employed by another employer, D. Has C. (who has 
 suffered great damage in consequence of A.'s act) a cause of action 
 against A. ] [21, 152, 153, 169—175.] 
 
 38. A. imluces B. not to enter into the service of C. Has C. (who 
 may be assumed to suffer some damage by reason of not obtaining 
 B.'s services) any cause of action against A. (a) when A.'s motive in 
 •giving the advice was to benefit B., or (b) when A.'s motive was to 
 injure C. ? [21, 22, 169—175.] 
 
 39. Is it a tort to induce a person (a) to break a contract,, (b) to 
 refrain from making a contract ? [21. 22, 152, 153, 169—175.] 
 
 40. A. walks across B.'s land under the honest but mistaken 
 belief that there is a public right of way across it. Is his belief a 
 good defence to an action for trespass ? [23.]
 
 Questions. "^^7 
 
 41 A. puichases from B. goods wliicli lie believes to be B.'s, but 
 whicii are in fact C.'s i.roperty. What is A.'s lialnlity towards C. ? 
 [23, 270—272, 280.] 
 
 42. Does (a) negligence, uv (b) fraud, necessarily involve any 
 moral turpitude ? [23, 24.] 
 
 43. What is meant by saying that "the damages must not be too 
 remote " I Illustrate the proposition. [24, 25.] 
 
 44. Assuming a wronglul omission on the part (jf A. to have caused 
 serious damage to B., would it l)e a good defence for A. to show that, 
 even if there had lieen no such omission, B. would still have suffered 
 some damage ? [26, 27.] 
 
 45. To what extent is the civil remedy in damages interfered 
 with when tlie wrongful act or omission amounts to a felony'^ 
 [27-31.] 
 
 46. A. has innocently bought goods from B., who has stolen them 
 from C. Can C. bring an action against A. without prosecuting B. 
 for the theft? [27, 30,31.] 
 
 47. To what extent can a duty or right created, or declared, by 
 statute, be enforced at common law ; and in what cases is the common 
 law action for damages excluded I [32, 33.] 
 
 48. Where a duty is created by statute for the purpose of prevent- 
 ing a particular niischief, is a person, who, by reason of another's 
 neglect of the statutory duty, suffers a loss of a different kind, entitled 
 to maintain an action for damages in respect of such loss ? Give 
 instances. [34.] 
 
 49. Explain and illustrate the distinction between actions m 
 "tort" and in "contract," respectively. Is there any practical 
 importance nowadays in this distinction ? [36—41.] 
 
 50. If in a railway accident, occurring through negligence on the 
 part of the railway company's servants, a passenger is injured, does 
 his remedy lie in contract or in tort ? [36, 37.] 
 
 51. A man pledges a coat at a pawnbroker's, and owing to the 
 hitter's negligence it becomes ruined by moths. Discuss the ([uestion 
 whether the owner's remedy is in contract or in tort. [36, 37.] 
 
 52. What is meant by privity of contract > Has it any ap]dica- 
 tion to tort ? [37—40.] 
 
 53. A man employs a surgeon to attend to his wife. Owing to 
 the surgeon's negligence, the patient is injured. Has the latter any 
 remedy at law, and, if so, on what pvincii>le ? [37, 38.] 
 
 54. A., a domestic servant, going by train from London to 
 Birmingham, loses his luggage owing to the negligence of the
 
 288 Questions. 
 
 railway company's servants. His fare had been paid by B., his 
 master. What remedy has A. against the company I [37, 38.] 
 
 55. Vary the preceding question by supposing that A. had him- 
 self paid for his ticket out of his own moneys, and that the lost 
 luggage contained a suit of clothes belonging to B., who had gone to 
 Birmingham on the previous day. What remedy, if any, would B. 
 have against the company in respect of his lost suit of clothes 1 
 [37, 38.] 
 
 56. A. goes to a gunmaker and explains to him that he wants a 
 good, sound gun for the use of himself and his son B. The gun- 
 maker sells him a gun which he warrants to be perfectly sound. 
 A few days later B. goes out shooting and the gun bursts and 
 seriously damages his face. Has he any remedy, and, if so, on what 
 principle, against the gunmaker ? [37 — 39.] 
 
 57. If a person gratuitously undertakes to perform a service for 
 another person, can he be made liable for (a) not performing it, or 
 (b) performing it so negligently that damage results to the other 
 person 1 Give your reasons. [40.] 
 
 58. Explain the decision in Coggs v. Bernard. [40.] 
 
 59. A. intrusts a purse of money to the care of B. who gratuitously 
 undertakes the custody of it. Through B.'s negligence the purse and 
 its contents are lost. Has A. any remedy against B., and, if so, on 
 what princiiDle ? [40, 41.] 
 
 60- A., walking along the road, is overtaken by a motor car driven 
 by B., a " chauffeur," whom he knows slightly, and who offers him 
 a " lift." A. rashly accepts the invitation, and in consequence 
 breaks his arm in an accident (caused solely by B.'s negligence) 
 which terminates the excursion. Has A. any remedy against B. or 
 B.'s employer, and, if so, on what principle 1 [40, 41.] 
 
 61. Under what circumstances, if at all, is an action for damages 
 maintainable in England in respect of a tort committed a])road i 
 [42, 43.] 
 
 62. Explain and reconcile the decisions in Mostij)i v. Fahrigus ; 
 Phillifs V. Eyre ; British South Africa Co. v. Companhia de Mocam- 
 hique ; " Morocco Bound" Sijndicate, Limited v. Harris. [42, 43.] 
 
 63. Who may be plaintiff in an action for tort? Slate any 
 exceptions to the general rule. [44.] 
 
 64. Can a husband sue his wife, or a wife her husliand, in 
 tort ■? [44.] 
 
 65. Can a corporation sue in tort itrecisely as if it were an 
 individual person I [44, 115, 120.] 
 
 66. A pregnant woman suffers a shock in a railway accident 
 (caused by the default of the railway company's servants), with the
 
 Questions. 289 
 
 result thai her child is born prematurely .and dftfornied. Has the 
 child a remedy against the railway company ? [44.] 
 
 67. Who may be made a defendant in an action for tort, and 
 what classes of persons are exempt from such liability 1 [45.] 
 
 68. An infant hires a horse for the afternoon expressly for riding 
 on the roads. He tries it at a fence and In-eaks its knees. Can he 
 be made liable (a) for the damage done to the horse's knees ; (!>) for 
 the hire, which he has omitted to pay 1 [45.] 
 
 69. Discuss the liability of infants, lunatics, corporations, and 
 trades unions in tort. [45- 47, 145, 146.] 
 
 70. To what extent is a husband liable for torts committed 
 by his wife ? Is it ever necessary to join him as a defendant ? 
 [48, 49.] 
 
 71. Explain and illustrate the maxim " qui facit i)er alivm facit 
 per se " in its application to torts. [49 — 62, 75 — 78.] 
 
 72. Explain the maxim " Omnis ratihahitio rctrotrahitur et 
 mandato priori cequiparatur." To what extent is it applical)le in 
 tort ? [50.] 
 
 73. Explain the maxim '■'■ ddecjatns non potest delegare," and give 
 illustrations of its application in tort. [50, 51.] 
 
 74. If a cabdriver (whose duty it is to drive the cab himself) 
 allows the "fai-e" to drive, and the latter drives so badly as to 
 collide with and damage a private carriage, is the owner of the 
 cab liable to the owner of the carriage for the damage done ; and, 
 if so, on what principle ? [50, 51, 57, 58.] 
 
 75. A driver of a cart negligently leaves the cart in charge of a 
 small boy, whose duty it was to go with the cart to deliver parcels, 
 but who had been forbidden to drive. The boy drives the cart and 
 collides with a private carriage. Is the tradesman, who employs 
 the driver and the boy, liable for the damage done to the carriage ; 
 and, if so, on what principle ? [50, 51.] 
 
 76. State precisely the liability of a person for the wrongful acts 
 and omissions of a contractor employed by him to do a particular 
 piece of work. [52, 53.] 
 
 77. A railway company was empowered by Act of Parliament 
 to construct a railway bridge over a public highway, and employed 
 a contractor to do the work. A servant of the contractor negli- 
 gently caused serious injury to a person passing along the highway 
 by allowing a stone to fall on him. Discuss the liability of the 
 company for the damage done to the injured individual. [52, 53.] 
 
 78. A company, not authorised to interfere with certain streets, 
 directed their contractor to open trenches therein. The contractor's
 
 290 Questions. 
 
 servant, in doin^ so, left a heap of stones, over which a person fell 
 and was injured. Discuss the lialiility of the company for the 
 dama<,'e done to this person. [52 — 54.] 
 
 79. A compiny, bein;,' authorised Tjy Act of Parliament to con- 
 struct a bridge over a navigable river, employed a contractor to do 
 the work. A person, who suffered damage by reason of defects 
 in the construction and working of the bridge, sues the company. 
 On what principle, if at all, is his action maintainable / [52—54.] 
 
 80. A. and B. are owners of two adjoining houses, A. being 
 f-ntitled to have his house supported by B.'s soil. B. employs a 
 contractor to pull down his house, excavate the foundations, and 
 rebuild the house. The contractor undertakes the risk of supporting 
 A.'s house during this process, but fails to take the necessary pre- 
 cautions. Is B. liable to A. for the consec^uent damage to A.'s 
 house ; and, if so, on what principle ? [52 — 55.] 
 
 81. A. maintains a lamp hanging over a highway for his own 
 purposes. He employs a contractor to repair it ; but the latter 
 does his work so badly that soon afterwards the lamp falls down 
 and hurts B., a passer-by. Is A. liable to B. in damages ; and, if 
 so, why ? [52, 53, 55.] 
 
 82. A contractor, employed to clear and burn brushwood on land 
 belonging to A., negligently and in disregard of express instructions 
 as to the time of lighting the fire, lit it and permitted it to spread 
 on to the laud of B. Is A. liable in damages to B. for the injury 
 thus done to B.'s land ; and, if so, on what principle i [52, 53, 55.] 
 
 83. Distinguish the liability of a person for the tortious acts of 
 (a) his servants, and (li) his other agents. What test would you 
 apply to decide whether an agent is a servant of his prin- 
 cipsl ? [56.] 
 
 84. A., being the owner of a carriage, horse, and harness, and 
 lo.-ing his coachman at short notice, gets another for the day from 
 a livery-stable keeper, and is driven out -by him. Discuss the 
 liability of A. for damage done to a stranger by reason of the negli- 
 gence or want of skill of this hired driver. [56, 57.] 
 
 85. A. having a carriage, but no horse or harness, hires these for 
 the day I'rom a livery-stable keeper, who also supplies him with a 
 driver on inclusive terms, so that A. does not pay the driver's wages 
 direct to the latter. Discuss the liability of A. for damage done by 
 the driver to B.'s carriage in a collision. [56, 57.] 
 
 86. A., having a coachman to spare, lends his services for the day 
 tc. B., who is short of one. Discuss the liability of A. and B. for 
 damages done to C. by the coachman while driving B.'s carriage and 
 hoi-ses. [56, 57.]
 
 Questions. 291 
 
 87 A., beiiv^ the owner of a motor car, leaves it in charge of a 
 "chaiitfeur" wUh instructio^is to call for him at a certain place that 
 afternoon In A.'s absence during the morning the "chauffeur" 
 takes his sweetheart for a drive in the car (an event not contem- 
 plated by A ), and during the drive negligently collides with and 
 damages B.'s carriage. Discuss A.'s liability to B. for the damage 
 done." [56, 58.] 
 
 88 An omnibus conductor, for the fun of the thing, changes 
 places with the driver and drives the omnibus so unskilfully that he 
 collides with and damages a private carriage. Discuss the liability 
 of the omnibus comi)any. [56, 59.] 
 
 89 A bank manager, in answer to inquiries by A. as to the 
 financial position of B. (a customer of the bank), replied that B. is 
 a person of sound financial position. This statement was known by 
 the bank manager to be untrue when he made it, and was made, 
 not for his own benefit but for the benefit of the bank, with intent 
 to deceive A. Advise A. as to whether, having suttered loss by 
 acting on the faith of this statement, he has a cause of action against 
 the bank. [56, 59, 161, 164, 165.] 
 
 90 An omnibus driver, contrary to the express instructif)n of his 
 employers, drives in such a way as to obstruct a rival omnibus with 
 a view of increasing the takings of his own. Discuss the liability ot 
 his employers. [5fj, 59.] 
 
 91 An omnibus driver, out of spite against a rival omnil)us, 
 struck the horses of the latter with his whip. Discuss the liabilit>- 
 of the driver's employers. [56, 59.] 
 
 92 A occupies offices beneath those of B., in which is a lavatory. 
 One day, by reason of the negligence of B.'s clerk, who used the 
 lavatory, the tap was left running and the water overflowed and 
 damaged A.'s offices. Discuss the liability of B. for such damage. 
 [56, 59, 60.] 
 
 93 What is meant bv the doctrine of "common employnu'.it " ? 
 On what principle is it based and to what extent has it been cut 
 down by modern legislation 1 [63—74.] 
 
 94 State precisely the common law liability of a master towards 
 his servant for damage done to the latter by reason of the negli- 
 gence or unskilfulness of one of his fellow servants. [64.] 
 
 " 95 A butcher's man was ordered to deliver meat from a van 
 The van, having been overloaded by the negligence of another ot 
 the butcher's servants, broke down, and the butcher's man was hurt 
 thereby. Can the butcher's man maintain an action for damages 
 against his employer ? [64, 65.].
 
 292 Questions. 
 
 96. Owing to the negligence of rhe captain of a merchant vessel, 
 one of the crew is seriously hurt. Discuss the liability of the 
 owners. [64, 65.] 
 
 97. Owing to the negligence of the captain of ship A., it collides 
 with ship B., and one of the crew of the latter ship is seriously 
 injured thereby. Both ships belong to the same owner. Discuss 
 his liability for the damage done to the injured man. [64, 65, 67.] 
 
 98. A collier is seriously injured by the fall of a stone from the 
 side of the shaft, which has been left in a dangerous state by his 
 employers. Discuss their liability in damages. What must the 
 plaintiff prove in order to succeed in his action ? [64, 68.] 
 
 99. A master orders a servant to take a bag of corn up a ladder 
 which is unsafe ; the ladder breaks and the servant falls down and 
 is injured. Discuss the liability of the master, on the alternative 
 assumptions that (a) he knew the ladder was unsafe, but the servant 
 did not ; (b) he did not know, but the servant did ; (c) both 
 knew ; and (d) neither knew nor had the means of knowing. 
 [64, 68.] 
 
 100. What is meant by the maxim '■•volenti non fit injuria" 1 
 Discuss its application to the case of injuries sustained by a servant 
 employed in a dangerous occupation. [64, 68, 69, 72.] 
 
 101. A passer-by assists a carman in managing a fractious horse. 
 In course of doing so, he himself gets injured owing to the carman's 
 negligence. Discuss the liability of the carman's employer for the 
 dama'ge done to the passer-by, on the assumption that the latter 
 was asked Ijy the carman to give his assistance. [70.] 
 
 102. Explain and illustrate the provisions of the Employers' 
 Liability Act, 1880. [71—74.] 
 
 103. Explain and illustrate the liability of a partner for the torts 
 of his fellow partner. [75 — 78.] 
 
 104. One member of a firm libels a stranger. Can the latter sue 
 the firm in damages, and, if so, on what principle ? [75, 76.] 
 
 105. ^loney received either l)y (a) a firm, or (b) one partner of a 
 firm, is misappropriated by him so as to cause loss to a stranger. 
 Discuss the liability of the other partners. [75, 77, 78.] 
 
 106. From what period do the Statutes of Limitation commence 
 tt) run in the case of torts? [79 — 85.] 
 
 107. Ill 1895 A. began to work coal under the land on which B.'s 
 house stands. In consequence of this working, a subsidence occurred 
 in 1900, and B.'s house was damaged. In 1904 B. commenced an 
 action for damages against A. What facts, besides the above, Avould 
 be of importance in deciding the case for or against B.'s claim ? 
 [79-81.]
 
 Questions. 293 
 
 108. A.'s furniture was legally seized under an execution by the 
 sheriff and bought by B., a friend, who, out of kindness, left it in 
 A.'s possession where it remained for ten years, at the end of which 
 A. died. B. then claimed it, but A.'s widow pleaded the Statute 
 of Limitations. Discuss their respective claims to the furniture. 
 [79—81.] 
 
 109. State and illustrate the effect of the fraudulent concealment 
 of a tort on the right of the person injured to maintain an action 
 for damages. [80 — 82.] 
 
 110. Ill what respects do the Statutes of Limitation differently 
 affect the rights of a person to recover (a) land, (b) goods, of which 
 he has been wrongfully deprived 1 [82.] 
 
 111. Explain and illustrate the application of the Statutes of 
 Limitation to a continuing tort. [82, 83.] 
 
 112. What is meant by "disability," in relation to the Statutes 
 of Limitation, and what is the effect of it / [83, 84, 267.] 
 
 113. To what extent are public officers and authorities specially 
 privileged in relation to actions in tort I Does the privilege extend 
 to their servants and agents ? [84, 85.] 
 
 114. What is the measure of damages in actions for tort (a) in 
 respect of personal injury, and (b) in respect of injury to property ? 
 [86—98.] 
 
 115. On what principles and under what circumstances, if at all, 
 can the verdict of a jury, in regard to the amount of damages given 
 in respect of a personal injury, be disturbed ? [86, 87.] 
 
 116. What considerations may be taken into account by the jury 
 in estimating damages in a case of seduction ? [87, 95, 96, 156, 157.] 
 
 117. What is the proper measure of damages for injury done to a 
 horse through the negligence of a person who had hired it from the 
 owner ? [89.] 
 
 118. A. purchased 1,000 dozen of champagne lying at B.'s wharf 
 at 20s. a dozen, and resold it at 25s. a dozen to the cajjtain of a shiia 
 about to leave England. B. wrongfully refused to deliver np the 
 wine, and converted it to his own use. Discuss the proper measure 
 of damages in an action of trover brought by A. against B. [89.] 
 
 119. A., a colliery owner, wrongfully worked coal lying under 
 the land of his neighbour B. State precisely the proper muasure of 
 damages that should be awarded to B. [90.] 
 
 120. Explain and illustrate in its application to torts the maxim 
 " omnia prcesunumtur contra spoliatorcm.'' [90, 91.] 
 
 121. Explain and illustrate what is meant by (a) "conseipu'ntial 
 damages," and (b) "prospective damages." [91—95.]
 
 294 Questions. 
 
 122. In an action for personal injury, what kind of consequences 
 of the injury can be taken into account in the assessment of damages ? 
 Give illustrations. [91, 92.] 
 
 123. To what extent may damages be awarded for probable future 
 injuries I [93 --95.] 
 
 124. Wliat circumstances may be considered by a jury to he in 
 (a) aggravation, and (b) mitigation, of damages ? Give illustrations 
 in cases of (1) defamation, (2) assault and battery, and (3) trespass. 
 [95—98.] 
 
 125. What is the legal position of persons who have jointly 
 committed a tort ? [98, 99.] 
 
 126. What are the effects of — 
 
 (a) A judgment being given against one of several tort-feasors ; 
 
 (b) A release being given to one of them ; 
 
 (c) A covenant not to sue being made with one of them ; 
 
 (d) Damages being levied upon one of them on a judgment given 
 
 against them all jointly I [98, 99.] 
 
 127. Discuss the proposition that "there is no contribution 
 between tort-feasors." [98, 99.] 
 
 128. Explain and illustrate the application of the remedy by 
 injunction to various kinds of torts. [100 — 109.] 
 
 129. Distinguish between interlocutory and perpetual injunc- 
 tions as remedies in cases of tort, and illustrate the principles on 
 which they will respectively be granted. To what extent is delay 
 in seeking relief a bar to the remedy by injunction ? [100—109.] 
 
 130. Explain the decision in Colls v. Home and Colonial Stores. 
 [102, 103.] 
 
 131. What is meant by a quia timet action, under what circum- 
 stances can it be maintained, and what is the nature of the relief 
 that can be granted in it 1 [105, 106.] 
 
 132. To what extent is either (a) public convenience, or (b) statu- 
 tory authority, a justification of the continuance of a tort '? [35, 106, 
 107, 204—209.] 
 
 133. What is a mandatory injunction, and under what circum- 
 stances will it be granted ? Give illustrations. [107—109.] 
 
 134. A. has put up a new building interfering with B.'s 
 ancient right of light. Advise B. as to the probability of liis getting 
 an injunction ordering the building to be pulled down. [107—109.] 
 
 135. What is the effect on an action of tort, of the death of (a) the 
 plaintiff, or (b) the defendant ? To what extent does it depend on 
 the nature of the tort itself I [110, 111.]
 
 Questions. 295 
 
 136. What is lueaut by " actio personalis moritur cum jyersona," 
 •as applied to actions in tort / State and illustrate the exceptions to 
 this rule. [110,111.] 
 
 137. Explain and illustrate the provisions of Lord Campbell's 
 Act. [t)2, 110, 111, 192—194.] 
 
 138. What is the effect on a right of action in tort of the bank- 
 ruptcy of (a) the person who has sutfered the wrong, or (b) the 
 person who has caused it ? [112.] 
 
 139. Define and analyse "libel" and "slander." In what princi- 
 pal respects do they difi'er from one another ? [115, 116, 121.] 
 
 140. What is meant by " defamatory " statements ? Give illus- 
 trations of what would be considered defamatory, and what would 
 not. [116—120.] 
 
 141. A financier, who is also a candidate for Parliamentary 
 ■election, having been styled a "shady customer" in a leading 
 article of a newspaper of the opposite political persuasion, brings an 
 action for libel against the proprietor, editor, printer, and various 
 newsagents ax-Iio have sold copies of the paper. Indicate the defences 
 which they can respectively set up. [115-117, 127, 128—130, 139.] 
 
 142. Under what circumstances, if at all, can a statement be held 
 defamatory, which taken in its literal sense conveys no offensive 
 meaning whatever? [116 — 120.] 
 
 143. Explain the decisions in Capital and Counties Bank v. Hentij 
 and Nevill v. Fine Art Insurance Co. [116, 118 — 120.] 
 
 144. Is it a libel to write (falsely and maliciously) of a tradesman 
 that the goods he sells are of the worst possible quality 1 [120.] 
 
 145. What is slander of title ? [120.] 
 
 146. What is meant by " special damage" in relation to actions 
 for slander, and what classes of slanders are actionable without 
 proof of such damage ? [l^l-] 
 
 147. Define and illustrate "publication," in connection with a 
 libel or slander. [126.] 
 
 148. A solicitor acting for a client dictates a letter to his type- 
 writing clerk. The letter contains certain statements relating to 
 the person to whom it is addressed, which are defamatory and 
 untrue (though believed to be true by the solicitor at the time 
 of dictating the letter). Is the solicitor liable in an action for libel 
 at the suit of the person to whom the letter is addressed 1 [127.] 
 
 149. What is the liability of a street newsvendor for libels 
 contained in the newspapers he sells I [127.] 
 
 150. A. falsely and maliciously tells his wife that B., another 
 lady, is an adulteress. Can B. maintain an action against A. for this 
 slander? [127.]
 
 296 Questions. 
 
 151. A. falsely and maliciously tells B. that her husband C. has 
 recently committed a criminal offence. Can C. maintain an action 
 for slander against A. ? [127, 128.] 
 
 152. What is meant by "jnstifi cation " as a defence to an action 
 for libel? On what principle does it depend ? [128.] 
 
 153. Has the common saying "the greater the truth, the greater 
 the libel," any application to an action for damages '? [1^8.] 
 
 154. "Wliat is meant by "fair criticism " in relation to the law of 
 libel and slander 1 Illustrate the limitations to which it is subject. 
 [128—130.] 
 
 155. Explain and illustrate the exinessions " actual malice " and 
 " privileged occasion " in relation to an action for libel or slander. 
 [130—137.] 
 
 156. Distinguish between " absolute " and " qualihed " jarivilege 
 in relation to libel and slander, and give instances of each. [130— 
 137.] 
 
 157. What are the functions of a judge and jury respectively in 
 regard to the questions of "privileged occasion '"' and " privileged 
 communication " in an action for libel ? [131.] 
 
 158. In what respects has the ordinary law of libel Ijeen niodified 
 in favour of newspaper proprietors and editors ? [133 — 135, 139.] 
 
 159. C. is an applicant for an appointment in B.'s business. In 
 reply to an inquiry by B. as to C.'s character, A. writes a letter 
 which, amongst other things, contains an untrue defamatory state- 
 ment about C, made, however, by A. in the belief that it is true, 
 and that he ought to mention it. Having written the letter, A. 
 negligently puts it into a wrong envelope, so that it ultimately 
 reaches D., Avho informs C. of its contents. Can C. maintain an 
 action against A. I [137.] 
 
 160. To what extent is a person who repeats (a) a libel or (b) a 
 slander, liable equally with the originator of it? [137, 138.] 
 
 161. A. slandered B. in C.'s hearing. C, without authority, 
 repeated the slander to D., in consequence of which D. refused to 
 trust B. Does an action for slander lie against A., and, if so, why ? 
 [137, 138.] 
 
 162. What is the statutory limitation applicable to actions for 
 libel and slander 1 [139.] 
 
 163. Define and analyse "malicious prosecution." [140.] 
 
 164. What is meant Ijy " Avant of reasonable and probable cause " 
 for instituting a prosecution ? In an action for malicious prosecu- 
 tion (a) on whom does the onus lie of proving, and (b) what are
 
 Questions. 297 
 
 tlie functions of a judge and jury with regard to, the facts material 
 to this part of the case ? [142—144.] 
 
 165. Define " maintenance." In what resjiects does it ditfer from 
 "malicious jirosecution i " [149.J 
 
 166. Exjilain the decision in Bmdlaugh v. Newdecjute. [149, 
 150.] 
 
 167. Illustrate and explain what is meant by a "common 
 interest" in relation to actions for the tort of maintenance. [150, 
 151.] 
 
 168. What is the legal principle on which actions for seduction 
 are based I [152—155.] 
 
 169. What are the possible defences to an action for seduction, 
 and what considerations can be urged in mitigation (or aggravation) 
 of damages ] [152 — 155.] 
 
 170. Frame and discuss a definition of common law fraud or 
 deceit, as a tort, and distinguish it from such misrepresentation as 
 would, in equity, be a ground for rescinding a contract. [158 — 
 168.] 
 
 171. Explain the decisions in Derry v. Peek and Peek v. Gnrney. 
 [158, 167.] 
 
 172. What is the statutory liability of directors of joint stock 
 companies in regard to untrue statements contained in a prospectus 
 inviting subscriptions for shares ] [158 — 160.] 
 
 173. Under what circumstances can a false statement give rise 
 to an action for damages \ [158 — 164.] 
 
 174. Under what circumstances can a man be made liable in tort 
 for the untrue statements of his agent ? [164, 165.] 
 
 175. A., a secretary of a comijany, by false statements induces B. 
 to take shares in the company. Is the company liable for the fraud 
 of the secretary ? [165.] 
 
 176. Does silence ever amount to fraud / [1G6 — 168.] 
 
 177. What is the statutory limitation in the case of actions for 
 deceit, and when does it begin to run ] [168.] 
 
 178. A., an opera-house manager, engages a singer to perform in 
 an opera. B., manager of a rival opera-house, hears of this and 
 offers the singer a sum of money to break her contract with A. and 
 to sing in B.'s opera. She does so, with the result that A. sustains a 
 loss. Can A. maintain an action for damages against B., and, if so, 
 on what principle l [169, 170.]
 
 298 Questions. 
 
 179. Explain the decisions in Lumley v. Gye ; Temperton v. 
 Russell; Quinn v. Leathern; J. Lyons d- Sons v. Wilkins ; Mogul 
 Steamship Co. v. McGregor, Goiu d: Co.; and Allen v. Flood. [169 — 
 175.] 
 
 180. Define and illustrate what is meant by an unlawful con- 
 spiracy and distinguish it from a lawful trade coml)ination. [169 — 
 175.] ^ 
 
 181. Define " negligence." Under what circumstances is it 
 wrongful, so as to give rise to an action for damages in tort '. Give 
 illustrations. [176—184.] 
 
 182. A. lends B. Iris gun to shoot game with. If the gun 
 explodes and injures B., would A. be liable in damages ? [179, 180.] 
 
 183. It is sometimes said that every dog is legally entitled to one 
 bite. Discuss and exj^lain this statement. [180, 181.] 
 
 184. A., a neighbour permitted to cross B.'s laud in order to go 
 by a short cut to his own house, goes on to B."s land in the dark and 
 falls into an unfenced pit. Discuss the circnmstances, if any, which 
 would entitle him to maintain an action for damages against B. 
 [182, 183, 199.] 
 
 185. Explain and illustrate what is meant by "contributory 
 negligence." Is it always a good defence ? Give illustrations. 
 [184—187.] 
 
 186. An omnibus comes into collision with a hansom cab, botli 
 dri\ers being to blame for negligence in driving. The hansom is 
 damaged and a person in it is injured in the collision. Has (a) the 
 owner of the hansom, or (b) the "fare," any remedy in damages 
 against the omnibus company 1 [184 — 186.] 
 
 187. What is the effect of the decision in The Ticrnina ? [185, 
 18G.] 
 
 188. A., a landowner, negligently allows a fence on his land 
 adjoining a public highway to get into a rotten condition. B., a 
 little boy, attempts to climb the fence (which he has no right to 
 do) ; the fence falls down and injures him. Can he recover damages 
 from A. ? [186, 199.] 
 
 189. Illustrate the principle that in an action founded on negli- 
 gence the negligence of the defendant must be the proximate cause 
 of the damage. [187, 188.] 
 
 190. Will (a) negligence, (b) contributory negligence, ever be 
 presumed, or must they be proved in every case ] and, if so, on whom 
 does the onus lie and what are the functions of the judge and jury 
 respectively in relation thereto? [18'.) — 191.]
 
 Questions. 299 
 
 191. Define " luiisauce." Under what circumstances does a 
 nuisance give rise to an action for damages ? [195, 196.] 
 
 192. Distinguish between public and private nuisances, and give 
 illustrations of each. [195—237.] 
 
 193. Explain the decisions in Ghasemore v. Richards; Bradford 
 Corporation v. Pichles; and Ballard v. Tomlinson. [196, 197, 225— 
 227.] 
 
 194. What is the liability in tort of a highway authority for 
 injury to an individual by reason of the highway being allowed to 
 fall into disrepair '? [199, 200.] 
 
 195. In an action for damages in respect of a nuisance, is it a 
 good defence to show that the plaintiff knew of it and nevertheless 
 delilierately went to live in its vicinity 1 [206.] 
 
 196. How, if at all, can the right to commit a nuisance be 
 acquired ? [206, 207.] 
 
 197. What is the liability of the landlord and tenant res]3ectively 
 by reason of the premises' lieing in such a ruinous condition as to 
 constitute a nuisance 1 [210, 211.] 
 
 198. Give illustrations of nuisances affecting incorporeal heredita- 
 ments. [211—237.] 
 
 199. To what extent is a man entitled to lateral support from his 
 neighbour's land ? [212—218.] 
 
 200. Explain and illustrate the law relating to " rights to light 
 and air." [218—224.] 
 
 201. Explain and illustrate the principle that "a man cannot 
 derogate from his own grant," with special reference to right to 
 light. [220.] 
 
 202 A. sells a piece of land at the l>ack of his house to 15., and a 
 month' later sells the house itself to C. In the absence of any 
 express agreement, can C. prevent B. from erecting on the land he 
 has bought a building which will obstruct the light formerly 
 enjoyed by the back windows of the house 1 [220, 221.] 
 
 203. Explain and illustrate the provisions of the Prescription 
 Act, 1832, with reference to rights to light and i.rivate rights of 
 way. [218, 219, 221, 222, 229.] 
 
 204. To what extent is there such a thing as a "right to air"? 
 [219, 222, 223.] 
 
 205. A. grants a lease of a house and garden to B. At the back 
 of the garden is a meadow belonging to A., and nut included m the
 
 300 Questions. 
 
 lease. Is A. entitled to build on this meadow a house overlooking 
 the garden leased to B. ; and, if so, on what principle ? [224.] 
 
 206. Explain and illustrate the law relating to rights to waLer. 
 [224—227.]' 
 
 207. How can a private ri.^ht of way arise I Give illustrations. 
 [227—229.] 
 
 208. What is a right of conunon ? Distinguish between rights of 
 common appendant, ap^jurtenant and in gross. [230 — 232.] 
 
 209. Distinguish between the various forms of the right of 
 fishery. Have the public in general any right to fish in rivers ? 
 [233—236.] 
 
 210. What is a ferry, and what conduct amounts to a disturbance 
 of it 1 [236, 237.] 
 
 211. Explain and illustrate what is meant by the "abatement" 
 of a nuisance. Under what circumstances must this remedy be 
 preceded by notice to the person committing the nuisance ? 
 [237—239.] " 
 
 212. Branches of a tree growing in A.'s garden overhang tlie 
 intervening wall and spread over into B.'s garden. Is B. entitled to 
 cut them down 1 [239.] 
 
 213. Under what circumstances, and by whom, may (a) an 
 encroachment on a common, (1)) an obstruction to a public highway, 
 be abated ? [239.] 
 
 214. What are the rights and remedies of a reversioner in 
 respect of nuisances to the jn'operty ? [240.] 
 
 215. Define and illustrate — 
 
 (a) Assault ; 
 
 (b) Battery : 
 
 (c) Fal.se imprisonment. 
 
 Can a threat ever amount to an assault I [241 — 245.] 
 
 216. What is mayhem ? [243.] 
 
 217. What are the defences to an action founded on as-^ault, 
 battery or false imprisonment ? Give illustrations. [245 — 257.] 
 
 218. Under what circumstances does an action lie against a 
 magistrate who has exceeded his jurisdiction and wrongly imposed a 
 sentence of imprisonment ? [247 — 250.] 
 
 219. Are there any limits to the power of courts to commit for 
 contempt of court l [251.] 
 
 220. Under what circumstances can (a) a justice of the peace, 
 (b) a constable, and (c) a private individiial, lawfully arrest a person i 
 Give illustrations. [252—256.]
 
 Questions. 301 
 
 221. What is a trespass qnare clausum f regit >. Give illustrations. 
 [2.58—260.] 
 
 222. What are the defences to an action for trespass to another 
 man's land ? Explain what is meant hy the plea of liberum 
 tenementum. [260.] 
 
 223. What is meant by a trespasser ah initio ? E.\plain tht- 
 decision in the Six Carpenters' Case. Does the principle apply to 
 goods as well as to land ? [261, 276, 277.] 
 
 224. What interest in the land must a plaintiff have in order to 
 maintain an action for a trespass to it 1 Can an action for trespass 
 be maintained by one of two joint owners against the other I 
 [261—263.] 
 
 225. What is distress rfcUrtf((/(i/(jaA-a«< ? [-64.] 
 
 226. Detine and illustrate "dispossession." [265.] 
 
 227. To ■what extent can either of the parties to an action for 
 the recovery of land set w^ jus tertii 'I [265, 266.] 
 
 228. What is the period of limitation for actions for the recovery 
 of land, and when does it begin to run? [267, 268.] 
 
 229. Define and illustrate trespass to goods. What is wrongful 
 conversion 1 [269—273.] 
 
 230. Under what circumstances does a bona fide purchaser of 
 goods from a person who obtained them fraudulently from the true 
 owner get a good title to them I [270, 271.] 
 
 231. Explain the legal effect of a sale of goods in market overt. 
 [271, 272, 280.] 
 
 232. Illustrate the possible defences to an action for trespass to 
 another's goods. [272, 273.] 
 
 233. What is meant by (a) '• constructive possession " and 
 (b) "possession by relation"? [273, 274.] 
 
 234. Explain the decision in Armory v. Dclamirie. [273, 275.] 
 
 235. A. lends an umbrella to B., who leaves it in the hall of his 
 club, whence it is removed by C, who now chiims that it is his. 
 Which of the two, A. or B., has the right to maintain an action 
 against C. ? [275, 276.] 
 
 236. Under what circumstances can one joint owner of a chattel 
 maintain an action for trespass in respect of it against the other 
 joint owner ? [276.] 
 
 237. Enumerate and illustrate the various remedies that exist in 
 respect of trespass to goods. [277 — 271).]
 
 INDEX. 
 
 A. 
 
 ABATEMENT 
 
 of nuisance, 237. 
 
 cuttiiii,' overhanging trees, 239. 
 pulling down buildings, ib. 
 
 not proper renxedy to prevent prospective nuisance, 238, 
 
 239. 
 of commoner in respect of overstocked 
 warren, 239. 
 nor of member of public, in respect of nuisance on 
 highway, 239. 
 after failure to ol)tain a mandatory injunction, 239. 
 of action. See Death. 
 
 ABROAD, 
 
 liability for torts committed, 42 et seq. 
 
 ABSOLUTE RIGHT, 
 
 infringement of, without damage, constitutes a tort, 7, 9. 
 
 ACCIDENT, 
 
 if inevitable, not actionable, 15 et seq. 
 And see Negligence ; Nuisance. 
 actionable, if preventable, 16. 
 
 when occurrence of, nrirad facie evidence of negligence, 189, 
 
 190. 
 
 ACT OF GOD 
 
 excuses what would be otherwise actionable, \1 et seq. 
 
 ACT OF THIRD PARTY, 
 
 where damage partly caused by, 20. 
 
 ADOPTION. See Ratification. 
 
 ADVERTISEMENTS, 
 
 criticism of, privileged, 130. 
 
 ADVICE. 
 
 confidential, a privileged communication, 135, 1.3C. 
 
 L.T. .X [ 1 1
 
 Index. 
 
 AGENTS 
 
 cannot shelter themselves behind their principals, 49. 
 general lialjility of principal for torts of, 49, 52. 
 
 where agent e.vpressly employed to commit tort, 49. 
 where agent (not being a servant) incidentally commits 
 tort by an act within the scojie of his authority and 
 for l)enelit of ^^rincipal, 52 et seq. 
 no liability in general for collateral negligence of 
 agent, 52. 
 unless he is a servant, ib., 56 et seq. 
 where agent is a servant the principal's liability is 
 increased, 56 et seq. 
 who is a servant, ib. 
 wilful acts of servants, 59. 
 arrests by, 60. 
 assaults by, 61. 
 injuries l)y servants to fellow servants, 63 et seq. 
 And see Master and Servant. 
 
 AGGRAVATION. See Damages. 
 
 AIR, 
 
 when action lies for obstruction of, 219, 222. 
 
 ALIEN ENEMY 
 
 cannot sue, 44. 
 
 AMBASSADORS 
 
 not liable for torts, 45. 
 
 but may waive privilege, ib. 
 
 ANIMALS. See Ferocious Animals. 
 injuries done to, 269, 273. 
 trespasses of, 259. 
 distraining damage feasant, 264.' 
 injuries to, while trespassing, when tortious, 272. 
 killing, in self-defence, justifiable, 273. 
 
 ANNOYING 
 
 by persistently following, 172. 
 
 ARREST. See Imprisonment. 
 
 ARTIFICIAL WATERCOURSE. See Watercourse. 
 
 ASSAULT AND BATTERY, 
 
 definition of assault, 242. 
 
 menacing, ib. 
 
 ability to do harm, necessary, ib. 
 
 attempt necessary, 243. 
 
 committed in sport, not actionalde, iJ). 
 definition of battery, ib. 
 
 may be occasioned by anything wrongly and wilfully or 
 negligently set in motion by defendant, 244. 
 
 Viattery, voluntarily suffered, not actionable, 243. 
 
 [2]
 
 Index. 
 
 ASSAULT AND BATTERY— continued. 
 definition of battery— continued. 
 
 injuries intiicted through defective tramway, 244. 
 
 caused by inevitable accident, excusable, ib. 
 
 mayhem, 243. 
 
 justification for, 245 et seq. 
 
 self-defence, justifiable, 246. 
 
 committed in mere retaliation, not justifiable, ih. 
 defence of jaroperty, ih. 
 
 of pupil or child for sake of correction, 247. 
 
 in order to stop breach of the peace, 246, 254. 
 bv naval or military officers, 247. 
 
 in order to arrest night offender, felon, malicious trespasser, 
 or vagrant, 255. 
 
 in order to expel disturber of congregation, justifiable, 256. 
 proceedings before justices release civil proceedings, 256. 
 responsibility of master for, by servant, 61. 
 amount of damages, 257. 
 
 aggravation a mitigation, ib., and 95, 97. 
 limitation of action for, 258. 
 
 B. 
 
 BAILEE. See Trespass (2). 
 
 BAILOR 
 
 may bring trespass against third party or purchaser, where 
 bailee has wrongfully delivered or sold goods, 270, 274. 
 unless sale in market overt, 271. 
 
 and even then if goods stolen and thief convicted, 272. 
 
 BANKRUPTCY, 
 
 effect of, on the right to sue or the lial)dity to be sued tor 
 tort, 112. 
 
 BATTERY. See Assault axd Battery. 
 
 BESETTING OR WATCHING HOUSE 
 
 for purposes of coercion, 172. 
 
 BODILY INJURIES. See Assault. 
 caused by nuisances. See Nuisance. 
 
 negligence. See Negligence. 
 
 false imprisonment. See Imprisonmext. 
 
 BRICK-BURNING 
 
 may be an actionable nuisance, 204. 
 
 c. 
 
 CABDRIVER, 
 
 who liable for negligence of, 57. 
 
 CAMPBELL'S (LORD) ACT, 192 et .^eq. 
 
 gives ri^ht of action to relatives of persons killed througli 
 another's default, ih. 
 
 X 2 [ 3 1
 
 Index. 
 
 CAMPBELL'S (LORD) ACT- continued. 
 
 who may sue in case executor does not, 193. 
 when action maintainable, ib. 
 
 for whose benefit maintainable, ih. 
 jury must apportion damages, 192. 
 action can only be maintained in cases where deceased himself 
 
 could have sued had he lived, 193. 
 plaintiffs must have suffered some pecuniaiy loss attriljutable to 
 
 the relationship, ib. 
 not maintainable when deceased received compensation before 
 
 death, 194. 
 death must be caused by the act for which compensation 
 
 claimed, ib. 
 action must be brought within twelve months, ib. 
 effect of deceased having insured his life, ib. 
 
 CANDIDATE 
 
 for office, character of, privileged communication, 136. 
 
 CATTLE OR SHEEP. See Trespass. 
 
 when injury is done to, by dog, scienter need not be shown, 181. 
 word cattle includes horses, ib, 
 distraining damage feasant. 264. 
 
 CAVEAT EMPTOR, 166 et seq. 
 
 CHARACTER, 
 
 fraudulent, when actionable, 161. 
 
 of servant, when a privileged communication, 136. 
 
 candidate for office, given to a voter or elector, a privileged 
 communication, ib. 
 evidence of plaintitt's bad or irritating character or conduct in 
 
 mitigation of damages in defamation, 96. 
 of daughter's loose character in mitigation of damages in 
 
 seduction, ih. 
 
 CHATTELS, 
 
 trespass to, and conversion of, 269 et seq. 
 
 See Trespass ; and see Wrongful Conversion. 
 
 CHILD, 
 
 en ventre cannot sue for tort, 44. 
 
 CHILDREN 
 
 of deceased parent, action In-. See Campbell's (Lord) Act. 
 
 CHURCy BELLS, 
 
 injunction to restrain ringing of, 102, 198. 
 
 CLERGYMAN, 
 
 imputing imchastity to a beneficed, is acliouablo jicr se, 125. 
 
 COERCION 
 
 })y illegal means, 169 — 17">. 
 picketing, how fur lawful, 172. 
 
 L 4 ]
 
 Index. 
 
 COMMOxV, 
 
 definition of, 230. 
 ilistuibiince of, ih. 
 
 by putting on nncomnionable beasts, ih. 
 surcharging, ib. 
 enclosing, 231. 
 how far lord may enclose, ih. ct seq. 
 
 Commons Law Amendment Act, 1893, prevents further 
 inclosures except by leave of Board of Agriculture and 
 Fisheries, 232. 
 
 COMMON EMPLOYMENT, 
 
 meaning of, 64 et seq. 
 
 See Master and Servant. 
 there must be a common master, 67. 
 
 CONCEALMENT, 
 
 when fraudulent. See Fraudulent Concealment. 
 
 CONDUCT, 
 
 evidence of plaintiffs objectionable, in mitigation or aggravation 
 of damages, 95 et seq. 
 
 CONFIDENCE. Sec Misfeasance. 
 
 CONSEQUENTIAL DAMAGES. See Damages. 
 
 CONSPIRACY, 169 et seq. 
 
 not actionable where object is to induce persons not to employ 
 defendant, 170, 173. 
 aliter where object is to induce persons to break contract, 
 general effect of authorities, 174. 170, 174. 
 
 CONSTABLE 
 
 cannot, in general, arrest without a warrant, 255. 
 
 must have warrant with him, 252. 
 may arrest without warrant — 
 
 on reasonalile suspicion of felony, 252. 
 for breach of peace, even after affray over, in order to take 
 offender before a justice, ih. 
 malicious injuries, 255. 
 acts of vagrancy, 255. 
 brawling in church, 256. 
 protected if acting ministerially for a court having juris- 
 diction (or ^nV/uf /ft «e jurisdiction in certain cases), 250. 
 special protection of, in executing warrants of justices without 
 
 jurisdiction, ib. 
 limitation of actions against, 258. 
 
 CONTINUING TORTS, 
 
 commencement of period of limitation in, 82. 
 fresh action may be brought lor, until they are stopped, 94 
 et seq. 
 
 [5]
 
 Index. 
 
 CONTEACT, 
 
 torts connected with, 36 et seq. 
 
 who may he sued for torts connected Avith. 37 et seq. 
 
 negligence of professional men, 38. 
 
 in performance of duties undertaken gratuitously. 40 et seq. 
 
 railway accident where passenger hooked V)y another company 
 
 than that which conveys him, 40. 
 gratuitous hailees, 40, 41. 
 servant can sue railway company wlm have l;>ooked him 
 
 although master paid the fare, 38. 
 third party injured hy a negligently constructed machine 
 
 or a neglig 
 
 maker, 39. 
 
 (litter, as to deleterious C[uack medicines, 39. 
 aliter, where fraud, 39. 
 waiver of tort and action on implied, 279. 
 
 CONTRACTOE, 
 
 employer not in general liable for nuisance committed V'v, or 
 negligence of, 52 et seq, 56. 
 exceptions, 52 — 55. 
 
 CONTRIBUTION, 
 
 how far a right to, between tort-feasors, 98. 
 
 CONTRIBUTORY NEGLIGENCE. See NEGLIGE^-CE. 
 CONVERSION. See Wroxgful CoxvERSIO^. 
 
 CORPORATION 
 
 lialile for torts, 48. 
 
 even for those depending on fraud, ih. 
 may sue for a tort unless it merely affects its reputation, 44. 
 is generally liable for torts, 48. 
 
 COUNSEL, 
 
 opinion of, no excuse for malicious prosecution, 143. 
 statements of, privileged communications, 133. 
 
 CRIME. See DeFx^matiox. 
 CRITICISM. So: Defamatiox. 
 
 DAMAGE, 
 
 witliout wrongful act, not actionable, 8 et seq. 
 when necessary, ih. 
 
 if it would have happened even if the wrongful act had not 
 l)een done, may still be actional.ile, 26 it seq. 
 
 DAMAGE FEASANT, 
 
 cattle may be distrained when trespassing, 264. 
 unless tended at time, ih.
 
 Index. 
 
 DAMAGES, 
 
 measure of, in actions of tort, 86 et seq. 
 (1) For injuries to person and reputation, il>. 
 lor false iinprisonmeut, 87. 
 seduction, ib. 
 assault and battery, 88. 
 defamation, ih. 
 excessive, 86. 
 
 mistake or ill-feeling of jury, 86. 
 too small, 87. 
 
 aggravation and mitigation of, 95 et seq. 
 for seduction, ib. 
 defamation, 96. 
 
 causing suspicion of insolvency, 98. 
 false imprisonment, 97. 
 battery, ib. 
 consequential damages, 91 ef seq. 
 lo.ss of business, 91, 92. 
 mental shock, 91. 
 medical expenses, ih. 
 
 loss of property through mental agitation, ih. 
 under Lord Campbell's Act, 92. 
 injury to trade by defamation, 92. 
 prospective damages may be given, 93 d seq. 
 under Employers' Liability Act, 81. 
 (2) For injuries to property, 88 et seq. 
 compensatory in character, ib. 
 injury to horse, 89. 
 for wrongful conversion, i?*. 
 
 loss of use of chattel by reason of defendant's negligence, 90. 
 cost of repairing chattel, ib. 
 trespass to land, ib. et seq. 
 
 prospective damages should be included, 93 et seq. 
 nlitcr, where tort is continuing, 94. 
 
 or where distinct torts, one to person and the other to 
 property, 95. 
 aggravation and mitigation, 95 et seq. 
 insolent trespass, 97. 
 wrongful seizure, 98. 
 causing suspicion of insolvency, 98. 
 
 wrongful seizure of goods causing suspicmn of in- 
 solvency, 98, 
 consequential damages, 91. 
 
 must not be too remote, ib. 
 infectious disease, 93. 
 collisions at sea, i7). 
 
 having lieen obliged to pay damages to third jiaity, 93. 
 continuing torts, 94. 
 
 presumption of amount of damage against a wrongdoer, 90. 
 joint wrongdoers are jointly and severally liable for, 98. 
 
 DAMNUM, 
 
 definition of, 8. 
 
 following injuria must not be too remote, 24 et seq. 
 
 [ ' ]
 
 Index. 
 
 DAMNUM ABSQUE INJURIA, 8 et seq. 
 
 DANGER, 
 
 trespass imcler the influence of a pressing, 16. 
 
 DANGEROUS 
 
 substances brought on to land must be kept at peril of 
 
 bringer, 17 — 20. 
 animals. See Ferocious Animals. 
 works, principal liable for contractor's defaults, 52 ei seq. 
 
 DAUGHTER, 
 
 action for seduction of, 152. 
 See Seduction. 
 
 DEATH, 
 
 effect of, on the right to sue or liability to be sued for tort, 110 
 et seq. 
 
 DECEASED PERSON. See Campbell^s (Lord) Act. 
 
 DECEIT, 158 et seq. 
 See Fraud. 
 
 DEFAMATION, U5 et seq. 
 oral or written, ib. 
 definition, ib. 
 when actionable, ib. 
 when a corj^oration may sue, ib., 120. 
 factors necessary to sustain an action for, ib. 
 disparagement, what is, 116. 
 construction of words in natural sense, ib. et seq. 
 ironical words, 117, 118. 
 waxen etfig}- in chamber of horrors, 118. 
 where no disparagement no amount of damage will give a cause 
 
 of action, 119 et seq. 
 disparagement of rival tradesman's goods gives no cause of 
 
 action, 120. 
 publication, 126. 
 
 by telegram or postcard addressed to person libellt-d, 127. 
 dictating to clerk, ib. 
 newsvendors, ib. 
 to or by husband or wife, ib. 
 functions of court and jury as to publication, 126. 
 malice, 130. 
 
 truth of defamatory statement a good defence, 128. 
 privileged communications, i;30. 
 
 privilege may Ije absolute or only prima facie, ib. et seq. 
 functions of court and jury, 131. 
 parliamentary proceedings, 132. 
 judicial proceedings, 133. 
 speeches at county and town councils, etc., ib. 
 reports of public meetings, 134. 
 legal proceedings, 133. 
 (/Hrtst'-judicial proceedings, 134. 
 
 [8]
 
 Index. 
 
 I )EFAM ATIOX— co?i;mHe(?. 
 
 privileged cominuuications — continued. 
 
 where social and moral duty to speak, 135. 
 
 warning a guest of character of person in his empl')y, ih. 
 contidential advice, 135. 
 
 character of servant given to intending employer, 136. 
 candidate, ih. 
 l^ublic officer, ih. 
 statement made to a person having a corresponding 
 interest, 136. 
 aliter, where made broadcast, 137. 
 criticism, 128. 
 
 of public men, 129 et seq. 
 sending privileged communication by telegram or postcard 
 or in wrongly addressed envelope, 137. 
 limitation of actions for, 139. 
 damages. See Damages. 
 
 actual damage, when necessary, in slander, 121 et seq. 
 when too remote, ib., 122. 
 
 damage caused by plaintiff himself repeating the slander, 
 imputation of unchastity, 123. 122. 
 
 criuie actual damage of itself, ib. 
 impossible crime insufficient, 124. 
 must be of punishable crime, ib. 
 mere suspicion insufficient, ib. 
 imputation of mere breach of trust, 123. 
 unfitness for society, 124. 
 business, ib. 
 office, ib. et seq. 
 repetition of defamation, 137. 
 
 in verbal slander where the damage is wholly in conse- 
 quence of the repetition, 138. 
 printing of verbal slander, ib. 
 newspaper proprietors protected, 139. 
 injunction to restrain, 104, 105. 
 
 DEFECT. See Fraud. 
 DEFENCE. See Assault. 
 
 DESIGNS, 
 
 copyright in. See Copyright. 
 
 DETINUE, 
 
 action of, 277 et seq. 
 
 judge may order return of specific goods in, ib. 
 
 DISABILITY 
 
 to sue or to be sued for tort, 44 et seq. 
 See Limitation. 
 
 DISPARAGEMENT 
 
 by trader of rival's goods gives no cause of action, 120. 
 And see Defamation. 
 
 [ 9]
 
 Index. 
 
 DISPOSSESSION. 
 
 definition of, 265. 
 
 plaintiff must rely on strengtli of his own title, ih. 
 
 mere possession evidence of title for defendant, iJi. 
 
 plaintiff's title need not l>e indefeasible, ib. 
 
 jus fertii available by defendant, but not Ijy plaintitf, ih. 
 
 landlord claimant need not prove his title, ib. 
 
 tenant may show expiration of landlord's title, ib. 
 
 master and servant, ib. 
 
 licensor and licensee, ib. 
 
 claimant's title may be legal or equitable, ib. 
 
 limitation, 267. 
 
 disability, ib. 
 
 acknowledgment of title, ib. 
 
 ecclesiastical corjiorations, ib. 
 
 commencement of period of, 268. 
 
 discontinuance of possession, ib. 
 
 mere entry and continual assertion of claim no bar to 
 running of statute, ih. 
 
 DOGS, 
 
 noisy, 203. 
 
 liability of owner for injuries by. Sec Ferocious Animals. 
 
 killing in self-defence, 273. 
 
 defence of sheep or cattle, ih. 
 
 game, when justifiable, ib. 
 
 DOOE, 
 
 careless shutting, of railway carriages, 184. 
 contributory negligence by leaving hand on, ib. 
 
 E. 
 
 EASEMENT, 
 
 what is an, 211. And see Nuisaxce. 
 
 grantee of, may enter upon servient tenement in order to 
 repair, 260. 
 
 EJECTMENT. See Dispossession. 
 
 EMPLOYERS' LIABILITY ACT, 71- 74. 
 
 ENGINES 
 
 near highway. See Nuisance. 
 
 ENGRAVINGS. Sec Copyright. 
 
 EX DAMNO SINE INJURIA, Etc., 9 et seq. 
 
 F. 
 
 FALSE IMPRISONMENT, 241, 245. 247—258. 
 See Imprisonment. 
 
 FALSE REPRESENTATION. Sec Fraud. 
 
 [ 10 ]
 
 Index. 
 
 FELLOW SERVANTS. See Master and Servant. 
 
 FEL0N7, 
 
 remedy by action for, suspended until criminal trial ended, 27 
 how suspension may be ett'ected, ib. et seq, 
 
 FENCES, 
 
 non-liability for trespass of cattle if adjoining owner bound to 
 
 keep in repair, 260. 
 liability for injuries caused by dangerous, 199. 
 
 FEROCIOUS ANIMALS, 
 
 liability for injuries caused by, 180 et seq. 
 scienter the gist of the action for, ih. 
 
 presumption of scienter, ih. 
 
 Avhen scienter not presumed, ib. 
 
 proof of scienter, ib. 
 
 scienter, when sheep or cattle worried liy dog need not be 
 j)roved, 181. 
 
 FERRY, 
 
 definition of right of, 236. 
 duties of owner of, ib. 
 disturbance of, 237. 
 
 FIREWORKS, 
 
 near highway. See Nuisance. 
 
 FISHERY, 
 
 rights of, detined, 233. 
 oiigin of rights of, it). 
 cummon of, 234. 
 public rights of, ib. 
 meaning of " free fishery," 235. 
 several fishery m tidal waters, ib. 
 copyhold fisheries, 236. 
 disturbance of, ib. 
 
 FLOODS, 
 
 liability for, 17—20. 
 
 where damage from is partly attriltutable to vis nuijor, 26. 
 
 FOLLOWING 
 
 persons for purposes of coercion, 172. 
 
 FOREIGN COUNTRY, 
 
 torts committed in, when remediable in England, 42 et seq. 
 
 FOREIGN SOVEREIGNS 
 
 not lial)le for torts, 45. 
 
 but may waive the ])rivil('ge, ?V> 
 
 FRAUD, 158 et seq. 
 definition of, ib. 
 moral delin(|uency necessary, ib. 
 
 . e.xception to necessitv for moral delinrpiencv mode by 
 Directors' Liability "Act, 1890, 158. 
 
 [ 11 ]
 
 Index. 
 
 FRAUD — continued. 
 
 negligent misrepresentation not the same as fraudulent mis- 
 representation, 163. 
 but may be ground for rescinding a contract, 167. 
 
 or a good defence to action for specific performance, ib. 
 mere silence not sufficient to give rise to action for deceit, 166. 
 where deceit and malice present, it is immaterial that thei'e was 
 no intention by defendant to reap any benefit, 163, 164. 
 lying i^ractical joke, 163. 
 
 inducement to commit a crime, 164. 
 when actionable, 160 et seq. 
 
 actual damage essential, 160 et seq. 
 
 not necessary that fraudulent statement should have been 
 made to jilaintitf, if intended to be acted on by him, 161. 
 false representation of value of business to a purchaser, 162. 
 soundness of a dangerous instru- 
 ment, ib. 
 fraudulent prospectus, ib. et seq. 
 
 lying statements as to orders of superior authority {Trans- 
 vaal Raid Case), 164. 
 liability for fraud of agent, ib. et seq. 
 
 fraud must have been in relation to some matter within 
 
 the agent's authority, 165. 
 honest misstatement by agent does not render principal 
 liable, 165. 
 fraudulent character must be in writing to be actionable, 161. 
 warranty of authority not to be confu.sed with fraud, 167. 
 
 nor careful concealment of defects in order to induce a 
 contract, 168. 
 limitation, 168. 
 
 FRAUDULENT CONCEALMENT, 
 
 mere abstinence from mentioning a known defect is not action- 
 able as a tort, 166—168. 
 nor industrious concealment, 168. 
 
 but both may be ground for setting aside or resisting 
 performance of a contract, 167, 168. 
 
 G. 
 
 GAME, 
 
 property in, not absolute, 269. 
 
 killing dog in order to jjreserve, when justifiable, 273. 
 
 GOODS. See Trespass ; Wrongful Conversion ; Negligence. 
 
 GRATUITOUS DUTIES, 
 
 when misfeasance in performance of, gives rise to an action, 40. 
 
 GUN, 
 
 injury to third party by cxjilosion of a warranted, 162. 
 accidents caused by, without negligence, 17. 
 
 L 12 ]
 
 Index. 
 
 H. 
 
 HIGHWAY, 
 
 obstruction of, 10, 198. 
 
 dedication of, to public not a grant of the land, 2G2. 
 trespass may be maintained by grantor of, for unreasonable use 
 of it, ex. fji:, obstructing his right of sporting, 259, 262. 
 
 HORSE, 
 
 accident caused by a runaway, when excusable and when 
 
 not, 16, 17. 
 injuries to, by dog, 181. 
 measure of damages for injury to, 89. 
 
 HOUSE, 
 
 liability for ruinous state of. See Nuisance. 
 
 HUSBAND 
 
 liable for torts of wife, 48. 
 not entitled to imprison his wife, 247. 
 or to sue her for tort, 44. 
 
 I. 
 
 ICE, 
 
 when a public nuisance, 24 et seq. 
 
 IMMORALITY. See Defamation. 
 
 IMPRISONMENT, 
 
 what constitutes, 245. 
 
 moral restraint constitutes, ib. 
 
 total restiaint necessary, ih. 
 
 by judges and magistrates, 247 et seq. 
 
 absolute immunity of judges of superior courts for, 247. 
 immunity of judges of inferior courts acting within their 
 jurisdiction, ib. 
 what constitutes jurisdiction, 248. 
 2)rimd facie jurisdiction suthcient, 249. 
 no action lies even where jurisdiction exceeded unless 
 conviction is set aside, 250. 
 nor against gaolers, constables, and others 
 executing the judge's order, ib. 
 imprisonment for contempt, 251. 
 
 by justices of the peace for breach of the 
 peace, 252. 
 by private persons and constables, 252 et seq. 
 
 arrest of suspected felon, when justitialile, 252 et seq. 
 what suspicion sutticieut, 25."?. 
 In'eakers of the peace, 252, 253. 
 night offenders, 255. 
 malicious injure rs, ib. 
 vagrants, ib. 
 
 acts of vagrancy, ib. 
 interrui)ter of divine service, 25C. 
 
 [ 1:5 1
 
 Index. 
 
 IMPRISONMENT— coHfiHHcY?. 
 
 bv private persons and constables — continued. 
 
 particular powers of arrest given to individuals, 256. 
 otticers, 247. 
 parents, ib. 
 
 no power given to husband to imprison wife, ib. 
 exceptional cases in which a constable may arrest without 
 warrant, 252. 
 may arrest wherever a private person can, ib. 
 cases of suspected felony where no felony has in fact 
 been committed, 253. 
 habeas corpus, 258. 
 limitation of action for, 258. 
 
 in cases of justices and constables, ib. 
 damages for, 257. 
 
 INCORPOREAL HEREDITAMENT, 
 
 injury to. See Support ; Light ; Watercourse ; Wat ; 
 Common. 
 
 INEVITABLE ACCIDENT. See Accident. 
 
 INFANT, 
 
 generally lialde for his torts, 45 ef seq. 
 aliter if founded on contract, ib. 
 
 for fraud or malice if so young as to be mentally 
 incapable of fraud or malice, 45. 
 
 INJUNCTION, 
 
 remedy by, 100 et seq. 
 
 interlocutory or perpetual, ib. 
 
 injuries remediable by, ib. 
 
 no.xious fumes, lOL 
 
 noise, ib. 
 
 church bells, 102. 
 
 obstruction of light and air, ib. 
 
 cases where damages given instead, ib. 
 
 general rule as to granting of an, 100 ct seq. 
 
 how far granted for a mere trespass, 103. 
 
 pollution of lake, 104. 
 
 deprivation of support, ib. 
 
 trade mark, patent, and copyright, ib. 
 
 when granted to restrain libel, ib. 
 
 interlocutory, rarely granted to restrain a liljcl, 105. 
 
 where injury merely threatened, 105. 
 
 "ranted even where it will inconvenience public, lOG 
 
 mandatory, 10/. 
 
 modern form of, 109. 
 delay, ib. 
 
 INJURIA, 
 
 meaning of, 9. 
 
 INSANITY, 
 
 imputation of. See Defamation. 
 
 [ 1^]
 
 Index. 
 
 INSOLVENCY, 
 
 imputation of. See Defamation. 
 
 INTENTION, 
 
 not always material in torts, 15 ct i<e'i. 
 
 INTIMIDATION, 
 
 when actionable, 169 et seq. 
 
 INVENTOR. See Patent. 
 
 INVOLUNTARY TORTS, 
 
 wlieu actionable, 15, 16. 
 
 JOINT OWNERS, 
 
 trespasses of, towards each other, 263, 276. 
 
 JOINT TORT-FEASORS, 
 liability of, 98. 
 what rights of contribution between, ib. 
 
 JUDGE, 
 
 statements of, absolutely privileged communications, 133, 248. 
 powers of, to imprison. See Imprisonment. 
 
 JUDICIAL PROCEEDINGS, 
 
 how far privileged communications, 133. 
 
 JURISDICTION, 
 
 torts committed outside, 42. 
 
 JUS TEETII, 
 
 defendant in ejectment may set up, but not claimant, 265. 
 
 JUSTICE OF THE PEACE. See Imprisonment. 
 
 JUSTIFICATION. See Defamation ; Assault ; Trespass ; Im- 
 prisonment. 
 
 L. 
 
 LANDLORD, 
 
 title of, cannot be disputed by tenant, 266. 
 when liable for nuisance on demised premises, 210 et seq. 
 occupation of servant of, ecpiivalent to personal occupation, 2(16 
 et seq. 
 
 LECTURES. See Copyright. 
 
 LILEL. See Defamation ; Injunction. 
 
 1 1^' 1
 
 Index. 
 
 LICENSEE, 
 
 a mere, stands in the position of one of the family as regards 
 
 injuries caused by nuisances, 182. 
 possession of, is the possession of the licensor, 266. 
 
 LIEN, 
 
 sale of goods held under, a wrongful conversion, 274. 
 
 LIGHT AND AIR, 
 
 no right to, ex jure naturci', 218. 
 
 right to, can only be by prescription, grant or leservation, ih. 
 in general no right to air can be gained, except by express 
 grant, 219, 222. 
 aliter for access of air through defined openings or 
 passages, ih. 
 what amount of damage necessary to support action, 219, 223. 
 where the riyht arises by express grant depends on con- 
 struction of the grant, 223. 
 where the right arises by implied grant or prescription the 
 sole question is whether the deprivation amounts to a 
 nuisance, 223. 
 injunction for deprivation of, 116. 
 where damages instead of, ih. 
 no excuse that plaintitf has contributed to the diminution, 224. 
 enlargement of ancient lights, 224. 
 dominant tenement must be a building, 224. 
 implied grants of light, 220. 
 
 a n'lan cannot obstruct on property granted by him to 
 
 another, ih. 
 rights of two contemporaneous vendees or lessees or devisees 
 from same vendor or lessor or testator, ih. 
 aliter where conveyances or leases are not contempo- 
 raneous, 220, 221. 
 rights to light gained by prescription, 221. 
 
 interruptions sufficient to rebut prescription, ih. 
 
 by plaintiff himself do not permit prescriptive 
 right being obtained, 221. 
 nor deprive him of right tn injunction, 
 no interruption allowed after nineteen years, i1). 22-1. 
 
 but injunction not granted until full twenty years, ih. 
 twenty years enjoyment binds reversioners, 222. 
 right to, lost by giving licence to another to do an act, the 
 
 natural consequence of which is an obstruction of, 250. 
 reservation of right to, is seldom implied, 220. 
 
 LIMITATION 
 
 of actions of tort, 79 et seq. 
 
 reasons for, ib. 
 
 great distinction between r^'ul property limitation Acts and 
 
 tho.se relating to chattels, 82. 
 commencement of period of, ih. 
 
 when tort consists of actual damage, commencement ol 
 
 period of, 80. 
 taking away su])port of land, ih. 
 conversion, 81. 
 
 [ 16 ]
 
 Index. 
 
 LIMIT AT10}\ —continued. 
 
 coiumeiKeiuent of period of — continued. 
 concealed fraud, 81. 
 disability, 83. 
 
 arising subsequently to comtuencementof period, 
 
 commencement of period when tort continuing, 82. ib. 
 
 in particular cases. See under the several headings of those 
 
 cases. 
 under Employers' Liability Act, 72. 
 
 Public Authorities Protection Act, 1894, 84. 
 
 LOSS OF SERVICE. See Seduction. 
 
 LUNATIC 
 
 liable for his torts, 45. 
 
 M. 
 
 MAGISTRATE. See Imprisoxmext. 
 
 MAINTENA^X'E, 
 
 definition of, 149. 
 
 when action maintainable for, ib. 
 
 not where common interest between maintaiuer and 
 maintained, ib. et seq. 
 
 nor where maintainer actuated by charitable motives, 151. 
 
 MALICE 
 
 not usually material in torts, 21 et seq. 
 
 MALICIOUS ARREST, 169. 
 And see IJiPRisoNiiENT. 
 
 MALICIOUS PROSECUTION, 140 et seq. 
 definition of, ib. 
 "prosecution"' includes bankruptcy and li([uidation pio- 
 
 ceedings, 140, 146. 
 when actionable, ib. 
 factors necessary for maintaining action for, ih. 
 
 (1) Prosecution by defendant, ib. 
 
 prosecution ordered by a magistrate on defendant's infor- 
 mation as to facts not sutticient, ib. 
 unless defendant after ascertaining the innocence of 
 plaintiff maliciously continues the prosecution. 141. 
 
 (2) Want of reasonable and probable cause, 142. 
 
 onus of proof on plaintiff, ib. 
 
 duties of judge and jury as to, ib. 
 
 what constitutes, 143. 
 
 opinion of counsel in favour of prosLM ution no excuse, ib. 
 
 amount of care re([uireil, 144. 
 
 (3) Malice, 144. 
 
 generally implied, ib. 
 
 honest but stujjid mistake, 145. 
 
 L.T. Y [ 1" ]
 
 Index. 
 
 MALICIOUS FROSECVTIO^— continued. 
 
 (3) Malice —contin ucd. 
 
 defective memory, 145. 
 
 knowledge of defendant that he was in the wrong, evidence 
 
 of malice, 145. 
 to stoj) plaintiff's mouth, 144. 
 subsequent malice of the defendant, 141. 
 adoption of proceedings already commenced, ih. 
 malice may be implied in a corporation, 145. 
 
 (4) Setting aside of frocecdinys, a condition irrecedent to action for, 
 
 explanation of the reasons for this, ih. 146. 
 
 (5) Actual damage must he ])rored, 147. 
 
 need not be ijecuniary, 147. 
 
 MANUFACTUEE. See Patent. 
 
 noxious or offensive, an actionable nuisance. See Nuisance ; 
 Injunction. 
 
 MARRIED WOMAN 
 
 may sue for a tort without joining her husljand. 44. 
 cannot sue her husband for a tort, ih. 
 liable for her torts, 48 ct scq. 
 her husband also still liable, ih. 
 
 MASTER AND SERVANT, 
 
 as to enticing and seducing servants. Sec Seduction. 
 master may in general sue for a tort which dej^rives him of 
 services of servant, 13. 
 alite)- if servant be killed, ih. 
 has remedy in tort against railway comj^any for 
 negligence although servant jjaid the fare, 
 
 38 et seq. 
 servant may have remedy in converse case, ih. 
 inducing servant to break his contract of sei'vice, 152, 169. 
 general lialjility of master for torts of, 56 et secj. 
 who are servants, 57 ct secj. 
 
 accidents occasioned b}' carelessness of servant, 56, 58 et seq. 
 master when liable for illegal act of servant, ih. 
 
 liable for wilful act of servant if within the general 
 scope of his authority, 56, 58 et scq. 
 liability of master for assaults of servant committed in 
 
 sco2)e of his employment, 61. 
 master not liable for servant's torts when committed out- 
 side, or beyond scope of his emjiloyment, 56, 58 ct seq. 
 distinction between unlawful metliod of doing what he was 
 engaged to do, and unlawful act cumidetely outside the 
 scope of his engagement, 58 et secj. 
 servant giving pei'son into custody is not usually acting 
 
 within the sco])e of his employment, 60 et seq. 
 master not liable for injuries caused by servant while 
 
 driving master's carriage on business of his own, 58. 
 ratification of servant's tort, 50. 
 meaning of term " servant," 56 et seq. 
 
 [ 18]
 
 Index. 
 
 3IASTER AND SERVANT— cont in tcecl 
 
 "eneral liability of master for torts oi— continued. 
 
 master not liable for torts committed by persons employed 
 
 by servant to do his work, 50 et seq. 
 contractor or intermediate employer liable for torts of 
 
 workmen, 53 et seq. 
 job-master liable, and not hirer of horses, 57. 
 temporary employment by a third party excuses master, 57. 
 unauthorised delegation by a servant of his duties excuses 
 master froui delegates torts, 50 et seq. 
 when person liable at common law for injuries caused by servant 
 to fellow servant, 64 et seq. 
 And see Employers Liability Act. 
 master not liable where there is common employment or a 
 
 voluntary acceptance of risk, ih. 
 meaning of common employment, 64 et seq. 
 personal negligence of master, ib., 68. 
 master knowingly employing an unskilful servant, 64. 
 servant's knowledge of danger, when a bar, 68 et seq. 
 volunteer helpers are in the position of servants -with 
 regard to suing the master for negligence of his true 
 servants, 70. 
 aliter where acting with master's consent or acquies- 
 cence, ib. 
 
 MEASURE OF DAMAGES. See Damages. 
 
 MEDICAL EXPENSES. See Campbell's (Lord) Act. 
 
 MEDICAL MEN, 
 negligence of, 38. 
 slandering. See Defamation. 
 
 MINE, 
 
 floodin"- of, by water brought by defendant on to his land 
 actionable without proof of negligence, 18 et seq., 202. 
 aliter where defendant only allowed naturtxl percolation, ib. 
 
 MISFEASANCE. 
 
 liability for, 40. 
 
 by railway companies carrying passengers to whom they have 
 ' not issued tickets, ih. et seq. 
 
 MISREPRESENTATION. See Fraud. 
 
 MISTAKE 
 
 no justification, 15, 16. 
 
 MITIGATION. See Damages. 
 
 MORAL GUILT, 
 
 generally immaterial in cases of tort, 21, 23 ct seq, 
 iditer in case of fraud, 23. 
 
 y 2 [ 19 ]
 
 Index. 
 
 N. 
 NECESSITY, 
 
 right of way of, 228. 
 
 may excuse what would otherwise be a tort, 16, 20, 260. 
 
 NEGLIGENCE, 
 
 definitiou of, IT.^i 
 
 duty to take care arises out of many relations, 176. 
 amount of care required depends on circumstances, ib., 183. 
 grouping of relations necessitating exercise of care, 176, 177. 
 not actionable unless it be proved that the injury suffered 
 ought reasonably to have been anticii^ated Viy defendant, 
 ^ ^ 178. 
 
 and that his negligence was the proximate cause of the 
 injury, 187. 
 illustrations of proximate cause, ih. et seq. 
 bursting of water company's mains, 178. 
 damage caused by extraordinary flood, ih. 
 custody of dog entrusted to a railway company, ib. 
 extra caie re(|uired where defendant has control of dangerous 
 things, 178 et seq. 
 dangerous stacking of hay, 178. 
 
 entrusting loaded gun to inexperienced servant girl, 179. 
 selling deleterious liairwash, 179. 
 selling or even lending dangerous chemicals or (ither things 
 
 without warning, ib. 
 erecting daniierous stage for use of plamtift", 181. 
 dock master inviting vessel to take up a dangerous beith, 
 dangerous and savage animals, 180. ib. 
 
 when scienter necessary, ili. 
 premises or dangerous chattels on premises to 
 Avhich iilaintiff goes in ordinary course of 
 business, 181, 182. 
 how far guests, licensees, and trespassers are 
 entitled to sue for injuries caused by danger- 
 ous premises, 182, 183. 
 relati\e liabilities of landlord and tenant of 
 such premises, 128. 
 onus of proof of, 189 et seq. 
 generally on plaintift', ib. 
 alittr where the accident would not be likely to happen 
 
 without negligence, ib., 190. 
 runaway horse, 189. 
 
 accident capable of two explanations, ib. 
 heavy article dropping out of window, 190. 
 contributory, 184. 
 
 where contributory, affords no excuse, 18.5. 
 contributory negligence of carrier to who)u plaintilf has 
 entru-sted himself, no excuse, 185. 
 in infants, 186. 
 actions by representatives of a person killid by, 192 — 194. 
 
 See Campbell's (Lord) Act. 
 duties of judge and jury in actions for, 190. 
 limitation of actions for, 192. 
 
 [ 20 ]
 
 Index. 
 
 NEWSPAPERS. See Defaii.\tion. 
 NOISE. See Nuisance ; Injunction. 
 NOXIOUS TRADE. See Nuisance. 
 
 NUISANCE, 
 
 description of nuisances, 195. 
 
 either pul)lic or private, ib. 
 actions in respect of, ib. 
 definition of, ib. 
 examples of, 196. 
 malicious motive immaterial, 196. 
 
 (1) Private damage from public nuisance, 197. 
 
 when actionable, ib. 
 examples of public nuisances, 198. 
 fumes, ib. 
 church bells, ib. 
 stinking sewers, ib. 
 excavations on highways, ib. 
 
 ruinoi;s or dangerous fences or premises on highway, 
 
 liability of highway authorities, 199. ib. 
 
 landlord and tenant respectively, 210 
 
 (2) Causing injury to corporeal hereditaments — et seq. 
 
 definition of, 200. 
 
 disgusting fumes, 200. 
 
 noisy trade, ib. 
 
 the nuisance must be material, ib. 
 
 noisy entertainments, 201. 
 
 entertainments causing crowds and noise, ib. 
 
 domestic music apparently a licensed nuisance, ib. 
 
 allowing dangerous things (such as water or electricity) to 
 
 escape, 202. 
 actively shifting danger from self to neighbour, 203. 
 overhanging eaves, ib. 
 trees, ih. 
 dangerous adjacent buildings, relative liabilities of landlord 
 
 and tenant for nuisance caused by, 210. 
 pig stys, 203. 
 noisy dogs, ib. 
 small-pox hospital, 204. 
 reasonableness of place when no excuse, ib. 
 temporary character of nuisance, 202. 
 distinction between injury to property and annoyance in 
 
 its user, 205. 
 immaterial wdiether plaintiff goes to the nuisance or it to 
 
 him, 206. 
 prescriptive right to commit, ib. 
 statutory right to commit, ib. 
 
 not implied unless the statute necessarily imports it, 
 
 (3) Affecting incorporeal hereditaments, 211 et seq. 206 — 209. 
 
 easements and servitudes, ib. 
 
 profits a prendre, 212. 
 
 title to easements, ib. 
 
 disturbance of natural right to sujjport, ib. 
 
 [ 21 ]
 
 Index. 
 
 NUISANCE— conhjruerf. 
 
 (3) Affecting incorporeal hereditaments — continved. 
 right arises ex jure natum:, 213. 
 
 not extended to remote owners ^\"llose support has 
 been weakened by acts of intermediate owner, 214. 
 no right to support Ijy suljterranean water, 215. 
 
 aliter of other substances such as wet sand or pitch, 
 the damage must be material, ih. 215. 
 
 but pecuniary loss not essential, ih. 
 railway and canal companies have no right of su]>port, 216. 
 right of support for land Inirdened with Iniildinos, 216. 
 can be gained only by prescription or grant, ih. 
 may be similarly acquired iov support from adjacent 
 houses, 217. 
 where natural right to support is infringed the consequent 
 
 damage to a modern house may be recovered, 216, 218. 
 right to light and air, 218. 
 
 See Light and Air. 
 watercourse, 224. 
 
 See Watercourse. 
 ways, 227. 
 See Ways. 
 rights of common, 230. 
 
 See CoMMOx. 
 fishery, 233. 
 
 See Fishery. 
 ferry, 236. 
 See Ferry. 
 remedy by abatement, 237. 
 
 not applicable to prospective nuisances, 238. 
 injunction. See Injunction. 
 of reversioner, 240. 
 limitation of actions, ib. 
 
 0. 
 
 OBSTRUCTION 
 
 of entry to places of business, 13. 
 road, 11, 12, 227. 
 light and air, 223. 
 See Light and Air. 
 
 OUSTER. See Dispossession. 
 
 PARTNERS, 
 
 liability of, for each other's torts, 75 et seij. 
 
 for torts other than fraudulent nii>appriipriations, ib. 
 fraudulent misaiiproiiriatinu.-. ih.. ~~. 
 guarantees, 77. 
 is joint and several, 75. 
 
 [ 22 ]
 
 Index. 
 
 PARTY-WALL, 
 
 trespass to, 263. 
 
 PERJURY, 
 
 no action lies for consequences of, 133. 
 
 imputation of, not actional ilc, unless made with reference to a 
 judicial inquiry, 124. 
 
 PERSONAL PROPERTY, 
 
 trespass to. Sec Trespass. 
 
 PICKETING, 172. 
 PIG-STY. See Nuisance. 
 
 PIT, 
 
 accidents from unguarded, l(i, Ifil. 
 
 POISONOUS TREES, 17. 
 
 POLLUTION OF WATER, 225, 226. 
 
 POSSESSION, 
 
 writ of. See Trespass ; Nuisance. 
 
 PRESCRIPTION. See Lkjht and Air ; Nuisance ; Support ; 
 Watercourse ; Way ; Common. 
 
 PRINCIPAL, 
 
 liability of, for acts of agent, 49 ct seq. 
 See Agent. 
 
 PRINTER. See Defamation. 
 
 PRIVATE WAY. See Way. 
 
 PRIVILEGED COMMUNICATIONS. See Defamation. 
 
 PRIVITY, 
 
 in torts arising out of contract, 37 et seq. 
 
 PROBABLE CAUSE. See Malicious Prosecution. 
 
 PROBABLE CONSEQUENCE, 
 
 every nuxn presumed to intend the, of his acts, 15, 16. 
 
 PROFESSIONAL MEN, 
 
 negligence uf, 38. 
 
 PUBLIC CONVENIENCE 
 
 does nut justify a tort to an individual, 106. 
 
 PUBLIC NUISANCE. See Nuisance.
 
 Index. 
 
 PUBLIC RIGHT, 
 
 infringement of coupled Avith peculiar damage to an 
 individual, 7, 10, 12. 
 
 PUBLICATION. See Defamation. 
 
 Q. 
 
 QUALIFIED RIGHT, 
 
 infringement of coupled with damage, 7, 9, 13. 
 
 QUIA TIMET INJUNCTION, 105. 
 
 R. 
 
 RAILWAY COMPANY. See Negligence ; Master and 
 Servant ; Contract ; Misfeasance ; Nuisance. 
 
 RATIFICATION. See Master and Servant. 
 
 RECAPTION, 
 
 remedy by, 277. 
 
 REMOTENESS 
 
 of damage, 24 et seq. 
 
 REPLEVIN, 
 
 action of, 278. 
 
 REVERSIONER 
 
 may enter into and inspect premises, 260. 
 remedy of, for injury to land, 240. 
 
 tresjjass, accompanied l»y a denial of title, ib. 
 
 obstructions, ib. 
 no remedy given to, for mere transient trespasses or 
 
 nuisances, ib. 
 some injury to the reversion must be proved, ib. 
 remedy of, for injury to personal property, 274. 
 
 RIVER. Sec Watercourse. 
 RUINOUS PREMISES. ,SVe Nuisance. 
 
 RUNAWAY HORSE, 
 
 how far owner liable for damage caused by, IC, 17. 
 
 [24]
 
 Index. 
 
 SCIENTER. See Ferocious Animals. 
 
 SEA-WALL, 
 
 damage through insufficient height of, 24 et seq. 
 
 SEDUCTION, 
 
 action for, whence arising, 152. 
 of servant from master's employ is actionaljle, ih. 
 relation of master and servant essential, ih. • • «■> 
 
 contract of service, when implied, where the girl is plaintitl s _ 
 daughter, 153 d scq. 
 small services suffice, 153, 154. 
 
 when daughter lives with her father, and is a minor, 
 service is presumed, ib. et seq. 
 aliter where the daughter acts as another's house- 
 keeper, 155. 
 not even where she supports her father, ib. 
 where service to anotlier is put an end to, the right of the 
 parent revives, 154. 
 temporarv visit no termination of service, ih. 
 relation of master and servant must subsist at time of seduction 
 
 and of confinement, 153 et seq. 
 if parent helps to bring about his own dishonour, he cannot 
 
 recover, 155. 
 damages in, 156. 
 
 And see Damages. 
 aggravation of, ih. 
 breach of promise of marriage not technically matter of 
 
 aggravation, 157 n. 
 mitigation of, 157. 
 
 previous immorality or looseness, ih. 
 limitation, ih. 
 
 SELF-DEFENCE, 
 
 tort committed in, 16, 20, 245, 246, 260, 273. 
 
 SERVANT 
 
 may sue for loss of luggage or personal injury althougli master 
 paid the fare, 38. 
 See Master and Servant. 
 
 SEWEE, 
 
 nuisance caused by defective, 198. 
 
 SHAFT, 
 
 unguarded, 16, 181, 198, 199. 
 
 SHEEP, 
 
 injuries to, by dog actionable without ]iroof of scienter, 181. 
 
 [ 25]
 
 Index. 
 
 SHOOTIXG 
 
 by accident not actionable, 17. 
 
 SHOP, 
 
 obstructing view of a, no tort, 11, 
 
 SLANDER. See Defamation. 
 
 SOLICITOE, 
 
 slandering a, 125. 
 
 SOVEREIGN 
 
 not liable for torts, 45. 
 nor foreign, ib. 
 
 SPRING-GUNS. Sec Nuisance. 
 
 STATUTE 
 
 does not take away common law rights in general, 35. 
 
 nor, unless very explicit, does it excuse a nuisance, ih., 107, 207. 
 
 STATUTORY DUTIES, 
 breaches of, 32 et seq. 
 where no right created in favour of the plaintiff there is no 
 
 action maintainable, ih. 
 no action where statute only intended to prevent mischief of a 
 
 different character to that suffered by plaintiff, 34. 
 sometimes injured party is restricted to the statutory penalty, 
 
 32 cf seq. 
 observance of, does not as a rule restrict common law liabiUtv, 
 
 3.5. 
 STRIKERS, 
 
 torts by, 169—175. 
 
 SUPPORT. See Nuisance (2). 
 
 TENANT 
 
 cannot dispute landlord's title, 266. 
 
 but may show that title has expired, tb. 
 See Landlord. 
 
 TITLE. See Trespass ; Dispossession. 
 
 TOOLS, 
 
 hiding, of blackleg, 1 69 et seq 
 
 TORT, 
 
 definition of, 7. 
 
 nature of a, discussed, ib. et seq. 
 
 classitication of, 13. 
 
 [26]
 
 Index. 
 
 TORT— continued. 
 
 who may sue for a, 44. 
 
 be sued tor, 45. 
 relation of, and contract, 36 ct seq. 
 waiver of, 279. 
 
 TRADE COMBINATIONS 
 
 not tortious, 173. 
 
 unless tliey amount to nuisances, 172 et seq. 
 
 TRADE UNIONS, 
 
 torts by, 47. 
 
 by members of, 169 et seq. 
 
 TRAP, . . , . . 
 
 illegal to permit any danger to exist m the nature ot a, 
 even against trespassers, ib. 1<?1 <'' ^'^'i- 
 
 TREES, 
 
 poisonous, overhanging a neighbour's land, 1 1 . 
 
 TRESPASS, 
 
 (1) To the person, 241 et seq. 
 actionable without proof of damage, 241. 
 
 See Assault ; Battery ; False Ijiprisoxjiext. 
 
 (2) To Lands (quare clausumf regit), 258 ct i^eq. 
 
 And see also Dispossession. 
 definition, ib. 
 
 no actual damage required to support action for, ib. 
 driving nails into wall is, 259. 
 by straying cattle, ib. 
 any riser going lieyond that authorised, ib. 
 
 ex. gr. unreasonable use ot public right of way, ilt. and 262. 
 remedy for, by distress damage feasant, 264. 
 justification of, 260 et seri. 
 in re-taking goods, 260. 
 
 driving cattle oft" plaintitf's land, ib. 
 distraining for rent, ib. 
 executing legal process, ib. 
 
 by reversioner inspecting premises, //). 
 
 in escaping a pressing danger, //). 
 
 by grantee of easement for the purpose of making 
 
 repairs, justifiable, ib. 
 under due legal authority, ib. 
 plea of liberum tenementum, ib. 
 trespassers, ab initio, 261. 
 
 possession necessary to maintenance of action for, ili. 
 when two people are in adverse possession, possession in 
 
 persons entitled, 262. 
 possession dates back to title, ih. 
 
 onus of i^roof of title lies on prima facie trespasser, ib. 
 when surface and subsoil in different owners, ib. 
 to highways, 259, 262. 
 of joint owners, 263. 
 
 carrying away of soil l)y one of two joint owners, ih. 
 reasonable working of coal mine by joint owner, ib. 
 
 [27]
 
 Index. 
 
 TRES P A SS — continued. 
 
 (2) To Lands {quare clausnm f regit) — continued. 
 
 injuries to party-walls, ib. 
 continuing, ib. 
 damages for. See Damages. 
 limitation of actions for, 264. 
 
 (3) To Goods and Chattels (de asportatis bonis), 269 et seq. 
 
 what is, 269. 
 
 to animals, ib., 273. 
 
 good intention no e.xcuse, 269. 
 
 kindh" otficiousness may amount to, ib. 
 
 destruction of goods by bailee, 270. 
 
 excessive sale by sheriff, 269. 
 
 killing game or animals /era' natura;, 269, 273. 
 
 purchasing goods without title, 270. 
 
 in market overt, 271. 
 distinction between fraudulent contract and no con- 
 tract, 270. 
 no trespass if plaintiff in fault, 272. 
 no remedy if animals get injured whilst trespassing, unless 
 
 defendant used unreasonal;)le force, 273. 
 wrongful alteration or mixing up of goods prevents the 
 person altering or mixing from maintaining an action 
 for his own materials or goods, 272. 
 
 unauthorised painting of carriage, 273. 
 trespass in defence of property, ib. 
 shooting a trespassing dog, when allowable, ib. 
 trespass in self-defence, ib. 
 
 exercise of light, ib. 
 
 legal authority, ib. 
 conversion to enforce pledge, 273. 
 possession necessary to maintenance of action, ih. 
 follows title, ib. 
 bailee delivering goods to an unauthorised person 
 
 revests possession in bailor, 274. 
 sale by a person having a lien is a trespass, ib. 
 damages for sale of goods by persons having a lien, ib. 
 administrator may maintain trespass for injuries to 
 goods committed before grant of administra- 
 tion, 275. 
 so may a trustee when possession actually in cestui 
 que trust, ib. 
 what possession suffices, ib. 
 possession of finder, ib. 
 possession 'prima facie proof of title, ih. 
 defendant cannot in general set up jus tertii, ib. 
 trespasses of joint owners, 276. 
 tresjKiss ah initio, ih. 
 recaption, 277. 
 action for trespass, 277. 
 of replevin, 278. 
 waiver of tort, 279. 
 stolen goods, 280. 
 limitation, ib. 
 
 [ 28]
 
 Index. 
 
 TROVER. See Wrongful Conversion. 
 
 TRUSTEE 
 
 may inaiutain trespass or conversion for injuries to goods when 
 actual possession in cestui que trust, 275. 
 
 u. 
 
 UNFENCED SHAFT OR QUARRY, 16, 181, 198, 199. 
 
 VIEW, 
 
 interruption of, is no tort, 11. 
 
 VIS MAJOR, 
 
 excuses wliat would ullierwise be actionable, 17, -20. 
 exceptions, 26 et seq. 
 
 VOLENTI NON FIT INJURIA, 68. 
 
 VOLITION, 
 
 how far necessary to tort, 15 e^ s/'q. 
 
 VOLUNTEERS 
 
 not in general entitled to recover for negligence of a party or 
 his servants, 70. 
 
 VOTE, 
 
 wrongful refusal by returning otticer to record, is a tort, 12. 
 
 w. 
 
 WALL, 
 
 trespass to, by sticking nails into it, 259. 
 party, 263. 
 
 WARRANT. Sec Constable. 
 
 WATER, ... 
 
 causing accumulation of, whereby unothers property is injured, 
 
 is actional)le, unless injury caused by vis major, 17 ct .<eq., 
 
 aliier, if caused by fault of a third party, 18, 202. 202. 
 
 ' injuvv caused hv natural ]iercolati(jn of from anotlier's mine, no 
 
 tort, 12, 202. " , . , , . 
 
 actively shifting natural accumulations ot, on to ueiglibours 
 
 laud", 203. 
 allowed to escape aii'l to form ice on a public highway, 25 
 
 et scq. 
 
 [ :i'-> ]
 
 Index. 
 
 WATERCOURSE, 
 
 right to use of surface watercourse vested in riparian projirietors, 
 aliter with regard to subterranean Avater, 225. 224. 
 
 disturbance of right to use of, ih. 
 damage essential to an action ibr disturbance of, ih. 
 fouling a well, 226. 
 
 drawing off underground water, where actionalde, 225, 226. 
 penning back A\ater in, 226. 
 
 prescriptive rights in derogation of other riparian proprietors, 
 rights may be gained in an artificial, 225. 227. 
 
 WAY. 
 
 obstruction of a public, may be a tort, 10, 12. 
 
 unfenced hole adjoining a, may be a tort, 10. 
 
 olistiuction of private, 11, 227 d seq. 
 
 right of, 227. 
 
 only gained by prescrijition or grant, ib. 
 
 right strictly limited by terms of grant or by mode of user, 
 
 right of, of necessity, ib. 228. 
 
 cesser of right when necessity ceases, ib. 
 implied grants of way over private roads, 228. 
 prescriptive rights of way, 229. 
 
 WIFE, 
 
 may sue for loss caused by the killing of her husband. 111, 192 
 damages in such action, 92. ct seq. 
 
 liability of husband for torts of, 48. 
 may sue without joining her husband, 44. 
 
 WINDOWS. See Light and Air. 
 
 WORDS. See Defamation. 
 
 WRONGDOER, 
 
 any possession sufficient to sustain trespass against a, 262, 273. 
 all things are presumed against a, 90. 
 
 WRONGFUL CONVERSION, 
 
 what is, 269. 
 
 destruction of goods by bailee, ib. 
 excessive execution, ib. 
 
 good intention no excuse for officious interference, ib. 
 selling another's goods by mistake, however bond fide, 
 
 270. 
 jjurchase of goods from a person not entitled, even by a 
 bo/uljide purchaser, ib. 
 from persoii who has obtained gcjods by fraud may 
 or may not be a conversion, ib. 
 is convicted of obtaining the 
 goods by ialse pretences, 272. 
 of goods in market overt, 271. 
 possession necessary to maintenance of action for, ib. 
 reversioner cannot sue i'or, 274. 
 reversioner's remedy, ib. 
 
 [ 30]
 
 Index. 
 
 WRONGFUL CONVERSION— con^mMcrf. 
 possession follows title, 274. 
 
 unauthorised delivery by bailee levests possession 
 bailor, ib. 
 
 sale by one having a lieiT is a conversion, ib. 
 
 any possession suifices against a ■wrongdoer, 275. 
 
 possession of finder, ib. 
 
 prima facie evidence of title, ib. 
 when defendant may set up jus tertii, ib. 
 conversions of joint owners, 276. 
 
 subsequent conversions of lawfully -obtained chattel, 276. 
 recaption, 277. 
 
 ordinary remedy by action, ih. 
 power of judge to order restitution, ib. 
 replevin, 278. 
 waiver of tort, 279. 
 restitution of stolen goods, 286. 
 limitation, ib. 
 
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