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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

Book I.—

GENERAL PART.

CHAPTER I.

THE NATURE OF TORT IN GENERAL.

What is a tort?Our first difficulty in dealing with the law of torts is to fix the contents and boundaries of the subject. If we are asked, What are torts? nothing seems easier than to answer by giving examples. Assault, libel, and deceit are torts. Trespass to land and wrongful dealing with goods by trespass, “conversion,” or otherwise are torts. The creation of a nuisance to the special prejudice of any person is a tort. Causing harm by negligence is a tort. So is, in certain cases, the mere failure to prevent accidental harm arising from a state of things which one has brought about for one’s own purposes. Default or miscarriage in certain occupations of a public nature is likewise a tort, although the same facts may constitute a breach of contract, and may, at the option of the aggrieved party, be treated as such. But we shall have no such easy task if we are required to answer the question, What is a tort?—in other words, what principle or element is common to all the classes of cases we have enumerated, or might enumerate, and also distinguishes them as a whole from other classes of facts giving rise to legal duties and liabilities? It is far from a simple matter to define a contract. But we have this much to start from, that there are two parties, of whom one agrees to terms offered by the other. There are variant and abnormal forms to be dealt with, but this is the normal one. In the law of torts we have no such starting-point, nothing (as it appears at first sight) but a heap of miscellaneous instances. The word itself will plainly not help us. Tort is nothing but the French equivalent of our English word wrong, and was freely used by Spenser as a poetical synonym for it. In common speech everything is a wrong, or wrongful, which is thought to do violence to any right. Manslaying, false witness, breach of covenant, are wrongs in this sense. But thus we should include all breaches of all duties, and therefore should not even be on the road to any distinction that could serve as the base of a legal classification.

History and limits of English classification. In the history of our law, and in its existing authorities, we may find some little help, but, considering the magnitude of the subject, singularly little. The ancient common law knew nothing of large classifications. There were forms of action with their appropriate writs and process, and authorities and traditions whence it was known, or in theory was capable of being known, whether any given set of facts would fit into any and which of these forms. No doubt the forms of action fell, in a manner, into natural classes or groups. But no attempt was made to discover or apply any general principle of arrangement. In modern times, that is to say, since the Restoration, we find a certain rough classification tending to prevail(a) . It is assumed, rather than distinctly asserted or established, that actions maintainable in a court of common law must be either actions of contract or actions of tort. This division is exclusive of the real actions for the recovery of land, already becoming obsolete in the seventeenth century, and finally abolished by the Common Law Procedure Act, with which we need not concern ourselves: in the old technical terms, it is, or was, a division of personal actions only. Thus torts are distinguished from one important class of causes of action. Upon the other hand, they are distinguished in the modern law from criminal offences. In the medieval period the procedure whereby redress was obtained for many of the injuries now classified as torts bore plain traces of a criminal or quasi-criminal character, the defendant against whom judgment passed being liable not only to compensate the plaintiff, but to pay a fine to the king. Public and private law were, in truth, but imperfectly distinguished. In the modern law, however, it is settled that a tort, as such, is not a criminal offence. There are various acts which may give rise both to a civil action of tort and to a criminal prosecution, or to the one or the other, at the injured party’s option; but the civil suit and the criminal prosecution belong to different jurisdictions, and are guided by different rules of procedure. Torts belong to the subject-matter of Common Pleas as distinguished from Pleas of the Crown. Again, the term and its usage are derived wholly from the Superior Courts of Westminster as they existed before the Judicature Acts. Therefore the law of torts is necessarily confined by the limits within which those Courts exercised their jurisdiction. Divers and weighty affairs of mankind have been dealt with by other Courts in their own fashion of procedure and with their own terminology. These lie wholly outside the common law forms of action and all classifications founded upon them. According to the common understanding of words, breach of trust is a wrong, adultery is a wrong, refusal to pay just compensation for saving a vessel in distress is a wrong. An order may be made compelling restitution from the defaulting trustee; a decree of judicial separation may be pronounced against the unfaithful wife or husband; and payment of reasonable salvage may be enforced against the ship-owner. But that which is remedied in each case is not a tort. The administration of trusts belongs to the law formerly peculiar to the Chancellor’s Court; the settlement of matrimonial causes between husband and wife to the law formerly peculiar to the King’s Ecclesiastical Courts; and the adjustment of salvage claims to the law formerly peculiar to the Admiral’s Court. These things being unknown to the old common law, there can be no question of tort in the technical sense.

Exclusive limits of “tort.” Taking into account the fact that in this country the separation of courts and of forms of action has disappeared, though marks of the separate origin and history of every branch of jurisdiction remain, we may now say this much. A tort is an act or omission giving rise, in virtue of the common law jurisdiction of the Court, to a civil remedy which is not an action of contract. To that extent we know what a tort is not. We are secured against a certain number of obvious errors. We shall not imagine (for example) that the Married Women’s Property Act of 1882, by providing that husbands and wives cannot sue one another for a tort, has thrown doubt on the possibility of a judicial separation. But whether any definition can be given of a tort beyond the restrictive and negative one that it is a cause of action (that is, of a “personal” action as above noted) which can be sued on in a court of common law without alleging a real or supposed contract, and what, if any, are the common positive characters of the causes of action that can be so sued upon:—these are matters on which our books, ransack them as we will, refuse to utter any certain sound whatever. If the collection of rules which we call the law of torts is founded on any general principles of duty and liability, those principles have nowhere been stated with authority. And, what is yet more remarkable, the want of authoritative principles appears to have been felt as a want by hardly anyone(b) .

Are any general principles discoverable? We have no right, perhaps, to assume that by fair means we shall discover any general principles at all. The history of English usage holds out, in itself, no great encouragement. In the earlier period we find a current distinction between wrongs accompanied with violence and wrongs which are not violent; a distinction important for a state of society where open violence is common, but of little use for the arrangement of modern law, though it is still prominent in Blackstone’s exposition(c) . Later we find a more consciously and carefully made distinction between contracts and causes of action which are not contracts. This is very significant in so far as it marks the ever gaining importance of contract in men’s affairs. That which is of contract has come to fill so vast a bulk in the whole frame of modern law that it may, with a fair appearance of equality, be set over against everything which is independent of contract. But this unanalysed remainder is no more accounted for by the dichotomy of the Common Law Procedure Act than it was before. It may have elements of coherence within itself, or it may not. If it has, the law of torts is a body of law capable of being expressed in a systematic form and under appropriate general principles, whether any particular attempt so to express it be successful or not. If not, then there is no such thing as the law of torts in the sense in which there is a law of contracts, or of real property, or of trusts, and when we make use of the name we mean nothing but a collection of miscellaneous topics which, through historical accidents, have never been brought into any real classification.

The genera of torts in English law. The only way to satisfy ourselves on this matter is to examine what are the leading heads of the English law of torts as commonly received. If these point to any sort of common principle, and seem to furnish acceptable lines of construction, we may proceed in the directions indicated; well knowing, indeed, that excrescences, defects, and anomalies will occur, but having some guide for our judgment of what is normal and what is exceptional. Now the civil wrongs for which remedies are provided by the common law of England, or by statutes creating new rights of action under the same jurisdiction, are capable of a threefold division according to their scope and effects. There are wrongs affecting a man in the safety and freedom of his own person, in honour and reputation (which, as men esteem of things near and dear to them, come next after the person, if after it at all), or in his estate, condition, and convenience of life generally: the word estate being here understood in its widest sense, as when we speak of those who are “afflicted or distressed in mind, body, or estate.” There are other wrongs which affect specific property, or specific rights in the nature of property: property, again, being taken in so large a sense as to cover possessory rights of every kind. There are yet others which may affect, as the case happens, person or property, either or both. We may exhibit this division by arranging the familiar and typical species of torts in groups, omitting for the present such as are obscure or of little practical moment.

Group A.

Personal wrongs.Personal Wrongs.

• 1. Wrongs affecting safety and freedom of the person:Assault, battery, false imprisonment.
• 2. Wrongs affecting personal relations in the family:Seduction, enticing away of servants.
• 3. Wrongs affecting reputation:Slander and libel.
• 4. Wrongs affecting estate generally:Deceit, slander of title.Malicious prosecution, conspiracy.

Group B.

Wrongs to property.Wrongs to Property.

• 1. Trespass: (a) to land.(b) to goods.Conversion and unnamed wrongs ejusdem generis.Disturbance of easements, &c.
• 2. Interference with rights analogous to property, such as private franchises, patents, copyrights.

Group C.

Wrongs affecting person and property.Wrongs to Person, Estate, and Property generally.

• 1. Nuisance.
• 2. Negligence.
• 3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings. This kind of liability results, as will be seen hereafter, partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negligence.

All the acts and omissions here specified are undoubtedly torts, or wrongs in the technical sense of English law. They are the subject of legal redress, and under our old judicial system the primary means of redress would be an action brought in a common law Court, and governed by the rules of common law pleading(d) .

We put aside for the moment the various grounds of justification or excuse which may be present, and if present must be allowed for. It will be seen by the student of Roman law that our list includes approximately the same matters(e) as in the Roman system are dealt with (though much less fully than in our own) under the title of obligations ex delicto and quasi ex delicto. To pursue the comparison at this stage, however, would only be to add the difficulties of the Roman classification, which are considerable, to those already on our hands.

Character of wrongful acts, &c. under the several classes. Wilful wrongs. The groups above shown have been formed simply with reference to the effects of the wrongful act or omission. But they appear, on further examination, to have certain distinctive characters with reference to the nature of the act or omission itself. In Group A., generally speaking, the wrong is wilful or wanton. Either the act is intended to do harm, or, being an act evidently likely to cause harm, it is done with reckless indifference to what may befall by reason of it. Either there is deliberate injury, or there is something like the self-seeking indulgence of passion, in contempt of other men’s rights and dignity, which the Greeks called ὕβρις. Thus the legal wrongs are such as to be also the object of strong moral condemnation. It is needless to show by instances that violence, evil-speaking, and deceit, have been denounced by righteous men in all ages. If anyone desires to be satisfied of this, he may open Homer or the Psalter at random. What is more, we have here to do with acts of the sort that are next door to crimes. Many of them, in fact, are criminal offences as well as civil wrongs. It is a common border land of criminal and civil, public and private law.

Wrongs apparently unconnected with moral blame. In Group B. this element is at first sight absent, or at any rate indifferent. Whatever may or might be the case in other legal systems, the intention to violate another’s rights, or even the knowledge that one is violating them, is not in English law necessary to constitute the wrong of trespass as regards either land or goods, or of conversion as regards goods. On the contrary, an action of trespass—or of ejectment, which is a special form of trespass—has for centuries been a common and convenient method of trying an honestly disputed claim of right. Again, it matters not whether actual harm is done. “By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil”(f) . Nor is this all; for dealing with another man’s goods without lawful authority, but under the honest and even reasonable belief that the dealing is lawful, may be an actionable wrong notwithstanding the innocence of the mistake(g) . Still less will good intentions afford an excuse. I find a watch lying in the road; intending to do the owner a good turn, I take it to a watchmaker, who to the best of my knowledge is competent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on it, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word, the duty which the law of England enforces is an absolute duty not to meddle without lawful authority with land or goods that belong to others. And the same principle applies to rights which, though not exactly property, are analogous to it. There are exceptions, but the burden of proof lies on those who claim their benefit. The law, therefore, is stricter, on the face of things, than morality. There may, in particular circumstances, be doubt what is mine and what is my neighbour’s; but the law expects me at my peril to know what is my neighbour’s in every case. Reserving the explanation of this to be attempted afterwards, we pass on.

Wrongs of imprudence and omission. In Group C. the acts or omissions complained of have a kind of intermediate character. They are not as a rule wilfully or wantonly harmful; but neither are they morally indifferent, save in a few extreme cases under the third head. The party has for his own purposes done acts, or brought about a state of things, or brought other people into a situation, or taken on himself the conduct of an operation, which a prudent man in his place would know to be attended with certain risks. A man who fails to take order, in things within his control, against risk to others which he actually foresees, or which a man of common sense and competence would in his place foresee, will scarcely be held blameless by the moral judgment of his fellows. Legal liability for negligence and similar wrongs corresponds approximately to the moral censure on this kind of default. The commission of something in itself forbidden by the law, or the omission of a positive and specific legal duty, though without any intention to cause harm, can be and is, at best, not more favourably considered than imprudence if harm happens to come of it; and here too morality will not dissent. In some conditions, indeed, and for special reasons which must be considered later, the legal duty goes beyond the moral one. There are cases of this class in which liability cannot be avoided, even by proof that the utmost diligence in the way of precaution has in fact been used, and yet the party liable has done nothing which the law condemns(h) .

Except in these cases, the liability springs from some shortcoming in the care and caution to which, taking human affairs according to the common knowledge and experience of mankind, we deem ourselves entitled at the hands of our fellow-men. There is a point, though not an easily defined one, where such shortcoming gives rise even to criminal liability, as in the case of manslaughter by negligence.

Relation of the law of torts to the semi-ethical precept Alterum non laedere. We have, then, three main divisions of the law of torts. In one of them, which may be said to have a quasi-criminal character, there is a very strong ethical element. In another no such element is apparent. In the third such an element is present, though less manifestly so. Can we find any category of human duties that will approximately cover them all, and bring them into relation with any single principle? Let us turn to one of the best-known sentences in the introductory chapter of the Institutes, copied from a lost work of Ulpian. “Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.” Honeste vivere is a vague phrase enough; it may mean refraining from criminal offences, or possibly general good behaviour in social and family relations. Suum cuique tribuere seems to fit pretty well with the law of property and contract. And what of alterum non laedere? “Thou shalt do no hurt to thy neighbour.” Our law of torts, with all its irregularities, has for its main purpose nothing else than the development of this precept(i) . This exhibits it, no doubt, as the technical working out of a moral idea by positive law, rather than the systematic application of any distinctly legal conception. But all positive law must pre-suppose a moral standard, and at times more or less openly refer to it; and the more so in proportion as it has or approaches to having a penal character.

Historical anomaly of law of trespass and conversion. The real difficulty of ascribing any rational unity to our law of torts is made by the wide extent of the liabilities mentioned under Group B., and their want of intelligible relation to any moral conception.

A right of property is interfered with “at the peril of the person interfering with it, and whether his interference be for his own use or that of anybody else”(k) .

And whether the interference be wilful, or reckless, or innocent but imprudent, or innocent without imprudence, the legal consequences and the form of the remedy are for English justice the same.

Early division of forms of action. The truth is that we have here one of the historical anomalies that abound in English law. Formerly we had a clear distinction in the forms of procedure (the only evidence we have for much of the older theory of the law) between the simple assertion or vindication of title and claims for redress against specific injuries. Of course the same facts would often, at the choice of the party wronged, afford ground for one or the other kind of claim, and the choice would be made for reasons of practical convenience, apart from any scientific or moral ideas. But the distinction was in itself none the less marked.Writs of right and writs of trespass: restitution or punishment. For assertion of title to land there was the writ of right; and the writ of debt, with its somewhat later variety, the writ of detinue, asserted a plaintiff’s title to money or goods in a closely corresponding form(l) . Injuries to person or property, on the other hand, were matter for the writ of trespass and certain other analogous writs, and (from the 13th century onwards) the later and more comprehensive writ of trespass on the case(m) . In the former kind of process, restitution is the object sought; in the latter, some redress or compensation which, there is great reason to believe, was originally understood to be a substitute for private vengeance(n) . Now the writs of restitution, as we may collectively call them, were associated with many cumbrous and archaic points of procedure, exposing a plaintiff to incalculable and irrational risk; while the operation of the writs of penal redress was by comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of trespass and its kind upon the writ of right and its kind. Not only was the writ of right first thrust into the background by the various writs of assize—forms of possessory real action which are a sort of link between the writ of right and the writ of trespass—and then superseded by the action of ejectment, in form a pure action of trespass; but in like manner the action of detinue was largely supplanted by trover, and debt by assumpsit, both of these new-fashioned remedies being varieties of action on the case(o) . In this way the distinction between proceedings taken on a disputed claim of right, and those taken for the redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed; and therefore, as the distinction of remedies was lost, the distinction between the rights which they protected was lost also. By a series of shifts and devices introduced into legal practice for the ease of litigants a great bulk of what really belonged to the law of property was transferred, in forensic usage and thence in the traditional habit of mind of English lawyers, to the law of torts. In a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor’s intention; hence the archaic law of injuries is a law of absolute liabilty for the direct consequences of a man’s acts, tempered only by partial exceptions in the hardest cases. These archaic ideas of absolute liability made it easy to use the law of wrongful injuries for trying what were really questions of absolute right; and that practice again tended to the preservation of these same archaic ideas in other departments of the law. It will be observed that in our early forms of action contract, as such, has no place at all(p) ; an additional proof of the relatively modern character both of the importance of contract in practical life, and of the growth of the corresponding general notion.

Rationalized version of law of trespass. We are now independent of forms of action. Trespass and trover have become historical landmarks, and the question whether detinue is, or was, an action founded on contract or on tort (if the foregoing statement of the history be correct, it was really neither) survives only to raise difficulties in applying certain provisions of the County Courts Act as to the scale of costs in the Superior Courts(q) . It would seem, therefore, that a rational exposition of the law of torts is free to get rid of the extraneous matter brought in, as we have shown, by the practical exigency of conditions that no longer exist. At the same time a certain amount of excuse may be made on rational grounds for the place and function of the law of trespass to property in the English system. It appears morally unreasonable, at first sight, to require a man at his peril to know what land and goods are his neighbour’s. But it is not so evidently unreasonable to expect him to know what is his own, which is only the statement of the same rule from the other side. A man can but seldom go by pure unwitting misadventure beyond the limits of his own dominion. Either he knows he is not within his legal right, or he takes no heed, or he knows there is a doubt as to his right, but, for causes deemed by him sufficient, he is content to abide (or perhaps intends to provoke) a legal contest by which the doubt may be resolved. In none of these cases can he complain with moral justice of being held to answer for his act. If not wilfully or wantonly injurious, it is done with some want of due circumspection, or else it involves the conscious acceptance of a risk. A form of procedure which attempted to distinguish between these possible cases in detail would for practical purposes hardly be tolerable. Exceptional cases do occur, and may be of real hardship. One can only say that they are thought too exceptional to count in determining the general rule of law. From this point of view we can accept, though we may not actively approve, the inclusion of the morally innocent with the morally guilty trespasses in legal classification.

Analogy of the Roman obligations ex delicto. We may now turn with profit to the comparison of the Roman system with our own. There we find strongly marked the distinction between restitution and penalty, which was apparent in our old forms of action, but became obsolete in the manner above shown. Mr. Moyle(r) thus describes the specific character of obligations ex delicto.

“Such wrongs as the withholding of possession by a defendant who bona fide believes in his own title are not delicts, at any rate in the specific sense in which the term is used in the Institutes; they give rise, it is true, to a right of action, but a right of action is a different thing from an obligatio ex delicto; they are redressed by mere reparation, by the wrong-doer being compelled to put the other in the position in which he would have been had the wrong never been committed. But delicts, as contrasted with them and with contracts, possess three peculiarities. The obligations which arise from them are independent, and do not merely modify obligations already subsisting; they always involve dolus or culpa; and the remedies by which they are redressed are penal.”

Dolus and culpa. The Latin dolus, as a technical term, is not properly rendered by “fraud” in English; its meaning is much wider, and answers to what we generally signify by “unlawful intention.” Culpa is exactly what we mean by “negligence,” the falling short of that care and circumspection which is due from one man to another. The rules specially dealing with this branch have to define the measure of care which the law prescribes as due in the case in hand. The Roman conception of such rules, as worked out by the lawyers of the classical period, is excellently illustrated by the title of the Digest “ad legem Aquiliam,” a storehouse of good sense and good law (for the principles are substantially the same as ours) deserving much more attention at the hands of English lawyers than it has received. It is to be observed that the Roman theory was built up on a foundation of archaic materials by no means unlike our own; the compensation of the civilized law stands instead of a primitive retaliation which was still recognized by the law of the Twelve Tables. If then we put aside the English treatment of rights of property as being accounted for by historical accidents, we find that the Roman conception of delict altogether supports (and by a perfectly independent analogy) the conception that appears really to underlie the English law of tort. Liability for delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them (dolus), or of a failure to observe due care and caution which has similar though not intended or expected consequences (culpa). We have,Liability quasi ex delicto. moreover, apart from the law of trespass, an exceptionally stringent rule in certain cases where liability is attached to the befalling of harm without proof of either intention or negligence, as was mentioned under Group C of our provisional scheme. Such is the case of the landowner who keeps on his land an artificial reservoir of water, if the reservoir bursts and floods the lands of his neighbours. Not that it was wrong of him to have a reservoir there, but the law says he must do so at his own risk(s) . This kind of liability has its parallel in Roman law, and the obligation is said to be not ex delicto, since true delict involves either dolus or culpa, but quasi ex delicto(t) . Whether to avoid the difficulty of proving negligence, or in order to sharpen men’s precaution in hazardous matters by not even allowing them, when harm is once done, to prove that they have been diligent, the mere fact of the mischief happening gives birth to the obligation. In the cases of carriers and innkeepers a similar liability is a very ancient part of our law. Whatever the original reason of it may have been as matter of history, we may be sure that it was something quite unlike the reasons of policy governing the modern class of cases of which Rylands v. Fletcher(u) is the type and leading authority; by such reasons, nevertheless, the rules must be defended as part of the modern law, if they can be defended at all.

Summary. On the whole, the result seems to be partly negative, but also not to be barren. It is hardly possible to frame a definition of a tort that will satisfy all the meanings in which the term has been used by persons and in documents of more or less authority in our law, and will at the same time not be wider than any of the authorities warrant. But it appears that this difficulty or impossibility is due to particular anomalies, and not to a total want of general principles. Disregarding those anomalies, we may try to sum up the normal idea of tort somewhat as follows:—

Tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to harm suffered by a determinate person in one of the following ways:—

• (a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
• (b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.
• (c) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should with due diligence have foreseen and prevented.
• (d) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound, absolutely or within limits, to avoid or prevent.

A special duty of this last kind may be (i) absolute, (ii) limited to answering for harm which is assignable to negligence.

In some positions a man becomes, so to speak, an insurer to the public against a certain risk, in others he warrants only that all has been done for safety that reasonable care can do.

Connected in principle with these special liabilities, but running through the whole subject, and of constant occurrence in almost every division of it, is the rule that a master is answerable for the acts and defaults of his servants in the course of their employment.

This is indication rather than definition: but to have guiding principles indicated is something. We are entitled, and in a manner bound, not to rush forthwith into a detailed enumeration of the several classes of torts, but to seek first the common principles of liability, and then the common principles of immunity which are known as matter of justification and excuse. There are also special conditions and exceptions belonging only to particular branches, and to be considered, therefore, in the places appropriate to those branches.

CHAPTER II.

PRINCIPLES OF LIABILITY.

Want of generality in early law.There is no express authority that I know of for stating as a general proposition of English law that it is a wrong to do wilful harm to one’s neighbour without lawful justification or excuse. Neither is there any express authority for the general proposition that men must perform their contracts. Both principles are in this generality of form or conception, modern, and there was a time when neither was true. Law begins not with authentic general principles, but with enumeration of particular remedies. There is no law of contracts in the modern lawyer’s sense, only a list of certain kinds of agreements which may be enforced. Neither is there any law of delicts, but only a list of certain kinds of injury which have certain penalties assigned to them. Thus in the Anglo-Saxon and other early Germanic laws we find minute assessments of the compensation due for hurts to every member of the human body, but there is no general prohibition of personal violence; and a like state of things appears in the fragments of the Twelve Tables(a) Whatever agreements are outside the specified forms of obligation and modes of proof are incapable of enforcement; whatever injuries are not in the table of compensation must go without legal redress. The phrase damnum sine iniuria, which for the modern law is at best insignificant, has meaning and substance enough in such a system. Only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy.

General duty not to do harm in modern law. Such is not the modern way of regarding legal duties or remedies. It is not only certain favoured kinds of agreement that are protected, but all agreements that satisfy certain general conditions are valid and binding, subject to exceptions which are themselves assignable to general principles of justice and policy. So we can be no longer satisfied in the region of tort with a mere enumeration of actionable injuries. The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe in varying circumstances an appropriate measure of prudence to avoid causing harm to one another. The situations in which we are under no such duty appear at this day not as normal but as exceptional. A man cannot keep shop or walk into the street without being entitled to expect and bound to practise observance in this kind, as we shall more fully see hereafter. If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm; subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned—namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others—are all alike of a comprehensive nature. As our law of contract has been generalized by the doctrine of consideration and the action of assumpsit, so has our law of civil wrongs by the wide and various application of actions on the case(b) .

Acts in breach of specific legal duty. The commission of an act specifically forbidden by law, or the omission or failure to perform any duty specifically imposed by law, is generally equivalent to an act done with intent to cause wrongful injury. Where the harm that ensues from the unlawful act or omission is the very kind of harm which it was the aim of the law to prevent (and this is the commonest case), the justice and necessity of this rule are manifest without further comment. Where a statute, for example, expressly lays upon a railway company the duty of fencing and watching a level crossing, this is a legislative declaration of the diligence to be required of the company in providing against harm to passengers using the road. Even if the mischief to be prevented is not such as an ordinary man would foresee as the probable consequence of disobedience, there is some default in the mere fact that the law is disobeyed; at any rate a court of law cannot admit discussion on that point; and the defaulter must take the consequences. The old-fashioned distinction between mala prohibita and mala in se is long since exploded. The simple omission, after notice, to perform a legal duty, may be a wilful offence within the meaning of a penal statute(c) . As a matter of general policy, there are so many temptations to neglect public duties of all kinds for the sake of private interest that the addition of this quasi-penal sanction as a motive to their observance appears to be no bad thing. Many public duties, however, are wholly created by special statutes. In such cases it is not an universal proposition that a breach of the duty confers a private right of action on any and every person who suffers particular damage from it. The extent of the liabilities incident to a statutory duty must be ascertained from the scope and terms of the statute itself. Acts of Parliament often contain special provisions for enforcing the duties declared by them, and those provisions may be so framed as to exclude expressly, or by implication, any right of private suit(d) . Also there is no cause of action where the damage complained of “is something totally apart from the object of the Act of Parliament,” as being evidently outside the mischiefs which it was intended to prevent. What the legislature has declared to be wrongful for a definite purpose cannot be therefore treated as wrongful for another and different purpose(e) .

Duty of respecting property. As to the duty of respecting proprietary rights, we have already mentioned that it is an absolute one. Further illustration is reserved for the special treatment of that division of the subject.

Duties of diligence. Then we have the general duty of using due care and caution. What is due care and caution under given circumstances has to be worked out in the special treatment of negligence. Here we may say that, generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence.

Assumption of skill. Moreover, if the party has taken in hand the conduct of anything requiring special skill and knowledge, we require of him a competent measure of the skill and knowledge usually found in persons who undertake such matters. And this is hardly an addition to the general rule; for a man of common sense knows wherein he is competent and wherein not, and does not take on himself things in which he is incompetent. If a man will drive a carriage, he is bound to have the ordinary competence of a coachman; if he will handle a ship, of a seaman; if he will treat a wound, of a surgeon; if he will lay bricks, of a bricklayer; and so in every case that can be put. Whoever takes on himself to exercise a craft holds himself out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He must be reasonably skilled at his peril. As the Romans put it, imperitia culpae adnumeratur(f) . A good rider who goes out with a horse he had no cause to think ungovernable, and, notwithstanding all he can do to keep his horse in hand, is run away with by the horse, is not liable for what mischief the horse may do before it is brought under control again(g) ; but if a bad rider is run away with by a horse which a fairly good rider could have kept in order, he will be liable.Exception of necessity. An exception to this principle appears to be admissible in one uncommon but possible kind of circumstances, namely, where in emergency, and to avoid imminent risk, the conduct of something generally entrusted to skilled persons is taken by an unskilled person; as if the crew of a steamer were so disabled by tempest or sickness that the whole conduct of the vessel fell upon an engineer without knowledge of navigation, or a sailor without knowledge of steam-engines. So if the driver and stoker of a train were both disabled, say by sunstroke or lightning, the guard, who is presumably unskilled as concerns driving a locomotive, is evidently not bound to perform the driver’s duties. So again, a person who is present at an accident requiring immediate “first aid,” no skilled aid being on the spot, must act reasonably according to common knowledge if he acts at all; but he cannot be answerable to the same extent that a surgeon would be. There does not seem to be any distinct authority for such cases; but we may assume it to be law that no more is required of a person in this kind of situation than to make a prudent and reasonable use of such skill, be it much or little, as he actually has.

Liability in relation to consequences of act or default. We shall now consider for what consequences of his acts and defaults a man is liable. When complaint is made that one person has caused harm to another, the first question is whether his act(h) was really the cause of that harm in a sense upon which the law can take action. The harm or loss may be traceable to his act, but the connexion may be, in the accustomed phrase, too remote. The maxim “In iure non remota causa sed proxima spectatur” is Englished in Bacon’s constantly cited gloss: “It were infinite for the law to judge the causes of causes, and their impulsions one of another: therefore it contenteth itself with the immediate cause; and judgeth of acts by that, without looking to any further degree”(i) . Liability must be founded on an act which is the “immediate cause” of harm or of injury to a right. Again, there may have been an undoubted wrong, but it may be doubted how much of the harm that ensues is related to the wrongful act as its “immediate cause,” and therefore is to be counted in estimating the wrong-doer’s liability. The distinction of proximate from remote consequences is needful first to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle the footing on which compensation for the wrong is to be awarded.Measure of damages. The normal form of compensation for wrongs, as for breaches of contract, in the procedure of our Superior Courts of common law has been the fixing of damages in money by a jury under the direction of a judge. It is the duty of the judge(k) to explain to the jurors, as a matter of law, the footing upon which they should calculate the damages if their verdict is for the plaintiff. This footing or scheme is called the “measure of damages.” Thus, in the common case of a breach of contract for the sale of goods, the measure of damages is the difference between the price named in the contract and the market value of the like goods at the time when the contract was broken. In cases of contract there is no trouble in separating the question whether a contract has been made and broken from the question what is the proper measure of damages(l) . But in cases of tort the primary question of liability may itself depend, and it often does, on the nearness or remoteness of the harm complained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of compensation. The measure of damages, a matter appearing at first sight to belong to the law of remedies more than of “antecedent rights,” constantly involves, in the field of torts, points that are in truth of the very substance of the law. It is under the head of “measure of damages” that these for the most part occur in practice, and are familiar to lawyers; but their real connexion with the leading principles of the subject must not be overlooked here.

Meaning of “immediate cause.” The meaning of the term “immediate cause” is not capable of perfect or general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the same. In fact, our maxim only points out that some consequences are held too remote to be counted. What is the test of remoteness we still have to inquire. The view which I shall endeavour to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed “immediate,” “proximate,” or, to anticipate a little, “natural and probable,” which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was “immediate” or not does not matter. That which a man actually foresees is to him, at all events, natural and probable.

Liability for consequences of wilful act: In the case of wilful wrong-doing we have an act intended to do harm, and harm done by it. The inference of liability from such an act (given the general rule, and assuming no just cause of exception to be present) may seem a plain matter. But even in this first case it is not so plain as it seems. We have to consider the relation of that which the wrong-doer intends to the events which in fact are brought to pass by his deed; a relation which is not constant, nor always evident. A man strikes at another with his fist or a stick, and the blow takes effect as he meant it to do. Here the connexion of act and consequence is plain enough, and the wrongful actor is liable for the resulting hurt.it extends to some consequences not intended. But the consequence may be more than was intended, or different. And it may be different either in respect of the event, or of the person affected. Nym quarrels with Pistol and knocks him down. The blow is not serious in itself, but Pistol falls on a heap of stones which cut and bruise him. Or they are on the bank of a deep ditch; Nym does not mean to put Pistol into the ditch, but his blow throws Pistol off his balance, whereby Pistol does fall into the ditch, and his clothes are spoilt. These are simple cases where a different consequence from that which was intended happens as an incident of the same action. Again, one of Jack Cade’s men throws a stone at an alderman. The stone misses the alderman, but strikes and breaks a jug of beer which another citizen is carrying. Or Nym and Bardolph agree to waylay and beat Pistol after dark. Poins comes along the road at the time and place where they expect Pistol; and, taking him for Pistol, Bardolph and Nym seize and beat Poins. Clearly, just as much wrong is done to Poins, and he has the same claim to redress, as if Bardolph and Nym meant to beat Poins, and not Pistol(m) . Or, to take an actual and well-known case in our books(n) , Shepherd throws a lighted squib into a building full of people, doubtless intending it to do mischief of some kind. It falls near a person who, by an instant and natural act of self-protection, casts it from him. A third person again does the same. In this third flight the squib meets with Scott, strikes him in the face, and explodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such grave harm to any one; but he is none the less liable to Scott. And so in the other cases put, it is clear law that the wrong-doer is liable to make good the consequences, and it is likewise obvious to common sense that he ought to be. He went about to do harm, and having begun an act of wrongful mischief, he cannot stop the risk at his pleasure, nor confine it to the precise objects he laid out, but must abide it fully and to the end.

“Natural consequences:” relation of the rule to the actor’s intention. This principle is commonly expressed in the maxim that “a man is presumed to intend the natural consequences of his acts:” a proposition which, with due explanation and within due limits, is acceptable, but which in itself is ambiguous. To start from the simplest case, we may know that the man intended to produce a certain consequence, and did produce it. And we may have independent proof of the intention; as if he announced it beforehand by threats or boasting of what he would do. But oftentimes the act itself is the chief or sole proof of the intention with which it is done. If we see Nym walk up to Pistol and knock him down, we infer that Pistol’s fall was intended by Nym as the consequence of the blow. We may be mistaken in this judgment. Possibly Nym is walking in his sleep, and has no real intention at all, at any rate none which can be imputed to Nym awake. But we do naturally infer intention, and the chances are greatly in favour of our being right. So nobody could doubt that when Shepherd threw a lighted squib into a crowded place he expected and meant mischief of some kind to be done by it. Thus far it is a real inference, not a presumption properly so called. Now take the case of Nym knocking Pistol over a bank into the ditch. We will suppose there is nothing (as there well may be nothing but Nym’s own worthless assertion) to show whether Nym knew the ditch was there; or, if he did know, whether he meant Pistol to fall into it. These questions are like enough to be insoluble. How shall we deal with them? We shall disregard them. From Nym’s point of view his purpose may have been simply to knock Pistol down, or to knock him into the ditch also; from Pistol’s point of view the grievance is the same. The wrong-doer cannot call on us to perform a nice discrimination of that which is willed by him from that which is only consequential on the strictly wilful wrong. We say that intention is presumed, meaning that it does not matter whether intention can be proved or not; nay, more, it would in the majority of cases make no difference if the wrong-doer could disprove it. Such an explanation as this—“I did mean to knock you down, but I meant you not to fall into the ditch”—would, even if believed, be the lamest of apologies, and it would no less be a vain excuse in law.

The habit by which we speak of presumption comes probably from the time when,Meaning of “natural and probable” consequence. inasmuch as parties could not give evidence, intention could hardly ever be matter of direct proof. Under the old system of pleading and procedure, Brian C. J. might well say, “the thought of man is not triable”(o) . Still there is more in our maxim than this. For although we do not care whether the man intended the particular consequence or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contemplated as possible; so that it would not be absurd to infer as a fact that he either did mean them to ensue, or recklessly put aside the risk of some such consequences ensuing. This is the limit introduced by such terms as “natural”—or more fully, “natural and probable”—consequence(p) . What is natural and probable in this sense is commonly, but not always, obvious. There are consequences which no man could, with common sense and observation, help foreseeing. There are others which no human prudence could have foreseen. Between these extremes is a middle region of various probabilities divided by an ideal boundary which will be differently fixed by different opinions; and as we approach this boundary the difficulties increase. There is a point where subsequent events are, according to common understanding, the consequence not of the first wrongful act at all, but of something else that has happened in the meanwhile, though, but for the first act, the event might or could not have been what it was(q) . But that point cannot be defined by science or philosophy(r) ; and even if it could, the definition would not be of much use for the guidance of juries. If English law seems vague on these questions, it is because, in the analysis made necessary by the separation of findings of fact from conclusions of law, it has grappled more closely with the inherent vagueness of facts than any other system. We may now take some illustrations of the rule of “natural and probable consequences” as it is generally accepted. In whatever form we state it, we must remember that it is not a logical definition, but only a guide to the exercise of common sense. The lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause.

Vandenburgh v. Truax. In Vandenburgh v. Truax(s) , decided by the Supreme Court of New York in 1847, the plaintiff’s servant and the defendant quarrelled in the street. The defendant took hold of the servant, who broke loose from him and ran away; “the defendant took up a pick-axe and followed the boy, who fled into the plaintiff’s store, and the defendant pursued him there, with the pick-axe in his hand.” In running behind the counter for shelter the servant knocked out the faucet from a cask of wine, whereby the wine ran out and was lost. Here the defendant (whatever the merits of the original quarrel) was clearly a wrong-doer in pursuing the boy; the plaintiff’s house was a natural place for his servant to take refuge in, and it was also natural that the servant, “fleeing for his life from a man in hot pursuit armed with a deadly weapon,” should, in his hasty movements, do some damage to the plaintiff’s property in the shop.

Guille v. Swan. There was a curious earlier case in the same State(t) , where one Guille, after going up in a balloon, came down in Swan’s garden. A crowd of people, attracted by the balloon, broke into the garden and trod down the vegetables and flowers. Guille’s descent was in itself plainly a trespass; and he was held liable not only for the damage done by the balloon itself but for that which was done by the crowd. “If his descent under such circumstances would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for”(u) . In both these cases the squib case was commented and relied on. Similarly it has many times been said, and it is undoubted law, that if a man lets loose a dangerous animal in an inhabited place he is liable for all the mischief it may do.

Liability for consequences of trespass. The balloon case illustrates what was observed in the first chapter on the place of trespass in the law of torts. The trespass was not in the common sense wilful; Guille certainly did not mean to come down into Swan’s garden, which he did, in fact, with some danger to himself. But a man who goes up in a balloon must know that he has to come down somewhere, and that he cannot be sure of coming down in a place which he is entitled to use for that purpose, or where his descent will cause no damage and excite no objection. Guille’s liability was accordingly the same as if the balloon had been under his control, and he had guided it into Swan’s garden. If balloons were as manageable as a vessel at sea, and by some accident which could not be ascribed to any fault of the traveller the steering apparatus got out of order, and so the balloon drifted into a neighbour’s garden, the result might be different. So, if a landslip carries away my land and house from a hillside on which the house is built, and myself in the house, and leaves all overlying a neighbour’s field in the valley, it cannot be said that I am liable for the damage to my neighbour’s land; indeed, there is not even a technical trespass, for there is no voluntary act at all. But where trespass to property is committed by a voluntary act, known or not known to be an infringement of another’s right, there the trespasser, as regards liability for consequences, is on the same footing as a wilful wrong-doer.

Consequence too remote: Glover v. L. & S. W. Rail. Co. A simple example of a consequence too remote to be ground for liability, though it was part of the incidents following on a wrongful act, is afforded by Glover v. London and South Western Railway Company(v) . The plaintiff, being a passenger on the railway, was charged by the company’s ticket collector, wrongly as it turned out, with not having a ticket, and was removed from the train by the company’s servants with no more force than was necessary for the purpose. He left a pair of race-glasses in the carriage, which were lost; and he sought to hold the company liable not only for the personal assault committed by taking him out of the train, but for the value of these glasses. The Court held without difficulty that the loss was not the “necessary consequence” or “immediate result” of the wrongful act: for there was nothing to show that the plaintiff was prevented from taking his glasses with him, or that he would not have got them if after leaving the carriage he had asked for them.

Question of what is killing in criminal law. In criminal law the question not unfrequently occurs, on a charge of murder or manslaughter, whether a certain act or neglect was the “immediate cause” of the death of the deceased person. We shall not enter here upon the cases on this head; but the comparison of them will be found interesting. They are collected by Sir James Stephen(x) .

Liability for negligence depends on probability of consequence, i.e., its capability of being foreseen by a reasonable man. The doctrine of “natural and probable consequence” is most clearly illustrated, however, in the law of negligence. For there the substance of the wrong itself is failure to act with due foresight: it has been defined as “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”(y) . Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability. And the statement proposed, though not positively laid down, in Greenland v. Chaplin(z) , namely, “that a person is expected to anticipate and guard against all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur,” appears to contain the only rule tenable on principle where the liability is founded solely on negligence. “Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated,” may be the ground of legal compensation under some rule of exceptional severity, and such rules, for various reasons, exist; but under an ordinary rule of due care and caution it cannot be taken into account.

Examples: We shall now give examples on either side of the line.

Hill v. New River Co. In Hill v. New River Company(a) , the defendant company had in the course of their works caused a stream of water to spout up in the middle of a public road, without making any provision, such as fencing or watching it, for the safety of persons using the highway. As the plaintiff’s horses and carriage were being driven along the road, the horses shied at the water, dashed across the road, and fell into an open excavation by the roadside which had been made by persons and for purposes unconnected with the water company. It was argued that the immediate cause of the injuries to man, horses, and carriage ensuing upon this fall was not the unlawful act of the water company, but the neglect of the contractors who had made the cutting in leaving it open and unfenced. But the Court held that the “proximate cause” was “the first negligent act which drove the carriage and horses into the excavation.” In fact, it was a natural consequence that frightened horses should bolt off the road; it could not be foreseen exactly where they would go off, or what they might run against or fall into. But some such harm as did happen was probable enough, and it was immaterial for the purpose in hand whether the actual state of the ground was temporary or permanent, the work of nature or of man. If the carriage had gone into a river, or over an embankment, or down a precipice, it would scarcely have been possible to raise the doubt.

Williams v. G. W. Rail. Co.Williams v. Great Western Railway Company(b) is a stronger case, if not an extreme one. There were on a portion of the company’s line in Denbighshire two level crossings near one another, the railway meeting a carriage-road in one place and a footpath (which branched off from the road) in the other. It was the duty of the company under certain Acts to have gates and a watchman at the road crossing, and a gate or stile at the footpath crossing; but none of these things had been done.

“On the 22nd December, 1871, the plaintiff, a child of four and a-half years old, was found lying on the rails by the footpath, with one foot severed from his body. There was no evidence to show how the child had come there, beyond this, that he had been sent on an errand a few minutes before from the cottage where he lived, which lay by the roadside, at about 300 yards distance from the railway, and farther from it than the point where the footpath diverged from the road. It was suggested on the part of the defendants that he had gone along the road, and then, reaching the railway, had strayed down the line; and on the part of the plaintiff, that he had gone along the open footpath, and was crossing the line when he was knocked down and injured by the passing train.”

On these facts it was held that there was evidence proper to go to a jury, and on which they might reasonably find that the accident to the child was caused by the railway company’s omission to provide a gate or stile. “One at least of the objects for which a gate or stile is required is to warn people of what is before them, and to make them pause before reaching a dangerous place like a railroad”(c) .

Bailiffs of Romney Marsh v. Trinity House. In Bailiffs of Romney Marsh v. Trinity House(d) , a Trinity House cutter had by negligent navigation struck on a shoal about three-quarters of a mile outside the plaintiffs’ sea-wall. Becoming unmanageable, the vessel was inevitably driven by strong wind and tide against the sea-wall, and did much damage to the wall. It was held without difficulty that the Corporation of the Trinity House was liable (under the ordinary rule of a master’s responsibility for his servants, of which hereafter) for this damage, as being the direct consequence of the first default which rendered the vessel unmanageable.

Lynch v. Nurdin. Something like this, but not so simple, was Lynch v. Nurdin(e) , where the owner of a horse and cart left them unwatched in the street; some children came up and began playing about the cart, and as one of them, the plaintiff in the cause, was climbing into the cart another pulled the horse’s bridle, the horse moved on, and the plaintiff fell down under the wheel of the cart and was hurt. The owner who had left the cart and horse unattended was held liable for this injury. The Court thought it strictly within the province of a jury “to pronounce on all the circumstances, whether the defendant’s conduct was wanting in ordinary care, and the harm to the plaintiff such a result of it as might have been expected”(f) .

Contrasted cases of non-liability and liability: Cox v. Burbidge, Lee v. Riley. It will be seen that on the whole the disposition of the Courts has been to extend rather than to narrow the range of “natural and probable consequences.” A pair of cases at first sight pretty much alike in their facts, but in one of which the claim succeeded, while in the other it failed, will show where the line is drawn. If a horse escapes into a public road and kicks a person who is lawfully on the road, its owner is not liable unless he knew the horse to be vicious(g) . He was bound indeed to keep his horse from straying, but it is not an ordinary consequence of a horse being loose on a road that it should kick human beings without provocation. The rule is different however if a horse by reason of a defective gate strays not into the road but into an adjoining field where there are other horses, and kicks one of those horses. In that case the person whose duty it was to maintain the gate is liable to the owner of the injured horse(h) .

Metropolitan Rail. Co. v. Jackson. The leading case of Metropolitan Rail. Co. v. Jackson(i) is in truth of this class, though the problem arose and was considered, in form, upon the question whether there was any evidence of negligence. The plaintiff was a passenger in a carriage already over-full. As the train was stopping at a station, he stood up to resist yet other persons who had opened the door and tried to press in. While he was thus standing, and the door was open, the train moved on. He laid his hand on the door-lintel for support, and at the same moment a porter came up, turned off the intruders, and quickly shut the door in the usual manner. The plaintiff’s thumb was caught by the door and crushed. After much difference of opinion in the courts below, mainly due to a too literal following of certain previous authorities, the House of Lords unanimously held that, assuming the failure to prevent overcrowding to be negligence on the company’s part, the hurt suffered by the plaintiff was not nearly or certainly enough connected with it to give him a cause of action. It was an accident which might no less have happened if the carriage had not been overcrowded at all.

Non-liability for consequences of unusual state of things: Blyth v. Birmingham Waterworks Co. Unusual conditions brought about by severe frost have more than once been the occasion of accidents on which untenable claims for compensation have been founded, the Courts holding that the mishap was not such as the party charged with causing it by his negligence could reasonably be expected to provide against. In the memorable “Crimean winter” of 1854-5 a fire-plug attached to one of the mains of the Birmingham Waterworks Company was deranged by the frost, the expansion of superficial ice forcing out the plug, as it afterwards seemed, and the water from the main being dammed by incrusted ice and snow above. The escaping water found its way through the ground into the cellar of a private house, and the occupier sought to recover from the company for the damage. The Court held that the accident was manifestly an extraordinary one, and beyond any such foresight as could be reasonably required(k) . Here nothing was alleged as constituting a wrong on the company’s part beyond the mere fact that they did not take extraordinary precautions.

Sharp v. Powell. The later case of Sharp v. Powell(l) goes farther, as the story begins with an act on the defendant’s part which was a clear breach of the law. He caused his van to be washed in a public street, contrary to the Metropolitan Police Act. The water ran down a gutter, and would in fact(m) (but for a hard frost which had then set in for some time) have run harmlessly down a grating into the sewer, at a corner some twenty-five yards from where the van was washed. As it happened, the grating was frozen over, the water spread out and froze into a sheet of ice, and a led horse of the plaintiff’s slipped thereon and broke its knee. It did not appear that the defendant or his servants knew of the stoppage of the grating. The Court thought the damage was not “within the ordinary consequences”(n) of such an act as the defendant’s, not “one which the defendant could fairly be expected to anticipate as likely to ensue from his act”(o) : he “could not reasonably be expected to foresee that the water would accumulate and freeze at the spot where the accident happened”(p) .

Question, if the same rule holds for consequences of wilful wrong: Clark v. Chambers. Some doubt appears to be cast on the rule thus laid down—which, it is submitted, is the right one—by what was said a few years later in Clark v. Chambers(q) , though not by the decision itself. This case raises the question whether the liability of a wrong-doer may not extend even to remote and unlikely consequences where the original wrong is a wilful trespass, or consists in the unlawful or careless use of a dangerous instrument. The main facts were as follows:—

1. The defendant without authority set a barrier, partly armed with spikes (chevaux-de-frise), across a road subject to other persons’ rights of way. An opening was at most times left in the middle of the barrier, and was there at the time when the mischief happened.

2. The plaintiff went after dark along this road and through the opening, by the invitation of the occupier of one of the houses to which the right of using the road belonged, and in order to go to that house.

3. Some one, not the defendant or any one authorized by him, had removed one of the chevaux-de-frise barriers, and set it on end on the footpath. It was suggested, but not proved, that this was done by a person entitled to use the road, in exercise of his right to remove the unlawful obstruction.

4. Returning later in the evening from his friend’s house, the plaintiff, after safely passing through the central opening above mentioned, turned on to the footpath. He there came against the chevaux-de-frise thus displaced (which he could not see, the night being very dark), and one of the spikes put out his eye.

After a verdict for the plaintiff the case was reserved for further consideration, and the Court(r) held that the damage was nearly enough connected with the defendant’s first wrongful act—namely, obstructing the road with instruments dangerous to people lawfully using it—for the plaintiff to be entitled to judgment. It is not obvious why and how, if the consequence in Clark v. Chambers was natural and probable enough to justify a verdict for the plaintiff, that in Sharp v. Powell was too remote to be submitted to a jury at all. The Court did not dispute the correctness of the judgments in Sharp v. Powell “as applicable to the circumstances of the particular case;” but their final observations(s) certainly tend to the opinion that in a case of active wrong-doing the rule is different. Such an opinion, it is submitted, is against the general weight of authority, and against the principles underlying the authorities(t) . However, their conclusion may be supported, and may have been to some extent determined, by the special rule imposing the duty of what has been called “consummate caution” on persons dealing with dangerous instruments.

Consequences natural in kind though not in circumstance. Perhaps the real solution is that here, as in Hill v. New River Co.(tt) , the kind of harm which in fact happened might have been expected, though the precise manner in which it happened was determined by an extraneous accident. If in this case the spikes had not been disturbed, and the plaintiff had in the dark missed the free space left in the barrier, and run against the spiked part of it, the defendant’s liability could not have been disputed. As it was, the obstruction was not exactly where the defendant had put it, but still it was an obstruction to that road which had been wrongfully brought there by him. He had put it in the plaintiff’s way no less than Shepherd put his squib in the way of striking Scott; whereas in Sharp v. Powell the mischief was not of a kind which the defendant had any reason to foresee.

The turn taken by the discussion in Clark v. Chambers was, in this view, unnecessary, and it is to be regretted that a considered judgment was delivered in a form tending to unsettle an accepted rule without putting anything definite in its place. On the whole, I submit that, whether Clark v. Chambers can stand with it or not, both principle and the current of authority concur to maintain the law as declared in Sharp v. Powell.

Damages for “nervous or mental shock” whether too remote. Where a wrongful or negligent act of A., threatening Z. with immediate bodily hurt, but not causing such hurt, produces in Z. a sudden terror or “nervous shock” from which bodily illness afterwards ensues, is this damage too remote to enter into the measure of damages if A.’s act was an absolute wrong, or to give Z. a cause of action if actual damage is the gist of the action? The Judicial Committee decided in 1888(u) that such consequences are too remote; but it is submitted that the decision is not satisfactory. A husband and wife were driving in a buggy across a level railway crossing, and, through the obvious and admitted negligence of the gatekeeper, the buggy was nearly but not quite run down by a train; the husband “got the buggy across the line, so that the train, which was going at a rapid speed, passed close to the back of it and did not touch it.” The wife then and there fainted, and it was proved to the satisfaction of the Court below “that she received a severe nervous shock from the fright, and that the illness from which she afterwards suffered was the consequence of the fright.” It may be conceded that the passion of fear, or any other emotion of the mind, however painful and distressing it be, and however reasonable the apprehension which causes it, cannot in itself be regarded as measurable temporal damage; and that the judgment appealed from, if and so far as it purported to allow any distinct damages for “mental injuries”(x) , was erroneous. But their Lordships seem to have treated this as obviously involving the further proposition that physical illness caused by reasonable fear is on the same footing. This does not follow. The true question would seem to be whether the fear in which the plaintiff was put by the defendant’s wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might thereupon naturally and probably lead, in the plaintiff’s case(y) , to the physical effects complained of. Fear taken alone falls short of being actual damage, not because it is a remote or unlikely consequence, but because it can be proved and measured only by physical effects. The opinion of the Judicial Committee, outside the colony of Victoria, is as extra-judicial as the contrary and (it is submitted) better opinion expressed in two places(z) by Sir James Stephen as to the possible commission of murder or manslaughter by the wilful or reckless infliction of “nervous shock,” or the later contrary decisions in Ireland and New York(a) . And if the reasoning of the Judicial Committee be correct, it becomes rather difficult to see on what principle assault without battery is an actionable wrong(a) .

CHAPTER III.

PERSONS AFFECTED BY TORTS.

1.—

Limitations of Personal Capacity.

Personal status, as a rule, immaterial in law of tort: but capacity in fact may be material.In the law of contract various grounds of personal disability have to be considered with some care. Infants, married women, lunatics, are in different degrees and for different reasons incapable of the duties and rights arising out of contracts. In the law of tort it is otherwise. Generally speaking, there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtaining redress for them. It seems on principle that where a particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it sometimes is, in constituting the alleged wrong, the age and mental capacity of the person may and should be taken into account (along with other relevant circumstances) in order to ascertain as a fact whether that intention, knowledge, or state of mind was present. But in every case it would be a question of fact, and no exception to the general rule would be established or propounded(a) . An idiot would scarcely be held answerable for incoherent words of vituperation, though, if uttered by a sane man, they might be slander. But this would not help a monomaniac who should write libellous post-cards to all the people who had refused or neglected, say to supply him with funds to recover the Crown of England. The amount of damages recovered might be reduced by reason of the evident insignificance of such libels; but that would be all. Again, a mere child could not be held accountable for not using the discretion of a man; but an infant is certainly liable for all wrongs of omission as well as of commission in matters where he was, in the common phrase, old enough to know better. It is a matter of common sense, just as we do not expect of a blind man the same actions or readiness to act as of a seeing man.

Partial or apparent exceptions: There exist partial exceptions, however, in the case of convicts and alien enemies, and apparent exceptions as to infants and married women.

Convicts and alien enemies. A convicted felon whose sentence is in force and unexpired, and who is not “lawfully at large under any licence,” cannot sue “for the recovery of any property, debt, or damage whatsoever”(b) . An alien enemy cannot sue in his own right in any English court. Nor is the operation of the Statute of Limitations suspended, it seems, by the personal disability(c) .

Infants: contract not to be indirectly enforced by suing in tort. With regard to infants, there were certain cases under the old system of pleading in which there was an option to sue for breach of contract or for a tort. In such a case an infant could not be made liable for what was in truth a breach of contract by framing the action ex delicto. “You cannot convert a contract into a tort to enable you to sue an infant: Jennings v. Rundall”(d) . And the principle goes to this extent, that no action lies against an infant for a fraud whereby he has induced a person to contract with him, such as a false statement that he is of full age(e) .

Limits of the rule: independent wrongs. But where an infant commits a wrong of which a contract, or the obtaining of something under a contract, is the occasion, but only the occasion, he is liable. In Burnard v. Haggis(f) , the defendant in the County Court, an infant undergraduate, hired a horse for riding on the express condition that it was not to be used for jumping; he went out with a friend who rode this horse by his desire, and, making a cut across country, they jumped divers hedges and ditches, and the horse staked itself on a fence and was fatally injured. Having thus caused the horse to be used in a manner wholly unauthorized by its owner, the defendant was held to have committed a mere trespass or “independent tort”(g) , for which he was liable to the owner apart from any question of contract, just as if he had mounted and ridden the horse without hiring or leave.

Infant shall not take advantage of his own fraud. Also it has been established by various decisions in the Court of Chancery that “an infant cannot take advantage of his own fraud:” that is, he may be compelled to specific restitution, where that is possible, of anything he has obtained by deceit, nor can he hold other persons liable for acts done on the faith of his false statement, which would have been duly done if the statement had been true(h) . Thus, where an infant had obtained a lease of a furnished house by representing himself as a responsible person and of full age, the lease was declared void, and the lessor to be entitled to delivery of possession, and to an injunction to restrain the lessee from dealing with the furniture and effects, but not to damages for use and occupation (h) .

Married women: the common law. As to married women, a married woman was by the common law incapable of binding herself by contract, and therefore, like an infant, she could not be made liable as for a wrong in an action for deceit or the like, when this would have in substance amounted to making her liable on a contract(i) . In other cases of wrong she was not under any disability, nor had she any immunity; but she had to sue and be sued jointly with her husband, inasmuch as her property was the husband’s; and the husband got the benefit of a favourable judgment and was liable to the consequences of an adverse one.

Married Women’s Property Act, 1882. Since the Married Women’s Property Act, 1882, a married woman can acquire and hold separate property in her own name, and sue and be sued without joining her husband. If she is sued alone, damages and costs recovered against her are payable out of her separate property(k) . If a husband and wife sue jointly for personal injuries to the wife, the damages recovered are the wife’s separate property(l) . She may sue her own husband, if necessary, “for the protection and security of her own separate property”; but otherwise actions for a tort between husband and wife cannot be entertained(m) . That is, a wife may sue her husband in an action which under the old forms of pleading would have been trover for the recovery of her goods, or for a trespass or nuisance to land held by her as her separate property; but she may not sue him in a civil action for a personal wrong, such as assault, libel, or injury by negligence. Divorce does not enable the divorced wife to sue her husband for a personal tort committed during the coverture(n) . There is not anything in the Act to prevent a husband and wife from suing or being sued jointly according to the old practice; the husband is not relieved from liability for wrongs committed by the wife during coverture, and may still be joined as a defendant at need. If it were not so, a married woman having no separate property might commit wrongs with impunity(o) If husband and wife are now jointly sued for the wife’s wrong, and execution issues against the husband’s property, a question may possibly be raised whether the husband is entitled to indemnity from the wife’s separate property, if in fact she has any(p) .

Common law liability of infants and married women limited, according to some, to wrongs contra pacem. There is some authority for the doctrine that by the common law both infants(q) and married women(r) are liable only for “actual torts” such as trespass, which were formerly laid in pleading as contra pacem, and are not in any case liable for torts in the nature of deceit, or, in the old phrase, in actions which “sound in deceit.” But this does not seem acceptable on principle.

Corporations. As to corporations, it is evident that personal injuries, in the sense of bodily harm or offence, cannot be inflicted upon them. Neither can a corporation be injured in respect of merely personal reputation. It can sue for a libel affecting property, but not for a libel purporting to charge the corporation as a whole with corruption, for example. The individual officers or members of the corporation whose action is reflected on are the only proper plaintiffs in such a case(s) . It would seem at first sight, and it was long supposed, that a corporation also cannot be liable for personal wrongs(t) . But this is really part of the larger question of the liability of principals and employers for the conduct of persons employed by them; for a corporation can act and become liable only through its agents or servants. In that connexion we recur to the matter further on.

The greatest difficulty has been (and by some good authorities still is) felt in those kinds of cases where “malice in fact”—actual ill-will or evil motive—has to be proved.

Responsibility of public bodies for management of works, &c. under their control. Where bodies of persons, incorporated or not, are intrusted with the management and maintenance of works, or the performance of other duties of a public nature, they are in their corporate or quasi-corporate capacity responsible for the proper conduct of their undertakings no less than if they were private owners: and this whether they derive any profit from the undertaking or not(u) .

The same principle has been applied to the management of a public harbour by the executive government of a British colony(x) . The rule is subject, of course, to the special statutory provisions as to liability and remedies that may exist in any particular case(y) .

2.—

Effect of a Party’s Death.

Effect of death of either party. Actio personalis moritur cum persona. We have next to consider the effect produced on liability for a wrong by the death of either the person wronged or the wrong-doer. This is one of the least rational parts of our law. The common law maxim is actio personalis moritur cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. This maxim “is one of some antiquity, but its origin is obscure and post-classical”(z) . Causes of action on a contract are quite as much “personal” in the technical sense, but, with the exception of promises of marriage, and (it seems) injuries to the person by negligent performance of a contract, the maxim does not apply to these. In cases of tort not falling within statutory exceptions, to be presently mentioned, the estate of the person wronged has no claim, and that of the wrong-doer is not liable. Where an action on a tort is referred to arbitration, and one of the parties dies after the hearing but before the making of the award, the cause of action is extinguished notwithstanding a clause in the order of reference providing for delivery of the award to the personal representatives of a party dying before the award is made. Such a clause is insensible with regard to a cause of action in tort; the agreement for reference being directed merely to the mode of trial, and not extending to alter the rights of the parties(a) . A very similar rule existed in Roman law, with the modification that the inheritance of a man who had increased his estate by dolus was bound to restore the profit so gained, and that in some cases heirs might sue but could not be sued(b) . Whether derived from a hasty following of the Roman rule or otherwise, the common law knew no such variations; the maxim was absolute. At one time it may have been justified by the vindictive and quasi-criminal character of suits for civil injuries. A process which is still felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man’s estate, an impersonal abstraction represented no doubt by one or more living persons, but by persons who need not be of kin to the deceased. Some such feeling seems to be implied in the dictum, “If one doth a trespass to me, and dieth, the action is dead also, because it should be inconvenient to recover against one who was not party to the wrong”(c) . Indeed, the survival of a cause of action was the exception in the earliest English law(d) .

A barbarous rule. But when once the notion of vengeance has been put aside, and that of compensation substituted, the rule actio personalis moritur cum persona seems to be without plausible ground. First, as to the liability, it is impossible to see why a wrong-doer’s estate should ever be exempted from making satisfaction for his wrongs. It is better that the residuary legatee should be to some extent cut short than that the person wronged should be deprived of redress. The legatee can in any case take only what prior claims leave for him, and there would be no hardship in his taking subject to all obligations, ex delicto as well as ex contractu, to which his testator was liable. Still less could the reversal of the rule be a just cause of complaint in the case of intestate succession. Then as to the right: it is supposed that personal injuries cause no damage to a man’s estate, and therefore after his death the wrong-doer has nothing to account for. But this is oftentimes not so in fact. And, in any case, why should the law, contrary to its own principles and maxims in other departments, presume it, in favour of the wrong-doer, so to be? Here one may almost say that omnia praesumuntur pro spoliatore. Personal wrongs, it is allowed, may “operate to the temporal injury” of the personal estate, but without express allegation the Court will not intend it(e) , though in the case of a wrong not strictly personal it is enough if such damage appears by necessary implication(f) . The burden should rather lie on the wrong-doer to show that the estate has not suffered appreciable damage. But it is needless to pursue the argument of principle against a rule which has been made at all tolerable for a civilized country only by a series of exceptions(g) ; of which presently.

Extension of the rule in Osborn v. Gillett. The rule has even been pushed to this extent, that the death of a human being cannot be a cause of action in a civil Court for a person not claiming through or representing the person killed, who in the case of an injury short of death would have been entitled to sue. A master can sue for injuries done to his servant by a wrongful act or neglect, whereby the service of the servant is lost to the master. But if the injury causes the servant’s death, it is held that the master’s right to compensation is gone(h) . We must say it is so held, as the decision has not been overruled, or, that I know of, judicially questioned. But the dissent of Lord Bramwell is enough to throw doubt upon it. The previous authorities are inconclusive, and the reasoning of Lord Bramwell’s (then Baron Bramwell’s) judgment is, I submit, unanswerable on principle. At all events “actio personalis moritur cum persona” will not serve in this case. Here the person who dies is the servant; his own cause of action dies with him, according to the maxim, and his executors cannot sue for the benefit of his estate(i) . But the master’s cause of action is altogether a different one. He does not represent or claim through the servant; he sues in his own right, for another injury, on another estimation of damage; the two actions are independent, and recovery in the one action is no bar to recovery in the other. Nothing but the want of positive authority can be shown against the action being maintainable. And if want of authority were fatal, more than one modern addition to the resources of the Common Law must have been rejected(k) . It is alleged, indeed, that “the policy of the law refuses to recognize the interest of one person in the death of another”(l) —a reason which would make life insurance and leases for lives illegal. Another and equally absurd reason sometimes given for the rule is that the value of human life is too great to be estimated in money: in other words, because the compensation cannot be adequate there shall be no compensation at all(m) . It is true that the action by a master for loss of service consequential on a wrong done to his servant belongs to a somewhat archaic head of the law which has now become almost anomalous; perhaps it is not too much to say that in our own time the Courts have discouraged it. This we shall see in its due place. But that is no sufficient reason for discouraging the action in a particular case by straining the application of a rule in itself absurd. Osborn v. Gillett stands in the book, and we cannot actually say it is not law; but one would like to see the point reconsidered by the Court of Appeal(n) .

Exceptions: Statutes of Ed. III. giving executors right of suit for trespasses. We now proceed to the exceptions. The first amendment was made as long ago as 1330, by the statute 4 Ed. III. c. 7, of which the English version runs thus:

Item, whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life.

The right was expressly extended to executors of executors by 25 Ed. III. st. 5, c. 5, and was construed to extend to administrators(o) . It was held not to include injuries to the person or to the testator’s freehold, and it does not include personal defamation, but it seems to extend to all other wrongs where special damage to the personal estate is shown(p) .

Of Will. IV. as to injuries to property. Then by 3 & 4 Will. IV. c. 42 (ad 1833) actionable injuries to the real estate of any person committed within six calendar months before his death may be sued upon by his personal representatives, for the benefit of his personal estate, within one year after his death: and a man’s estate can be made liable, through his personal representatives, for wrongs done by him within six calendar months before his death “to another in respect of his property, real or personal.” In this latter case the action must be brought against the wrong-doer’s representatives within six months after they have entered on their office. Under this statute the executor of a tenant for life has been held liable to the remainderman for waste committed during the tenancy(q) .

No right of action for damage to personal estate consequential on personal injury. Nothing in these statutes affects the case of a personal injury causing death, for which according to the maxim there is no remedy at all. It has been attempted to maintain that damage to the personal estate by reason of a personal injury, such as expenses of medical attendance, and loss of income through inability to work or attend to business, will bring the case within the statute of Edward III. But it is held that “where the cause of action is in substance an injury to the person,” an action by personal representatives cannot be admitted on this ground: the original wrong itself, not only its consequences, must be an injury to property(r) .

Lord Campbell’s Act: peculiar rights created by it. Railway accidents, towards the middle of the present century, brought the hardship of the common law rule into prominence. A man who was maimed or reduced to imbecility by the negligence of a railway company’s servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell’s Act (9 & 10 Vict. c. 93, ad 1846), a statute extremely characteristic of English legislation(s) . Instead of abolishing the barbarous rule which was the root of the mischief complained of, it created a new and anomalous kind of right and remedy by way of exception. It is entitled “An Act for compensating the Families of Persons killed by Accidents”: it confers a right of action on the personal representatives of a person whose death has been caused by a wrongful act, neglect, or default such that if death had not ensued that person might have maintained an action; but the right conferred is not for the benefit of the personal estate, but “for the benefit of the wife, husband, parent, and child(t) of the person whose death shall have been so caused.” The action must be commenced within twelve calendar months after the death of the deceased person (s. 3). Damages have to be assessed according to the injury resulting to the parties for whose benefit the action is brought, and apportioned between them by the jury(u) . The nominal plaintiff must deliver to the defendant particulars of those parties and of the nature of the claim made on their behalf.

By an amending Act of 1864, 27 & 28 Vict. c. 95, if there is no personal representative of the person whose death has been caused, or if no action is brought by personal representatives within six months, all or any of the persons for whose benefit the right of action is given by Lord Campbell’s Act may sue in their own names(x) .

Construction of Lord Campbell’s Act. The principal Act is inaccurately entitled to begin with (for to a lay reader “accidents” might seem to include inevitable accidents, and again, “accident” does not include wilful wrongs, to which the Act does apply); nor is this promise much bettered by the performance of its enacting part. It is certain that the right of action, or at any rate the right to compensation, given by the statute is not the same which the person killed would have had if he had lived to sue for his injuries. It is no answer to a claim under Lord Campbell’s Act to show that the deceased would not himself have sustained pecuniary loss. “The statute . . . gives to the personal representative a cause of action beyond that which the deceased would have had if he had survived, and based on a different principle”(y) . But “the statute does not in terms say on what principle the action it gives is to be maintainable, nor on what principle the damages are to be assessed; and the only way to ascertain what it does, is to show what it does not mean”(z) . It has been decided that some appreciable pecuniary loss to the beneficiaries (so we may conveniently call the parties for whose benefit the right is created) must be shown; they cannot maintain an action for nominal damages(a) ; nor recover what is called solatium in respect of the bodily hurt and suffering of the deceased, or their own affliction(b) ; they must show “a reasonable expectation of pecuniary benefit, as of right or otherwise,” had the deceased remained alive. But a legal right to receive benefit from him need not be shown(c) . Thus, the fact that a grown-up son has been in the constant habit of making presents of money and other things to his parents, or even has occasionally helped them in bad times(d) , is a ground of expectation to be taken into account in assessing the loss sustained. Funeral and mourning expenses, however, not being the loss of any benefit that could have been had by the deceased person’s continuing in life, are not admissible(e) .

Interests of survivors distinct. The interests conferred by the Act on the several beneficiaries are distinct. It is no answer to a claim on behalf of some of a man’s children who are left poorer that all his children, taken as an undivided class, have got the whole of his property(f) .

The statutory cause of action is in substitution, not cumulative. It is said that the Act does not transfer to representatives the right of action which the person killed would have had, “but gives to the representative a totally new right of action on different principles”(g) . Nevertheless the cause of action is so far the same that if a person who ultimately dies of injuries caused by wrongful act or neglect has accepted satisfaction for them in his lifetime, an action under Lord Campbell’s Act is not afterwards maintainable(h) . For the injury sued on must, in the words of the Act, be “such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof”: and this must mean that he might immediately before his death have maintained an action, which, if he had already recovered or accepted compensation, he could not do.

Scottish and American laws. In Scotland, as we have incidentally seen, the surviving kindred are entitled by the common law to compensation in these cases, not only to the extent of actual damage, but by way of solatium. In the United States there exist almost everywhere statutes generally similar to Lord Campbell’s Act; but they differ considerably in details from that Act and from one another(i) . The tendency seems to be to confer on the survivors, both in legislation and in judicial construction, larger rights than in England.

Right to follow property wrongfully taken or converted as against wrong-doer’s estate. In one class of cases there is a right to recover against a wrong-doer’s estate, notwithstanding the maxim of actio personalis, yet not so as to constitute a formal exception. When it comes to the point of direct conflict, the maxim has to prevail.

As Lord Mansfield stated the rule, “where property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor”(k) . Or, as Bowen L. J. has more fully expressed it, the cases under this head are those “in which property, or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his own estate or moneys.” In such cases, inasmuch as the action brought by the true owner, in whatever form, is in substance to recover property, the action does not die with the person, but “the property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered from him, can be traced after his death to his assets” (by suing the personal representatives) “and recaptured by the rightful owner there.” But this rule is limited to the recovery of specific acquisitions or their value. It does not include the recovery of damages, as such, for a wrong, though the wrong may have increased the wrong-doer’s estate in the sense of being useful to him or saving him expense(l) .

The rule limited to recovery of specific property or its value: Phillips v. Homfray. If A. wrongfully gets and carries away coal from a mine under B.’s land, and B. sues for the value of the coal and damages, and inquiries are directed, pending which A. dies, B. is entitled as against A.’s estate to the value of the coal wrongfully taken, but not to damages for the use of the passages through which the coal was carried out, nor for the injury to the mines or the surface of the ground consequent on A.’s workings(h) .

Again, A., a manufacturer, fouls a stream with refuse to the damage of B., a lower riparian owner; B. sues A., and pending the action, and more than six months after its commencement(i) , A. dies. B. has no cause of action against A.’s representatives, for there has been no specific benefit to A.’s estate, only a wrong for which B. might in A’.s lifetime have recovered unliquidated damages(k) .

The like law holds of a director of a company who has committed himself to false representations in the prospectus, whereby persons have been induced to take shares, and have acquired a right of suit against the issuers. If he dies before or pending such a suit, his estate is not liable(l) . In short, this right against the executors or administrators of a wrong-doer can be maintained only if there is “some beneficial property or value capable of being measured, followed, and recovered”(m) . For the rest, the dicta of the late Sir George Jessel and of the Lords Justices are such as to make it evident that the maxim which they felt bound to enforce was far from commanding their approval.

3.

Liability for the Torts of Agents and Servants.

Command of principal does not excuse agent’s wrong. Whoever commits a wrong is liable for it himself. It is no excuse that he was acting, as an agent or servant, on behalf and for the benefit of another(n) . But that other may well be also liable: and in many cases a man is held answerable for wrongs not committed by himself. The rules of general application in this kind are those concerning the liability of a principal for his agent, and of a master for his servant. Under certain conditions responsibility goes farther, and a man may have to answer for wrongs which, as regards the immediate cause of the damage, are not those of either his agents or his servants. Thus we have cases where a man is subject to a positive duty, and is held liable for failure to perform it.Cases of absolute positive duty distinguished: Here, the absolute character of the duty being once established, the question is not by whose hand an unsuccessful attempt was made, whether that of the party himself, of his servant, or of an “independent contractor”(o) , but whether the duty has been adequately performed or not. If it has, there is nothing more to be considered, and liability, if any, must be sought in some other quarter(p) . If not, the non-performance in itself, not the causes or conditions of non-performance, is the ground of liability. Special duties created by statute, as conditions attached to the grant of exceptional rights or otherwise, afford the chief examples of this kind. Here the liability attaches, irrespective of any question of agency or personal negligence, if and when the conditions imposed by the legislature are not satisfied(q) .

also duties in nature of warranty. There occur likewise, though as an exception, duties of this kind imposed by the common law. Such are the duties of common carriers, of owners of dangerous animals or other things involving, by their nature or position, special risk of harm to their neighbours; and such, to a limited extent, is the duty of occupiers of fixed property to have it in reasonably safe condition and repair, so far as that end can be assured by the due care on the part not only of themselves and their servants, but of all concerned.

The degrees of responsibility may be thus arranged, beginning with the mildest:

• (i) For oneself and specifically authorized agents (this holds always).
• (ii) For servants or agents generally (limited to course of employment).
• (iii) For both servants and independent contractors (duties as to safe repair, &c.).
• (iv) For everything but vis major (exceptional: some cases of special risk, and anomalously, certain public occupations).

Modes of liability for wrongful acts, &c. of others. Apart from the cases of exceptional duty where the responsibility is in the nature of insurance or warranty, a man may be liable for another’s wrong—

(1) As having authorized or ratified that particular wrong:

(2) As standing to the other person in a relation making him answerable for wrongs committed by that person in virtue of their relation, though not specifically authorized.

The former head presents little or no difficulty. The latter includes considerable difficulties of principle, and is often complicated with troublesome questions of fact.

Command and ratification. It scarce needs authority to show that a man is liable for wrongful acts which have been done according to his express command or request, or which, having been done on his account and for his benefit, he has adopted as his own. “A trespasser may be not only he who does the act, but who commands or procures it to be done . . . who aids or assists in it . . . or who assents afterwards”(r) . This is not the less so because the person employed to do an unlawful act may be employed as an “independent contractor,” so that, supposing it lawful, the employer would not be liable for his negligence about doing it. A gas company employed a firm of contractors to break open a public street, having therefor no lawful authority or excuse; the thing contracted to be done being in itself a public nuisance, the gas company was held liable for injury caused to a foot-passenger by falling over some of the earth and stones excavated and heaped up by the contractors(s) . A point of importance to be noted in this connexion is that only such acts bind a principal by subsequent ratification as were done at the time on the principal’s behalf. What is done by the immediate actor on his own account cannot be effectually adopted by another; neither can an act done in the name and on behalf of Peter be ratified either for gain or for loss by John. “Ratum quis habere non potest, quod ipsius nomine non est gestum”(t) .

Master and servant. The more general rule governing the other and more difficult branch of the subject was expressed by Willes J. in a judgment which may now be regarded as a classical authority. “The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit, though no express command or privity of the master be proved”(u) .

Reason of the master’s liability. No reason for the rule, at any rate no satisfying one, is commonly given in our books. Its importance belongs altogether to the modern law, and it does not seem to be illustrated by any early authority(x) . Blackstone (i. 417) is short in his statement, and has no other reason to give than the fiction of an “implied command.” It is currently said, Respondeat superior; which is a dogmatic statement, not an explanation. It is also said, Qui facit per alium facit per se; but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant “in the course of the service,” are specifically unauthorized or even forbidden. Again, it is said that a master ought to be careful in choosing fit servants; but if this were the reason, a master could discharge himself by showing that the servant for whose wrong he is sued was chosen by him with due care, and was in fact generally well conducted and competent: which is certainly not the law.

A better account was given by Chief Justice Shaw of Massachusetts. “This rule,” he said, “is obviously founded on the great principle of social duty, that every man in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it”(y) . This is, indeed, somewhat too widely expressed, for it does not in terms limit the responsibility to cases where at least negligence is proved. But no reader is likely to suppose that, as a general rule, either the servant or the master can be liable where there is no default at all. And the true principle is otherwise clearly enounced. I am answerable for the wrongs of my servant or agent, not because he is authorized by me or personally represents me, but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others.

Some time later the rule was put by Lord Cranworth in a not dissimilar form: the master “is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself or of those acting under his orders in the course of his business”(z) .

The statement of Willes J. that the master “has put the agent in his place to do that class of acts” is also to be noted and remembered as a guide in many of the questions that arise. A just view seems to be taken, though artificially and obscurely expressed, in one of the earliest reported cases on this branch of the law: “It shall be intended that the servant had authority from his master, it being for his master’s benefit”(a) .

Questions to be considered herein. The rule, then (on whatever reason founded), being that a master is liable for the acts, neglects, and defaults of his servants in the course of the service, we have to define further—

1. Who is a servant.

2. What acts are deemed to be in the course of service.

3. How the rule is affected when the person injured is himself a servant of the same master.

Who is a servant: responsibility goes with order and control. 1. As to the first point, it is quite possible to do work for a man, in the popular sense, and even to be his agent for some purposes, without being his servant. The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs, or at any moment may direct the means also, or, as it has been put, “retains the power of controlling the work”(b) ; and he who does work on those terms is in law a servant for whose acts, neglects, and defaults, to the extent to be specified, the master is liable. An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand. For the acts or omissions of such a one about the performance of his undertaking his employer is not liable to strangers, no more than the buyer of goods is liable to a person who may be injured by the careless handling of them by the seller or his men in the course of delivery. If the contract, for example, is to build a wall, and the builder “has a right to say to the employer, ‘I will agree to do it, but I shall do it after my own fashion; I shall begin the wall at this end, and not at the other;’ there the relation of master and servant does not exist, and the employer is not liable”(c) . “In ascertaining who is liable for the act of a wrong-doer, you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back and make the employer of that person liable”(d) . He who controls the work is answerable for the workman; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law; the difficulties that may arise in applying it are difficulties of ascertaining the facts(e) . It may be a nice question whether a man has let out the whole of a given work to an “independent contractor,” or reserved so much power of control as to leave him answerable for what is done(f) .

Specific assumption of control. It must be remembered that the remoter employer, if at any point he does interfere and assume specific control, renders himself answerable, not as master, but as principal. He makes himself “dominus pro tempore.” Thus the hirer of a carriage, driven by a coachman who is not the hirer’s servant but the letter’s, is not, generally speaking, liable for harm done by the driver’s negligence(g) . But if he orders, or by words or conduct at the time sanctions, a specific act of rash or careless driving, he may well be liable(h) . Rather slight evidence of personal interference has been allowed as sufficient in this class of cases(i) .

Temporary transfer of service. One material result of this principle is that a person who is habitually the servant of A. may become, for a certain time and for the purpose of certain work, the servant of B.; and this although the hand to pay him is still A.’s. The owner of a vessel employs a stevedore to unload the cargo. The stevedore employs his own labourers; among other men, some of the ship’s crew work for him by arrangement with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner(k) . There is no “common employment” between the stevedore’s men and the seamen on board(l) .

Owners of a colliery, after partly sinking a shaft, agree with a contractor to finish the work for them, on the terms, among others, that engine power and engineers to work the engine are to be provided by the owners. The engine that has been used in excavating the shaft is handed over accordingly to the contractor; the same engineer remains in charge of it, and is still paid by the owners, but is under the orders of the contractor. During the continuance of the work on these terms the engineer is the servant not of the colliery owners but of the contractor(m) .

But where iron-founders execute specific work about the structure of a new building under a contract with the architect, and without any contract with the builder, their workmen do not become servants of the builder(n) .

“Power of controlling the work” explained. It is proper to add that the “power of controlling the work” which is the legal criterion of the relation of a master to a servant does not necessarily mean a present and physical ability. Shipowners are answerable for the acts of the master, though done under circumstances in which it is impossible to communicate with the owners(o) . It is enough that the servant is bound to obey the master’s directions if and when communicated to him. The legal power of control is to actual supervision what in the doctrine of possession the intent to possess is to physical detention. But this much is needful: therefore a compulsory pilot, who is in charge of the vessel independently of the owner’s will, and, so far from being bound to obey the owner’s or master’s orders, supersedes the master for the time being, is not the owner’s servant, and the statutory exemption of the owner from liability for such a pilot’s acts is but in affirmance of the common law(p) .

What is in course of employment. 2. Next we have to see what is meant by the course of service or employment. The injury in respect of which a master becomes subject to this kind of vicarious liability may be caused in the following ways:—

• (a) It may be the natural consequence of something being done by a servant with ordinary care in execution of the master’s specific orders.
• (b) It may be due to the servant’s want of care in carrying on the work or business in which he is employed. This is the commonest case.
• (c) The servant’s wrong may consist in excess or mistaken execution of a lawful authority.
• (d) Or it may even be a wilful wrong, such as assault, provided the act is done on the master’s behalf and with the intention of serving his purposes.

Let us take these heads in order.

Execution of specific orders. (a) Here the servant is the master’s agent in a proper sense, and the master is liable for that which he has truly, not by the fiction of a legal maxim, commanded to be done. He is also liable for the natural consequences of his orders, even though he wished to avoid them, and desired his servant to avoid them. Thus, in Gregory v. Piper(q) , a right of way was disputed between adjacent occupiers, and the one who resisted the claim ordered a labourer to lay down rubbish to obstruct the way, but so as not to touch the other’s wall. The labourer executed the orders as nearly as he could, and laid the rubbish some distance from the wall, but it soon “shingled down” and ran against the wall, and in fact could not by any ordinary care have been prevented from doing so. For this the employer was held to answer as for a trespass which he had authorized. This is a matter of general principle, not of any special kind of liability. No man can authorize a thing and at the same time affect to disavow its natural consequences; no more than he can disclaim responsibility for the natural consequences of what he does himself.

Negligence in conduct of master’s business. (b) Then comes the case of the servant’s negligence in the performance of his duty, or rather while he is about his master’s business. What constitutes negligence does not just now concern us; but it must be established that the servant is a wrong-doer, and liable to the plaintiff, before any question of the master’s liability can be entertained. Assuming this to be made out, the question may occur whether the servant was in truth on his master’s business at the time, or engaged on some pursuit of his own. In the latter case the master is not liable. “If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it”(r) . For example: “If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, . . . the master will not be liable. But if, in order to perform his master’s orders, he strikes but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant’s employment”(s) .

Departure or deviation from master’s business. Whether the servant is really bent on his master’s affairs or not is a question of fact, but a question which may be troublesome. Distinctions are suggested by some of the reported cases which are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master’s responsibility. But where there is not merely deviation, but a total departure from the course of the master’s business, so that the servant may be said to be “on a frolic of his own”(t) , the master is no longer answerable for the servant’s conduct. Two modern cases of the same class and period, one on either side of the line, will illustrate this distinction.

Whatman v. Pearson. In Whatman v. Pearson(u) , a carter who was employed by a contractor, having the allowance of an hour’s time for dinner in his day’s work, but also having orders not to leave his horse and cart, or the place where he was employed, happened to live hard by. Contrary to his instructions, he went home to dinner, and left the horse and cart unattended at his door; the horse ran away and did damage to the plaintiff’s railings. A jury was held warranted in finding that the carman was throughout in the course of his employment as the contractor’s servant “acting within the general scope of his authority to conduct the horse and cart during the day”(x) .

Storey v. Ashton. In Storey v. Ashton(y) , a carman was returning to his employer’s office with returned empties. A clerk of the same employer’s who was with him induced him, when he was near home, to turn off in another direction to call at a house and pick up something for the clerk. While the carman was driving in this direction he ran over the plaintiff. The Court held that if the carman “had been merely going a roundabout way home, the master would have been liable; but he had started on an entirely new journey on his own or his fellow-servant’s account, and could not in any way be said to be carrying out his master’s employment”(z) . More lately it has been held that if the servant begins using his master’s property for purposes of his own, the fact that by way of afterthought he does something for his master’s purposes also is not necessarily such a “re-entering upon his ordinary duties” as to make the master answerable for him. A journey undertaken on the servant’s own account “cannot by the mere fact of the man making a pretence of duty by stopping on his way be converted into a journey made in the course of his employment”(a) .

Williams v. Jones. The following is a curious example. A carpenter was employed by A. with B.’s permission to work for him in a shed belonging to B. This carpenter set fire to the shed in lighting his pipe with a shaving. His act, though negligent, having nothing to do with the purpose of his employment, A. was not liable to B.(b) . It does not seem difficult to pronounce that lighting a pipe is not in the course of a carpenter’s employment; but the case was one of difficulty as being complicated by the argument that A., having obtained a gratuitous loan of the shed for his own purposes, was answerable, without regard to the relation of master and servant, for the conduct of persons using it. This failed for want of anything to show that A. had acquired the exclusive use or control of the shed. Apart from this, the facts come very near to the case which has been suggested, but not dealt with by the Courts in any reported decision, of a miner opening his safety-lamp to get a light for his pipe, and thereby causing an explosion; where “it seems clear that the employer would not be held liable”(c) .

Excess or mistake in execution of authority. (c) Another kind of wrong which may be done by a servant in his master’s business, and so as to make the master liable, is the excessive or erroneous execution of a lawful authority. To establish a right of action against the master in such a case it must be shown that (α) the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do; (β) the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful.

The master is chargeable only for acts of an authorized class which in the particular instance are wrongful by reason of excess or mistake on the servant’s part. For acts which he has neither authorized in kind nor sanctioned in particular he is not chargeable.

Interference with passengers by guards, &c. Most of the cases on this head have arisen out of acts of railway servants on behalf of the companies. A porter whose duty is, among other things, to see that passengers do not get into wrong trains or carriages (but not to remove them from a wrong carriage), asks a passenger who has just taken his seat where he is going. The passenger answers, “To Macclesfield.” The porter, thinking the passenger is in the wrong train, pulls him out; but the train was in fact going to Macclesfield, and the passenger was right. On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable(d) . Here are both error and excess in the servant’s action: error in supposing facts to exist which make it proper to use his authority (namely, that the passenger has got into the wrong train); excess in the manner of executing his authority, even had the facts been as he supposed. But they do not exclude the master’s liability.

“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 responsible for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment”(e) .

Seymour v. Greenwood(f) is another illustrative case of this class. The guard of an omnibus removed a passenger whom he thought it proper to remove as being drunken and offensive to the other passengers, and in so doing used excessive violence. Even if he were altogether mistaken as to the conduct and condition of the passenger thus removed, the owner of the omnibus was answerable. “The master, by giving the guard authority to remove offensive passengers, necessarily gave him authority to determine whether any passenger had misconducted himself.”

Arrest of supposed offenders. Another kind of case under this head is where a servant takes on himself to arrest a supposed offender on his employer’s behalf. Here it must be shown, both that the arrest would have been justified if the offence had really been committed by the party arrested, and that to make such an arrest was within the employment of the servant who made it. As to the latter point, however, “where there is a necessity to have a person on the spot to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a person on the spot who is acting as if he had express authority is prima facie evidence that he had authority”(g) . Railway companies have accordingly been held liable for wrongful arrests made by their inspectors or other officers as for attempted frauds on the company punishable under statutes or authorized by-laws, and the like(h) .

Act wholly outside authority, master not liable. But the master is not answerable if the servant takes on himself, though in good faith and meaning to further the master’s interest, that which the master has no right to do even if the facts were as the servant thinks them to be: as where a station-master arrested a passenger for refusing to pay for the carriage of a horse, a thing outside the company’s powers(i) . The same rule holds if the particular servant’s act is plainly beyond his authority, as where the officer in charge of a railway station arrests a man on suspicion of stealing the company’s goods, an act which is not part of the company’s general business, nor for their apparent benefit(k) . In a case not clear on the face of it, as where a bank manager commences a prosecution, which turns out to be groundless, for a supposed theft of the bank’s property—a matter not within the ordinary routine of banking business, but which might in the particular case be within the manager’s authority—the extent of the servant’s authority is a question of fact(l) . Much must depend on the nature of the matter in which the authority is given. Thus an agent entrusted with general and ample powers for the management of a farm has been held to be clearly outside the scope of his authority in entering on the adjacent owner’s land on the other side of a boundary ditch in order to cut underwood which was choking the ditch and hindering the drainage from the farm. If he had done something on his employer’s own land which was an actionable injury to adjacent land, the employer might have been liable. But it was thought unwarrantable to say “that an agent entrusted with authority to be exercised over a particular piece of land has authority to commit a trespass on other land”(m) . More generally, an authority cannot be implied for acts not necessary to protect the employer’s property, such as arresting a customer for a supposed attempt to pass bad money(n) .

Wilful trespasses, &c. for master’s purposes. (d) Lastly, a master may be liable even for wilful and deliberate wrongs committed by the servant, provided they be done on the master’s account and for his purposes: and this, no less than in other cases, although the servant’s conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the “wilful and malicious” wrong of his servant. If “malicious” means “committed exclusively for the servant’s private ends,” or “malice” means “private spite”(o) , this is a correct statement; otherwise it is contrary to modern authority. The question is not what was the nature of the act in itself, but whether the servant intended to act in the master’s interest.

This was decided by the Exchequer Chamber in Limpus v. London General Omnibus Company(p) , where the defendant company’s driver had obstructed the plaintiff’s omnibus by pulling across the road in front of it, and caused it to upset. He had printed instructions not to race with or obstruct other omnibuses. Martin B. directed the jury, in effect, that if the driver acted in the way of his employment and in the supposed interest of his employers as against a rival in their business, the employers were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own: and this was approved by the Court(q) above. The driver “was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus.” As to the company’s instructions, “the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability”(r) .

Fraud of agent or servant. That an employer is liable for frauds of his servant committed without authority, but in the course of the service and in apparent furtherance of the employer’s purposes, was established with more difficulty; for it seemed harsh to impute deceit to a man personally innocent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal wrong-doing(s) . But when it was fully realized that in all these cases the master’s liability is imposed by the policy of the law without regard to personal default on his part, so that his express command or privity need not be shown, it was a necessary consequence that fraud should be on the same footing as any other wrong(t) . So the matter is handled in our leading authority, the judgment of the Exchequer Chamber delivered by Willes J. in Barwick v. English Joint Stock Bank.

“With respect to the question, whether a principal is answerable for the act of his agent in the course of his master’s business, and for his master’s benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong”(u) .

This has been more than once fully approved in the Privy Council(x) , and may now be taken, notwithstanding certain appearances of conflict(y) , to have the approval of the House of Lords also(z) . What has been said to the contrary was either extra-judicial, as going beyond the ratio decidendi of the House, or is to be accepted as limited to the particular case where a member of an incorporated company, not having ceased to be a member, seeks to charge the company with the fraud of its directors or other agents in inducing him to join it(a) .

But conversely a false and fraudulent statement of a servant made for ends of his own, though in answer to a question of a kind he was authorized to answer on his master’s behalf, will not render the master liable in an action for deceit(b) .

The leading case of Mersey Docks Trustees v. Gibbs(c) may also be referred to in this connexion, as illustrating the general principles according to which liabilities are imposed on corporations and public bodies.

Liability of firm for fraud of a partner. There is abundant authority in partnership law to show that a firm is answerable for fraudulent misappropriation of funds, and the like, committed by one of the partners in the course of the firm’s business and within the scope of his usual authority, though no benefit be derived therefrom by the other partners. But, agreeably to the principles above stated, the firm is not liable if the transaction undertaken by the defaulting partner is outside the course of partnership business. Where, for example, one of a firm of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion(d) . Again, the firm is not liable if the facts show that exclusive credit was given to the actual wrong-doer(e) . In all these cases the wrong is evidently wilful. In all or most of them, however, it is at the same time a breach of contract or trust. And it seems to be on this ground that the firm is held liable even when the defaulting partner, though professing to act on behalf of the firm, misapplies funds or securities merely for his own separate gain. The reasons given are not always free from admixture of the Protean doctrine of “making representations good,” which is now, I venture to think, exploded(f) .

Injuries to servants by fault of fellow-servants. 3. There remains to be considered the modification of a master’s liability for the wrongful act, neglect, or default of his servant when the person injured is himself in and about the same master’s service. It is a topic far from clear in principle; the Employers’ Liability Act, 1880, has obscurely indicated a sort of counter principle, and introduced a number of minute and empirical exceptions, or rather limitations of the exceptional rule in question. That rule,Common law rule of master’s immunity. as it stood before the Act of 1880, is that a master is not liable to his servant for injury received from any ordinary risk of or incident to the service, including acts or defaults of any other person employed in the same service. Our law can show no more curious instance of a rapid modern development. The first evidence of any such rule is in Priestley v. Fowler(g) , decided in 1837, which proceeds on the theory (if on any definite theory) that the master “cannot be bound to take more care of the servant than he may reasonably be expected to do of himself;” that a servant has better opportunities than his master of watching and controlling the conduct of his fellow-servants; and that a contrary doctrine would lead to intolerable inconvenience, and encourage servants to be negligent. According to this there would be a sort of presumption that the servant suffered to some extent by want of diligence on his own part. But it is needless to pursue this reasoning; for the like result was a few years afterwards arrived at by Chief Justice Shaw of Massachusetts by another way, and in a judgment which is the fountain-head of all the later decisions(h) , and has now been judicially recognized in England as “the most complete exposition of what constitutes common employment”(i) . The accepted doctrine is to this effect.Reason given in the later cases. Strangers can hold the master liable for the negligence of a servant about his business. But in the case where the person injured is himself a servant in the same business he is not in the same position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to the master, You shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claims on the master depend on the contract of service. Why should it be an implied term of that contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service, taken all round, were considered in fixing the rate of payment. This is, I believe, a fair summary of the reasoning which has prevailed in the authorities. With its soundness we are not here concerned. It was not only adopted by the House of Lords for England, but forced by them upon the reluctant Courts of Scotland to make the jurisprudence of the two countries uniform(k) . No such doctrine appears to exist in the law of any other country in Europe. The following is a clear judicial statement of it in its settled form: “A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both”(l) .

The servants need not be about the same kind of work: The phrase “common employment” is frequent in this class of cases. But it is misleading in that it suggests a limitation of the rule to circumstances where the injured servant had in fact some opportunity of observing and guarding against the conduct of the negligent one; a limitation rejected by the Massachusetts Court in Farwell’s case, where an engine-driver was injured by the negligence of a switchman (pointsman as we say on English railways) in the same company’s service, and afterwards constantly rejected by the English Courts.

“When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments. In a blacksmith’s shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight or voice, and yet acting together.

“Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connexion with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied”(m) .

provided there is a general common object. So it has been said that “we must not over-refine, but look at the common object, and not at the common immediate object”(n) . All persons engaged under the same employer for the purposes of the same business, however different in detail those purposes may be, are fellow-servants in a common employment within the meaning of this rule: for example, a carpenter doing work on the roof of an engine-shed and porters moving an engine on a turntable(o) . “Where there is one common general object, in attaining which a servant is exposed to risk, he is not entitled to sue the master if he is injured by the negligence of another servant whilst engaged in furthering the same object”(p) .

Relative rank of the servants immaterial. It makes no difference if the servant by whose negligence another is injured is a foreman, manager, or other superior in the same employment, whose orders the other was by the terms of his service bound to obey. The foreman or manager is only a servant having greater authority: foremen and workmen, of whatever rank, and however authority and duty may be distributed among them, are “all links in the same chain”(q) . So the captain employed by a shipowner is a fellow-servant of the crew, and a sailor injured by the captain’s negligence has no cause of action against the owner(r) . The master is bound, as between himself and his servants, to exercise due care in selecting proper and competent persons for the work (whether as fellow-workmen in the ordinary sense, or as superintendents or foremen), and to furnish suitable means and resources to accomplish the work(s) , and he is not answerable further(t) .

Servants of sub-contractor. Attempts have been made to hold that the servants of sub-contractors for portions of a general undertaking were for this purpose fellow-servants with the servants directly employed by the principal contractors, even without evidence that the sub-contractors’ work was under the direction or control of the chief contractors. This artificial and unjust extension of a highly artificial rule has fortunately been stopped by the House of Lords(u) .

Volunteer assistant is on same footing as servant. Moreover, a stranger who gives his help without reward to a man’s servants engaged in any work is held to put himself, as regards the master’s liability towards him, in the same position as if he were a servant. Having of his free will (though not under a contract of service) exposed himself to the ordinary risks of the work and made himself a partaker in them, he is not entitled to be indemnified against them by the master any more than if he were in his regular employment(x) . This is really a branch of the doctrine “volenti non fit iniuria,” discussed below under the title of General Exceptions.

Exception where the master interferes in person. On the other hand, a master who takes an active part in his own work is not only himself liable to a servant injured by his negligence, but, if he has partners in the business, makes them liable also. For he is the agent of the firm, but not a servant(y) : the partners are generally answerable for his conduct, yet cannot say he was a fellow-servant of the injured man.

Employers’ Liability Act, 1880. Such were the results arrived at by a number of modern authorities, which it seems useless to cite in more detail(z) : the rule, though not abrogated, being greatly limited in application by the statute of 1880. This Act (43 & 44 Vict. c. 42) is on the face of it an experimental and empirical compromise between conflicting interests. It was temporary, being enacted only for seven years and the next session of Parliament, and since continued from time to time(a) ; it is confined in its operation to certain specified causes of injury; and only certain kinds of servants are entitled to the benefit of it, and then upon restrictive conditions as to notice of action, mode of trial, and amount of compensation, which are unknown to the common law, and with a special period of limitation. The effect is that a “workman” within the meaning of the Act is put as against his employer in approximately (not altogether, I think) the same position as an outsider as regards the safe and fit condition of the material instruments, fixed or moveable, of the master’s business. He is also entitled to compensation for harm incurred through the negligence of another servant exercising superintendence, or by the effect of specific orders or rules issued by the master or some one representing him; and there is a special wider provision for the benefit of railway servants, which virtually abolishes the master’s immunity as to railway accidents in the ordinary sense of that term. So far as the Act has any principle, it is that of holding the employer answerable for the conduct of those who are in delegated authority under him. It is noticeable that almost all the litigation upon the Act has been caused either by its minute provisions as to notice of action, or by desperate attempts to evade those parts of its language which are plain enough to common sense. The text of the Act, and references to the decisions upon it, will be found in the Appendix (Note B).

Resulting complication of the law. On the whole we have, in a matter of general public importance and affecting large classes of persons who are neither learned in the law nor well able to procure learned advice, the following singularly intricate and clumsy state of things.

First, there is the general rule of a master’s liability for his servants (itself in some sense an exceptional rule to begin with).

Secondly, the immunity of the master where the person injured is also his servant.

Thirdly, in the words of the marginal notes of the Employers’ Liability Act, “amendment of law” by a series of elaborate exceptions to that immunity.

Fourthly, “exceptions to amendment of law” by provisoes which are mostly but not wholly re-statements of the common law.

Fifthly, minute and vexatious regulations as to procedure in the cases within the first set of exceptions.

It is incredible that such a state of things should nowadays be permanently accepted either in substance or in form. This, however, is not the place to discuss the principles of the controversy, which I have attempted to do elsewhere(b) . In the United States the doctrine laid down by the Supreme Court of Massachusetts in Farwell’s case has been very generally followed(c) . Except in Massachusetts, however, an employer does not so easily avoid responsibility by delegating his authority, as to choice of servants or otherwise, to an intermediate superintendent(d) . There has been a good deal of State legislation, but mostly for the protection of railway servants only. Massachusetts has a more recent and more comprehensive statute based on the English Act of 1880(e) . A collection of more or less detailed reports “on the laws regulating the liability of employers in foreign countries” has been published by the Foreign Office(f) .

CHAPTER IV.

GENERAL EXCEPTIONS.

Conditions excluding liability for act prima facie wrongful.We have considered the general principles of liability for civil wrongs. It now becomes needful to consider the general exceptions to which these principles are subject, or in other words the rules of immunity which limit the rules of liability. There are various conditions which, when present, will prevent an act from being wrongful which in their absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying condition exists. It is an actionable wrong, generally speaking, to lay hands on a man in the way of force or restraint. But it is the right of every man to defend himself against unlawful force, and it is the duty of officers of justice to apply force and restraint in various degrees, from simple arrest to the infliction of death itself, in execution of the process and sentences of the law. Here the harm done, and wilfully done, is justified. There are incidents, again, in every football match which an uninstructed observer might easily take for a confused fight of savages, and grave hurt sometimes ensues to one or more of the players. Yet, so long as the play is fairly conducted according to the rules agreed upon, there is no wrong and no cause of action. For the players have joined in the game of their own free will, and accepted its risks. Not that a man is bound to play football or any other rough game, but if he does he must abide its ordinary chances. Here the harm done, if not justified (for, though in a manner unavoidable, it was not in a legal sense necessary), is nevertheless excused(a) . Again, defamation is a wrong; but there are certain occasions on which a man may with impunity make and publish untrue statements to the prejudice of another. Again, “sic utere tuo ut alienum non laedas” is said to be a precept of law; yet there are divers things a man may freely do for his own ends, though he well knows that his neighbour will in some way be the worse for them.

General and particular exceptions. Some of the principles by which liability is excluded are applicable indifferently to all or most kinds of injury, while others are confined to some one species. The rule as to “privileged communications” belongs only to the law of libel and slander, and must be dealt with under that particular branch of the subject. So the rule as to “contributory negligence” qualifies liability for negligence, and can be understood only in connexion with the special rules determining such liability. Exceptions like those of consent and inevitable accident, on the other hand, are of such wide application that they cannot be conveniently dealt with under any one special head. This class is aptly denoted in the Indian Penal Code (for the same or similar principles apply to the law of criminal liability) by the name of General Exceptions. And these are the exceptions which now concern us. The following seem to be their chief categories. An action is within certain limits not maintainable in respect of the acts of political power called “acts of state,” nor of judicial acts. Executive acts of lawful authority form another similar class. Then a class of acts has to be considered which may be called quasi-judicial, and which, also within limits, are protected. Also, there are various cases in which unqualified or qualified immunity is conferred upon private persons exercising an authority or power specially conferred by law. We may regard all these as cases of privilege in respect of the person or the occasion. After these come exceptions which are more an affair of common right: inevitable accident (a point, strange to say, not clearly free from doubt), harm inevitably incident to the ordinary exercise of rights, harm suffered by consent or under conditions amounting to acceptance of the risk, and harm inflicted in self-defence or (in some cases) otherwise by necessity. These grounds of exemption from civil liability for wrongs have to be severally examined and defined. And first of “Acts of State.”

1.—

Acts of State.

Acts of State. It is by no means easy to say what an act of state is, though the term is not of unfrequent occurrence. On the whole, it appears to signify—(1) An act done or adopted by the prince or rulers of a foreign independent State in their political and sovereign capacity, and within the limits of their de facto political sovereignty; (2) more particularly (in the words of Sir James Stephen(b) ), “an act injurious to the person or to the property of some person who is not at the time of that act a subject(c) of her Majesty; which act is done by any representative of her Majesty’s authority, civil or military, and is either previously sanctioned, or subsequently ratified by her Majesty” (such sanction or ratification being, of course, expressed in the proper manner through responsible ministers).

General ground of exemption. Our courts of justice profess themselves not competent to discuss acts of these kinds for reasons thus expressed by the Judicial Committee of the Privy Council:—“The transactions of independent States between each other” (and with subjects of other States), “are governed by other laws than those which municipal courts administer; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make”(d) .

A series of decisions of the Indian Supreme Courts and the Privy Council have applied this rule to the dealings of the East India Company with native States and with the property of native princes(e) . In these cases the line between public and private property, between acts of regular administration and acts of war or of annexation, is not always easy to draw. Most of them turn on acts of political annexation. Persons who by such an act become British subjects do not thereby become entitled to complain in municipal courts deriving their authority from the British Government of the act of annexation itself or anything incident to it. In such a case the only remedy is by petition of right to the Crown. And the effect is the same if the act is originally an excess of authority, but is afterwards ratified by the Crown.

“The leading case on this subject is Buron v. Denman(f) . This was an action against Captain Denman, a captain in the navy, for burning certain barracoons on the West Coast of Africa, and releasing the slaves contained in them. His conduct in so doing was approved by a letter written by Mr. Stephen, then Under Secretary of State for the Colonies, by the direction of Lord John Russell, then Secretary of State. It was held that the owner of the slaves [a Spanish subject] could recover no damages for his loss, as the effect of the ratification of Captain Denman’s act was to convert what he had done into an act of state, for which no action would lie.”

So far Sir James Stephen, in his History of the Criminal Law(g) . It is only necessary to add, as he did on the next page, that “as between the sovereign and his subjects there can be no such thing as an act of state. Courts of law are established for the express purpose of limiting public authority in its conduct towards individuals. If one British subject puts another to death or destroys his property by the express command of the King, that command is no protection to the person who executes it unless it is in itself lawful, and it is the duty of the proper courts of justice to determine whether it is lawful or not”: as, for example, when the Court of King’s Bench decided that a Secretary of State had no power to issue general warrants to search for and seize papers and the like(h) .

Local actions against viceroy or governor. Another question which has been raised in the colonies and Ireland, but which by its nature cannot come before an English court for direct decision, is how far an action is maintainable against an officer in the nature of a viceroy during his term of office, and in the local courts of the territory in which he represents the Crown. It has been held by the Judicial Committee that the Lieutenant-Governor of a colony is not exempt from suit in the courts of that colony for a debt or other merely private cause of action(i) ; and by the Irish courts, on the other hand, that the Lord-Lieutenant is exempt from being sued in Ireland for an act done in his official or “politic” capacity(j) .

Power to exclude aliens. An alien not already admitted to the enjoyment of civil rights in England (or any British possession) seems to have no remedy in our law if prevented by the local executive authority from entering British territory(k) . It seems doubtful whether admission to temporary allegiance in one part of the British Empire would confer any right to be admitted to another part.

Acts of foreign powers. There is another quite distinct point of jurisdiction in connexion with which the term “act of state” is used. A sovereign prince or other person representing an independent power is not liable to be sued in the courts of this country for acts done in a sovereign capacity; and this even if in some other capacity he is a British subject, as was the case with the King of Hanover, who remained an English peer after the personal union between the Crowns of England and Hanover was dissolved(l) . This rule is included in a wider one which not only extends beyond the subject of this work, but belongs to international as much as to municipal law. It has been thus expressed by the Court of Appeal: “As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its Courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador(m) , though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction”(n) .

Summary. If we may generalize from the doctrine of our own courts, the result seems to be that an act done by the authority, previous or subsequent, of the government of a sovereign state in the exercise of de facto sovereignty(o) , is not examinable at all in the courts of justice of any other state. So far forth as it affects persons not subject to the government in question, it is not examinable in the ordinary courts of that state itself. If and so far as it affects a subject of the same state, it may be, and in England it is, examinable by the courts in their ordinary jurisdiction. In most Continental countries, however, if not in all, the remedy for such acts must be sought before a special tribunal (in France the Conseil d’Etat: the preliminary question whether the ordinary court or the Conseil d’Etat has jurisdiction is decided by the Tribunal des Conflits, a peculiar and composite court)(p) .

2.—

Judicial Acts.

Judicial acts. Next as to judicial acts. The rule is that “no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice”(q) . And the exemption is not confined to judges of superior courts. It is founded on the necessity of judges being independent in the exercise of their office, a reason which applies equally to all judicial proceedings. But in order to establish the exemption as regards proceedings in an inferior court, the judge must show that at the time of the alleged wrong-doing some matter was before him in which he had jurisdiction (whereas in the case of a superior court it is for the plaintiff to prove want of jurisdiction); and the act complained of must be of a kind which he had power to do as judge in that matter.

Thus a revising barrister has power by statute(r) “to order any person to be removed from his court who shall interrupt the business of the court, or refuse to obey his lawful orders in respect of the same”: but it is an actionable trespass if under colour of this power he causes a person to be removed from the court, not because that person is then and there making a disturbance, but because in the revising barrister’s opinion he improperly suppressed facts within his knowledge at the holding of a former court(s) . The like law holds if a county court judge commits a party without jurisdiction, and being informed of the facts which show that he has no jurisdiction(t) ; though an inferior judge is not liable for an act which on the facts apparent to him at the time was within his jurisdiction, but by reason of facts not then shown was in truth outside it(u) .

A judge is not liable in trespass for want of jurisdiction, unless he knew or ought to have known of the defect; and it lies on the plaintiff, in every such case, to prove that fact(x) . And the conclusion formed by a judge, acting judicially and in good faith, on a matter of fact which it is within his jurisdiction to determine, cannot be disputed in an action against him for anything judicially done by him in the same cause upon the footing of that conclusion(y) .

Allegations that the act complained of was done “maliciously and corruptly,” that words were spoken “falsely and maliciously,” or the like, will not serve to make an action of this kind maintainable against a judge either of a superior(z) or of an inferior(a) court.

Liability by statute in special cases. There are two cases in which by statute an action does or did lie against a judge for misconduct in his office, namely, if he refuses to grant a writ of habeas corpus in vacation time(b) , and if he refused to seal a bill of exceptions(c) .

Judicial acts of persons not judges. The rule of immunity for judicial acts is applied not only to judges of the ordinary civil tribunals, but to members of naval and military courts-martial or courts of inquiry constituted in accordance with military law and usage(d) . It is also applied to a limited extent to arbitrators, and to any person who is in a position like an arbitrator’s, as having been chosen by the agreement of parties to decide a matter that is or may be in difference between them. Such a person, if he acts honestly, is not liable for errors in judgment(e) . He would be liable for a corrupt or partisan exercise of his office; but if he really does use a judicial discretion, the rightness or competence of his judgment cannot be brought into question for the purpose of making him personally liable.

The doctrine of our courts on this subject appears to be fully and uniformly accepted in the United States(f) .

3.—

Executive Acts.

Executive acts. As to executive acts of public officers, no legal wrong can be done by the regular enforcement of any sentence or process of law, nor by the necessary use of force for preserving the peace. It will be observed that private persons are in many cases entitled, and in some bound, to give aid and assistance, or to act by themselves, in executing the law; and in so doing they are similarly protected(g) . Were not this the rule, it is evident that the law could not be enforced at all. But a public officer may err by going beyond his authority in various ways. When this happens (and such cases are not uncommon), there are distinctions to be observed. The principle which runs through both common law and legislation in the matter is that an officer is not protected from the ordinary consequence of unwarranted acts which it rested with himself to avoid, such as using needless violence to secure a prisoner; but he is protected if he has only acted in a manner in itself reasonable, and in execution of an apparently regular warrant or order which on the face of it he was bound to obey(h) . This applies only to irregularity in the process of a court having jurisdiction over the alleged cause. Where an order is issued by a court which has no jurisdiction at all in the subject-matter, so that the proceedings are, as it is said, “coram non judice,” the exemption ceases(i) . A constable or officer acting under a justice’s warrant is, however, specially protected by statute, notwithstanding any defect of jurisdiction, if he produces the warrant on demand(k) . The provisions of many particular statutes which gave a qualified protection to persons acting under the statute have been superseded by the Public Authorities’ Protection Act, 1893, which substitutes for their various requirements the one rule that proceedings against any person for any act done in execution of a statutory or other public duty shall be commenced within six months(l) .

As to a mere mistake of fact, such as arresting the body or taking the goods of the wrong person, an officer of the law is not excused in such a case. He must lay hands on the right person or property at his peril, the only exception being on the principle of estoppel, where he is misled by the party’s own act(m) .

Acts of naval and military officers. Acts done by naval and military officers in the execution or intended execution of their duty, for the enforcement of the rules of the service and preservation of discipline, fall to some extent under this head. The justification of a superior officer as regards a subordinate partly depends on the consent implied (or indeed expressed) in the act of a man’s joining the service that he will abide by its regulations and usages; partly on the sanction expressly given to military law by statutes. There is very great weight of opinion, but no absolute decision, that an action does not lie in a civil court for bringing an alleged offender against military law (being a person subject to that law) before a court-martial without probable cause(n) . How far the orders of a superior officer justify a subordinate who obeys them as against third persons has never been fully settled. But the better opinion appears to be that the subordinate is in the like position with an officer executing an apparently regular civil process, namely, that he is protected if he acts under orders given by a person whom he is generally bound by the rules of the service to obey, and of a kind which that person is generally authorized to give, and if the particular order is not necessarily or manifestly unlawful(o) .

Of other public authorities. The same principles apply to the exemption of a person acting under the orders of any public body competent in the matter in hand. An action does not lie against the Serjeant-at-arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House itself; this being a matter of internal discipline in which the House is supreme(p) .

Indian Act, XVIII. of 1850. The principles of English law relating to the protection of judicial officers and persons acting under their orders have in British India been declared by express enactment (Act XVIII. of 1850).

4.—

Quasi-judicial Acts.

Acts of quasi-judicial discretion. Divers persons and bodies are called upon, in the management of public institutions or government of voluntary associations, to exercise a sort of conventional jurisdiction analogous to that of inferior courts of justice. These quasi-judicial functions are in many cases created or confirmed by Parliament. Such are the powers of the universities over their officers and graduates, and of colleges in the universities over their fellows and scholars, and of the General Council of Medical Education over registered medical practitioners(q) . Often the authority of the quasi-judicial body depends on an instrument of foundation, the provisions of which are binding on all persons who accept benefits under it. Such are the cases of endowed schools and religious congregations. And the same principle appears in the constitution of modern incorporated companies, and even of private partnerships. Further, a quasi-judicial authority may exist by the mere convention of a number of persons who have associated themselves for any lawful purpose, and have entrusted powers of management and discipline to select members. The committees of most clubs have by the rules of the club some such authority, or at any rate an initiative in presenting matters of discipline before the whole body. The Inns of Court exhibit a curious and unique example of great power and authority exercised by voluntary unincorporated societies in a legally anomalous manner. Their powers are for some purposes quasi-judicial, and yet they are not subject to any ordinary jurisdiction(r) .

Rules of natural justice and special rules, if any, must be observed. The general rule as to quasi-judicial powers of this class is that persons exercising them are protected from civil liability if they observe the rules of natural justice, and also the particular statutory or conventional rules, if any, which may prescribe their course of action. The rules of natural justice appear to mean, for this purpose, that a man is not to be removed from office or membership, or otherwise dealt with to his disadvantage, without having fair and sufficient notice of what is alleged against him, and an opportunity of making his defence; and that the decision, whatever it is, must be arrived at in good faith with a view to the common interest of the society or institution concerned. If these conditions be satisfied, a court of justice will not interfere, not even if it thinks the decision was in fact wrong(s) . If not, the act complained of will be declared void, and the person affected by it maintained in his rights until the matter has been properly and regularly dealt with(t) . These principles apply to the expulsion of a partner from a private firm where a power of expulsion is conferred by the partnership contract(u) .

Absolute discretionary powers. It may be, however, that by the authority of Parliament (or, it would seem, by the previous agreement of the party to be affected) a governing or administrative body, or the majority of an association, has power to remove a man from office or the like without anything in the nature of judicial proceedings, and without showing any cause at all. Whether a particular authority is judicial or absolute must be determined by the terms of the particular instrument creating it(v) .

Questions whether duty judicial or ministerial: Ashby v. White, &c. On the other hand there may be question whether the duties of a particular office be quasi-judicial, or merely ministerial, or judicial for some purposes and ministerial for others. It seems that at common law the returning or presiding officer at a parliamentary or other election has a judicial discretion, and does not commit a wrong if by an honest error of judgment he refuses to receive a vote(x) : but now in most cases it will be found that such officers are under absolute statutory duties(y) , which they must perform at their peril.

5.—

Parental and quasi-parental Authority.

Authority of parents and persons in loco parentis. Thus much of private quasi-judicial authority. There are also several kinds of authority in the way of summary force or restraint which the necessities of society require to be exercised by private persons. And such persons are protected in exercise thereof, if they act with good faith and in a reasonable and moderate manner. Parental authority (whether in the hands of a father or guardian, or of a person to whom it is delegated, such as a schoolmaster) is the most obvious and universal instance(z) . It is needless to say more of this here, except that modern civilization has considerably diminished the latitude of what judges or juries are likely to think reasonable and moderate correction(a) .

Of custodians of lunatics, &c. Persons having the lawful custody of a lunatic, and those acting by their direction, are justified in using such reasonable and moderate restraint as is necessary to prevent the lunatic from doing mischief to himself or others, or required, according to competent opinion, as part of his treatment. This may be regarded as a quasi-paternal power; but I conceive the person entrusted with it is bound to use more diligence in informing himself what treatment is proper than a parent is bound (I mean, can be held bound in a court of law) to use in studying the best method of education. The standard must be more strict as medical science improves. A century ago lunatics were beaten, confined in dark rooms, and the like. Such treatment could not be justified now, though then it would have been unjust to hold the keeper criminally or civilly liable for not having more than the current wisdom of experts. In the case of a drunken man, or one deprived of self-control by a fit or other accident, the use of moderate restraint, as well for his own benefit as to prevent him from doing mischief to others, may in the same way be justified.

6.—

Authorities of Necessity.

Of the master of a ship. The master of a merchant ship has by reason of necessity the right of using force to preserve order and discipline for the safety of the vessel and the persons and property on board. Thus, if he has reasonable cause to believe that any sailor or passenger is about to raise a mutiny, he may arrest and confine him. The master may even be justified in a case of extreme danger in inflicting punishment without any form of inquiry. But “in all cases which will admit of the delay proper for inquiry, due inquiry should precede the act of punishment; and . . . . the party charged should have the benefit of that rule of universal justice, of being heard in his own defence”(b) . In fact, when the immediate emergency of providing for the safety and discipline of the ship is past, the master’s authority becomes a quasi-judicial one. There are conceivable circumstances in which the leader of a party on land, such as an Alpine expedition, might be justified on the same principle in exercising compulsion to assure the common safety of the party. But such a case, though not impossible, is not likely to occur for decision.

7.—

Damage incident to authorized Acts.

Damage incidentally resulting from act not unlawful. Thus far we have dealt with cases where some special relation of the parties justifies or excuses the intentional doing of things which otherwise would be actionable wrongs. We now come to another and in some respects a more interesting and difficult category. Damage suffered in consequence of an act done by another person, not for that intent, but for some other purpose of his own, and not in itself unlawful, may for various reasons be no ground of action. The general precept of law is commonly stated to be “Sic utere tuo ut alienum non laedas.” If this were literally and universally applicable, a man would act at his peril whenever and wherever he acted otherwise than as the servant of the law. Such a state of things would be intolerable. It would be impossible, for example, to build or repair a wall, unless in the middle of an uninhabited plain. But the precept is understood to be subject to large exceptions. Its real use is to warn us against the abuse of the more popular adage that “a man has a right to do as he likes with his own”(c) , which errs much more dangerously on the other side.

There are limits to what a man may do with his own; and if he does that which may be harmful to his neighbour, it is his business to keep within those limits. Neither the Latin nor the vernacular maxim will help us much, however, to know where the line is drawn. The problems raised by the apparent opposition of the two principles must be dealt with each on its own footing. We say apparent; for the law has not two objects, but one, that is, to secure men in the enjoyment of their rights and of their due freedom of action. In its most general form, therefore, the question is, where does the sphere of a man’s proper action end, and aggression on the sphere of his neighbour’s action begin?

Damage from execution of authorized works. The solution is least difficult for the lawyer when the question has been decided in principle by a sovereign legislature. Parliament has constantly thought fit to direct or authorize the doing of things which but for that direction and authority might be actionable wrongs. Now a man cannot be held a wrong-doer in a court of law for acting in conformity with the direction or allowance of the supreme legal power in the State. In other words “no action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one.” The meaning of the qualification will appear immediately. Subject thereto, “the remedy of the party who suffers the loss is confined to recovering such compensation” (if any) “as the Legislature has thought fit to give him”(d) . Instead of the ordinary question whether a wrong has been done, there can only be a question whether the special power which has been exercised is coupled, by the same authority that created it, with a special duty to make compensation for incidental damage. The authorities on this subject are voluminous and discursive, and exhibit notable differences of opinion. Those differences, however, turn chiefly on the application of admitted principles to particular facts, and on the construction of particular enactments. Thus it has been disputed whether the compensation given by statute to persons who are “injuriously affected” by authorized railway works, and by the same statutes deprived of their common-law rights of action, was or was not co-extensive with the rights of action expressly or by implication taken away; and it has been decided, though not without doubts and weighty dissent, that in some cases a party who has suffered material loss is left without either ordinary or special remedy(e) .

No action for unavoidable damage. Apart from the question of statutory compensation, it is settled that no action can be maintained for loss or inconvenience which is the necessary consequence of an authorized thing being done in an authorized manner. A person dwelling near a railway constructed under the authority of Parliament for the purpose of being worked by locomotive engines cannot complain of the noise and vibration caused by trains passing and repassing in the ordinary course of traffic, however unpleasant he may find it(f) ; nor of damage caused by the escape of sparks from the engines, if the company has used due caution to prevent such escape so far as practicable(g) . So, where a corporation is empowered to make a river navigable, it does not thereby become bound to keep the bed of the river clear beyond what is required for navigation, though an incidental result of the navigation works may be the growth of weeds and accumulation of silt to the prejudice of riparian owners(h) .

Care and caution required in exercise of discretionary powers. But in order to secure this immunity the powers conferred by the Legislature must be exercised without negligence, or, as it is perhaps better expressed, with judgment and caution(i) . For damage which could not have been avoided by any reasonably practicable care on the part of those who are authorized to exercise the power, there is no right of action. But they must not do needless harm; and if they do, it is a wrong against which the ordinary remedies are available. If an authorized railway comes near my house, and disturbs me by the noise and vibration of the trains, it may be a hardship to me, but it is no wrong. For the railway was authorized and made in order that trains might be run upon it, and without noise and vibration trains cannot be run at all. But if the company makes a cutting, for example, so as to put my house in danger of falling, I shall have my action; for they need not bring down my house to make their cutting. They can provide support for the house, or otherwise conduct their works more carefully. “When the company can construct its works without injury to private rights, it is in general bound to do so”(k) . Hence there is a material distinction between cases where the Legislature “directs that a thing shall at all events be done”(l) , and those where it only gives a discretionary power with choice of times and places. Where a discretion is given, it must be exercised with regard to the common rights of others. A public body which is by statute empowered to set up hospitals within a certain area, but not empowered to set up a hospital on any specified site, or required to set up any hospital at all, is not protected from liability if a hospital established under this power is a nuisance to the neighbours(m) . And even where a particular thing is required to be done, the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance(n) . A railway company is authorized to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house(o) . But a statutory power to carry cattle by railway, and provide station yards and other buildings for the reception of cattle and other things to be carried (without specification of particular places or times) is incidental to the general purposes for which the railway was authorized, and the use of a piece of land as a cattle yard under this power, though such as would be a nuisance at common law, does not give any right of action to adjoining occupiers(p) . Such a case falls within the principle not of Metropolitan Asylum District v. Hill, but of Rex v. Pease.

A gas company was authorized by statute to have its pipes laid under certain streets, and was required to supply gas to the inhabitants. The vestry, being charged by statute with the repair of the streets, but not required or authorized to use any special means, used steam rollers of such weight that the company’s pipes were often broken or injured by the resulting pressure through the soil. It was held that, even if the use of such rollers was in itself the best way of repairing the streets in the interest of the ratepayers and the public, the act of the vestry was wrongful as against the gas company, and was properly restrained by injunction(q) .

“An Act of Parliament may authorize a nuisance, and if it does so, then the nuisance which it authorizes may be lawfully committed. But the authority given by the Act may be an authority which falls short of authorizing a nuisance. It may be an authority to do certain works provided that they can be done without causing a nuisance, and whether the authority falls within that category is again a question of construction. Again the authority given by Parliament may be to carry out the works without a nuisance, if they can be so carried out, but in the last resort to authorize a nuisance if it is necessary for the construction of the works”(r) .

An authority accompanied by compulsory powers, or to be exercised concurrently with authorities ejusdem generis which are so accompanied, will, it seems, be generally treated as absolute; but no single test can be assigned as decisive(s) .

8.—

Inevitable Accident.

Inevitable accident resulting from lawful act. In the cases we have just been considering the act by which the damage is caused has been specially authorized. Let us now turn to the class of cases which differ from these in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there; or (it is perhaps better to say) which he may do without breaking any positive law. We shall assume from the first that there is no want of reasonable care on the actor’s part. For it is undoubted that if by failure in due care I cause harm to another, however innocent my intention, I am liable. This has already been noted in a general way(t) . No less is it certain, on the other hand, that I am not answerable for mere omission to do anything which it was not my specific duty to do.

It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the “consummate care” of an expert using special precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only with the class of cases where the facts are so given or determined as to exclude any negligence whatever.

Conditions of the inquiry. The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed.

On principle such accident excludes liability. It may seem to modern readers that only one solution of the problem thus stated is possible, or rather that there is no problem at all(u) . No reason is apparent for not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbour against harm which (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man’s hand(v) . If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man’s death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man’s act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented(x) . But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed.

Apparent conflict of authorities. We believe that our modern law supports the view now indicated as the rational one, that inevitable accident is not a ground of liability. But there is a good deal of appearance of authority in the older books for the contrary proposition that a man must answer for all direct consequences of his voluntary acts at any rate, or as Judge O. W. Holmes(y) has put it “acts at his peril.” Such seems to have been the early Germanic law(z) , and such was the current opinion of English lawyers until the beginning of this century, if not later. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Roman or modern Continental jurisprudence(a) ; and this, although for us not conclusive or even authoritative, is worth considering whenever our own authorities admit of doubt on a point of general principle. And, what is more important for our purpose, the point has been decided in the sense here contended for by Courts of the highest authority in the United States. To these decisions we shall first call attention.

American decisions: The Nitro-glycerine Case. In The Nitro-glycerine Case(b) the defendants, a firm of carriers, received a wooden case at New York to be carried to California. “There was nothing in its appearance calculated to awaken any suspicion as to its contents,” and in fact nothing was said or asked on that score. On arrival at San Francisco it was found that the contents (which “had the appearance of sweet oil”) were leaking. The case was then, according to the regular course of business, taken to the defendants’ offices (which they rented from the plaintiff) for examination. A servant of the defendants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last-mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namely, in 1866) become a generally known article of commerce, nor were its properties well known. It was found as a fact that the defendants had not, nor had any of the persons concerned in handling the case, knowledge or means of knowledge of its dangerous character, and that the case had been dealt with “in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their contents.” The defendants admitted their liability as for waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the building.

Doctrine of Supreme Court; no liability for accidental result of lawful act without negligence. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage: and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident(c) . “No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. . . . . The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own.”

Brown v. Kendall (Massachusetts). The Court proceeded to cite with approval the case of Brown v. Kendall in the Supreme Court of Massachusetts(d) . There the plaintiff’s and the defendant’s dogs were fighting: the defendant was beating them in order to separate them, and the plaintiff looking on. “The defendant retreated backwards from before the dogs, striking them as he retreated; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.” The action was trespass for assault and battery. It was held that the act of the defendant in itself “was a lawful and proper act which he might do by proper and safe means;” and that if “in doing this act, using due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable(e) , and therefore the action would not lie.” All that could be required of the defendant was “the exercise of due care adapted to the exigency of the case.” The rule in its general form was thus expressed: “If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom.”

Other American cases: contrary opinion in Castle v. Duryee (N. Y.). There have been like decisions in the Supreme Courts of New York(f) and Connecticut. And these rulings appear to be accepted as good law throughout the United States(g) . The general agreement of American authority and opinion is disturbed, indeed, by one modern case in the Court of Appeal of New York, that of Castle v. Duryee(h) . But the conflicting element is not in the decision itself, nor in anything necessary to it. The defendant was the colonel of a regiment of New York militia, who at the time of the cause of action were firing blank cartridge under his immediate orders in the course of a review. The plaintiff was one of a crowd of spectators who stood in front of the firing line and about 350 feet from it. Upon one of the discharges the plaintiff was wounded by a bullet, which could be accounted for only by one of the men’s pieces having by some misadventure been loaded with ball cartridge. It appeared that one company had been at target practice an hour or two before, and that at the end of the practice arms had been examined in the usual way(i) , and surplus ammunition collected. Moreover, arms had again been inspected by the commanding officers of companies, in pursuance of the colonel’s orders, before the line was formed for the regimental parade. The plaintiff sued the defendant in an action “in the nature of trespass for an assault.” A verdict for the plaintiff was ultimately affirmed on appeal, the Court being of opinion that there was evidence of negligence. Knowing that some of the men had within a short time been in possession of ball ammunition, the defendant might well have done more. He might have cleared the front of the line before giving orders to fire. The Court might further have supported its decision, though it did not, by the cases which show that more than ordinary care, nay “consummate caution”(j) , is required of persons dealing with dangerous weapons. The Chief Judge added that, as the injury was the result of an act done by the defendant’s express command, the question of negligence was immaterial. But this was only the learned judge’s individual opinion. It was not necessary to the decision, and there is nothing to show that the rest of the Court agreed to it(k) .

English authorities: cases of trespass and shooting. We may now see what the English authorities amount to. They have certainly been supposed to show that inevitable accident is no excuse when the immediate result of an act is complained of. Erskine said a century ago in his argument in the celebrated case of The Dean of St. Asaph(l) (and he said it by way of a familiar illustration of the difference between criminal and civil liability) that “if a man rising in his sleep walks into a china shop and breaks everything about him, his being asleep is a complete answer to an indictment for trespass(m) , but he must answer in an action for everything he has broken.” And Bacon had said earlier to the same purpose, that “if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course: but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party’s mind and will”(n) . Stronger examples could not well be propounded. For walking in one’s sleep is not a voluntary act at all, though possibly an act that might have been prevented: and the practice of archery was, when Bacon wrote, a positive legal duty under statutes as recent as Henry VIII.’s time, though on the other hand shooting is an extra-hazardous act(o) . We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I.(p) , and in the arguments of counsel in a case in the Year-Book of Edward IV., where the general question was more or less discussed(q) . Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Brown v. Kendall. But the decision was only that if A. cuts his hedge so that the cuttings ipso invito fall on B.’s land, this does not justify A. in entering on B.’s land to carry them off. And by Choke, C. J., it is said, not that (as Brian’s view would require) A. must keep his thorns from falling on B.’s land at all events, but that “he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out.”

Weaver v. Ward. Another case usually cited is Weaver v. Ward(r) . The plaintiff and the defendant were both members of a trainband exercising with powder, and the plaintiff was hurt by the accidental discharge of the defendant’s piece. It is a very odd case to quote for the doctrine of absolute liability, for what was there holden was that in trespass no man shall be excused, “except it may be judged utterly without his fault;” and the defendant’s plea was held bad because it only denied intention, and did not properly bring before the Court the question whether the accident was inevitable. A later case(s) , which professes to follow Weaver v. Ward, really departs from it in holding that “unavoidable necessity” must be shown to make a valid excuse. This in turn was apparently followed in the next century, but the report is too meagre to be of any value(t) .

All these, again, are shooting cases, and if they occurred at this day the duty of using extraordinary care with dangerous things would put them on a special footing. In the celebrated squib case they are cited and more or less relied upon(u) . It is not clear to what extent the judges intended to press them. According to Wilson’s report, inevitable accident was allowed by all the judges to be an excuse. But Blackstone’s judgment, according to his own report, says that nothing but “inevitable necessity” will serve, and adopts the argument of Brian in the case of the cut thorns, mistaking it for a judicial opinion; and the other judgments are stated as taking the same line, though less explicitly. For the decision itself the question is hardly material, though Blackstone may be supposed to represent the view which he thought the more favourable to his own dissenting judgment. His theory was that liability in trespass (as distinguished from an action on the case) is unqualified as regards the immediate consequences of a man’s act, but also is limited to such consequences.

Leame v Bray. Then comes Leame v. Bray(x) , a comparatively modern case, in which the defendant’s chaise had run into the plaintiff’s curricle on a dark night. The defendant was driving on the wrong side of the road; which of itself is want of due care, as every judge would now tell a jury as a matter of course. The decision was that the proper form of action was trespass and not case. Grose J. seems to have thought inevitable accident was no excuse, but this was extra-judicial. Two generations later, in Rylands v. Fletcher, Lord Cranworth inclined, or more than inclined, to the same opinion(y) . Such is the authority for the doctrine of strict liability. Very possibly more dicta to the same purpose might be collected, but I do not think anything of importance has been left out(z) . Although far from decisive, the weight of opinion conveyed by these various utterances is certainly respectable.

Cases where exception allowed. On the other hand we have a series of cases which appear even more strongly to imply, if not to assert, the contrary doctrine. A. and B. both set out in their vessels to look for an abandoned raft laden with goods. A. first gets hold of the raft, then B., and A.’s vessel is damaged by the wind and sea driving B.’s against it. On such facts the Court of King’s Bench held in 1770 that A. could not maintain trespass, “being of opinion that the original act of the defendants was not unlawful”(a) . Quite early in the century it had been held that if a man’s horse runs away with him, and runs over another man, he is not even prima facie a trespasser, so that under the old rules of pleading it was wrong to plead specially in justification(b) . Here however it may be said there was no voluntary act at all on the defendant’s part. In Wakeman v. Robinson, a modern running-down case(c) , the Court conceded that “if the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie;” thinking, however, that on the facts there was proof of negligence, they refused a new trial, which was asked for on the ground of misdirection in not putting it to the jury whether the accident was the result of negligence or not. In 1842 this declaration of the general rule was accepted by the Court of Queen’s Bench, though the decision again was on the form of pleading(d) .

Holmes v. Mather. Lastly, we have two decisions well within our own time which are all but conclusive. In Holmes v. Mather(e) the defendant was out with a pair of horses driven by his groom. The horses ran away, and the groom, being unable to stop them, guided them as best he could; at last he failed to get them clear round a corner, and they knocked down the plaintiff. If the driver had not attempted to turn the corner, they would have run straight into a shop-front, and (it was suggested) would not have touched the plaintiff at all. The jury found there was no negligence. Here the driver was certainly acting, for he was trying to turn the horses. And it was argued, on the authority of the old cases and dicta, that a trespass had been committed. The Court refused to take this view, but said nothing about inevitable accident in general. “For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid”(f) . Thus it seems to be made a question not only of the defendant being free from blame, but of the accident being such as is incident to the ordinary use of public roads. The same idea is expressed in the judgment of the Exchequer Chamber in Rylands v. Fletcher, where it is even said that all the cases in which inevitable accident has been held an excuse can be explained on the principle “that the circumstances were such as to show that the plaintiff had taken that risk upon himself”(g) .

Stanley v. Powell. More lately, in Stanley v. Powell(h) , Denman J. came, on the English authorities alone, to the conclusion above maintained, namely that, where negligence is negatived, an action does not lie for injury resulting by accident from another’s lawful act.

Conclusion. These decisions seem good warrant for saying that the principle of The Nitro-glycerine Case and Brown v. Kendall is now part of the common law in England as well as in America. All this inquiry may be thought to belong not so much to the head of exceptions from liability as to the fixing of the principles of liability in the first instance. But such an inquiry must in practice always present itself under the form of determining whether the particular circumstances exclude liability for an act or consequence which is at first sight wrongful. The same remark applies, to some extent, to the class of cases which we take next in order.

9.—

Exercise of common Rights.

Immunity in exercise of common rights. We have just left a topic not so much obscure in itself as obscured by the indirect and vacillating treatment of it in our authorities. That which we now take up is a well settled one in principle, and the difficulties have been only in fixing the limits of application. It is impossible to carry on the common affairs of life without doing various things which are more or less likely to cause loss or inconvenience to others, or even which obviously tend that way; and this in such a manner that their tendency cannot be remedied by any means short of not acting at all. Competition in business is the most obvious example. If John and Peter are booksellers in the same street, each of them must to some extent diminish the custom and profits of the other. So if they are shipowners employing ships in the same trade, or brokers in the same market. So if, instead of John and Peter, we take the three or four railway companies whose lines offer a choice of routes from London to the north. But it is needless to pursue examples. The relation of profits to competition is matter of common knowledge. To say that a man shall not seek profit in business at the expense of others is to say that he shall not do business at all, or that the whole constitution of society shall be altered. Like reasons apply to a man’s use of his own land in the common way of husbandry, or otherwise for ordinary and lawful purposes. In short, life could not go on if we did not, as the price of our own free action, abide some measure of inconvenience from the equal freedom of our neighbours. In these matters veniam petimusque damusque vicissim. Hence the rule of law that the exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage(i) . It is chiefly in this class of cases that we meet with the phrase or formula damnum sine iniuria; a form of words which, like many other Latin phrases and maxims, is too often thought to serve for an explanation, when in truth it is only an abridgment or memoria technica of the things to be explained. It is also of doubtful elegance as a technical phrase, though in general Latin literature iniuria no doubt had a sufficiently wide meaning(k) . In English usage, however, it is of long standing(l) .

The case of Gloucester Grammar School. A classical illustration of the rule is given by a case in the Year-Book of Henry IV., which has often been cited in modern books, and which is still perfectly good authority(m) . The action was trespass by two masters of the Grammar School of Gloucester against one who had set up a school in the same town, whereby the plaintiffs, having been wont to take forty pence a quarter for a child’s schooling, now got only twelve pence. It was held that such an action could not be maintained. “Damnum,” said Hankford J., “may be absque iniuria, as if I have a mill and my neighbour build another mill, whereby the profit of my mill is diminished, I shall have no action against him, though it is damage to me . . . . but if a miller disturbs the water from flowing to my mill, or doth any nuisance of the like sort, I shall have such action as the law gives.” If the plaintiffs here had shown a franchise in themselves, such as that claimed by the Universities, it might have been otherwise.

Case of mills. A case very like that of the mills suggested by Hankford actually came before the Court of Common Pleas a generation later(n) , and Newton C. J. stated the law in much the same terms. Even if the owner of the ancient mill is entitled to sue those who of right ought to grind at his mill, and grind at the new one, he has not any remedy against the owner of the new mill. “He who hath a freehold in the vill may build a mill on his own ground, and this is wrong to no man.” And the rule has ever since been treated as beyond question. Competition is in itself no ground of action, whatever damage it may cause. A trader can complain of his rival only if a definite exclusive right, such as a patent right, or the right to a trade mark, is infringed, or if there is a wilful attempt to damage his business by injurious falsehood (“slander of title”) or acts otherwise unlawful in themselves. Underselling is not a wrong, though the seller may purposely sell some article at unremunerative prices to attract custom for other articles; nor is it a wrong even to offer advantages to customers who will deal with oneself to the exclusion of a rival(o) .

“To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract their business to his own shop, would be a strange and impossible counsel of perfection”(p) . “To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the Courts. Competition exists where two or more persons seek to possess or to enjoy the same thing; it follows that the success of one must be the failure of another, and no principle of law enables us to interfere with or to moderate that success or that failure so long as it is due to mere competition”(q) . There is “no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself”(r) .

Digging wells, &c. in a man’s own land. Another group of authorities of the same class is that which establishes “that the disturbance or removal of the soil in a man’s own land, though it is the means (by process of natural percolation) of drying up his neighbour’s spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And further, that it makes no difference whether the damage arise by the water percolating away, so that it ceases to flow along channels through which it previously found its way to the spring or well; or whether, having found its way to the spring or well, it ceases to be retained there”(s) . The leading cases are Acton v. Blundell(t) and Chasemore v. Richards(u) . In the former it was expressly laid down as the governing principle “that the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such right he intercepts or drains off the water collected from underground springs in his neighbour’s well, this inconvenience to his neighbour falls within the description of damnum absque iniuria which cannot become the ground of an action.” In this case the defendant had sunk a deep pit on his own land for mining purposes, and kept it dry by pumping in the usual way, with the result of drying up a well which belonged to the plaintiff, and was used by him to supply his cotton mill.Chasemore v. Richards.Chasemore v. Richards carried the rule a step further in two directions. It settled that it makes no difference if the well or watercourse whose supply is cut off or diminished is ancient, and also (notwithstanding considerable doubt expressed by Lord Wensleydale) that it matters not whether the operations carried on by the owner of the surface are or are not for any purpose connected with the use of the land itself. The defendants in the cause were virtually the Local Board of Health of Croydon, who had sunk a deep well on their own land to obtain a water supply for the town. The making of this well, and the pumping of great quantities of water from it for the use of the town, intercepted water that had formerly found its way into the river Wandle by underground channels, and the supply of water to the plaintiff’s ancient mill, situated on that river, was diminished. Here the defendants, though using their land in an ordinary way, were not using it for an ordinary purpose. But the House of Lords refused to make any distinction on that score, and held the doctrine of Acton v. Blundell applicable(x) . The right claimed by the plaintiff was declared to be too large and indefinite to have any foundation in law. No reasonable limits could be set to its exercise, and it could not be reconciled with the natural and ordinary rights of landowners. These decisions have been generally followed in the United States(y) .

Other applications of same principle. There are many other ways in which a man may use his own property to the prejudice of his neighbour, and yet no action lies. I have no remedy against a neighbour who opens a new window so as to overlook my garden: on the other hand, he has none against me if, at any time before he has gained a prescriptive right to the light, I build a wall or put up a screen so as to shut out his view from that window. But the principle in question is not confined to the use of property. It extends to every exercise of lawful discretion in a man’s own affairs. A tradesman may depend in great measure on one large customer. This person, for some cause of dissatisfaction, good or bad, or without any assignable cause at all, suddenly withdraws his custom. His conduct may be unreasonable and ill-conditioned, and the manifest cause of great loss to the tradesman. Yet no legal wrong is done. And such matters could not be otherwise ordered. It is more tolerable that some tradesmen should suffer from the caprice of customers than that the law should dictate to customers what reasons are or are not sufficient for ceasing to deal with a tradesman.

Rogers v. Rajendro Dutt. But there are cases of this class which are not so obvious. A curious one arose at Calcutta at the time of the Indian Mutiny, and was taken up to the Privy Council. Rajendro Dutt and others, the plaintiffs below, were the owners of the Underwriter, a tug employed in the navigation of the Hoogly. A troopship with English troops arrived at the time when they were most urgently needed. For towing up this ship the captain of the tug asked an extraordinary price. Failing to agree with him, and thinking his demand extortionate, Captain Rogers, the Superintendent of Marine (who was defendant in the suit), issued a general order to officers of the Government pilot service that the Underwriter was not to be allowed to take in tow any vessel in their charge. Thus the owners not only failed to make a profit of the necessities of the Government of India, but lost the ordinary gains of their business so far as they were derived from towing ships in the charge of Government pilots. The Supreme Court of Calcutta held that these facts gave a cause of action against Captain Rogers, but the Judicial Committee reversed the decision on appeal(z) . The plaintiffs had not been prejudiced in any definite legal right. No one was bound to employ their tug, any more than they were bound to take a fixed sum for its services. If the Government of India, rightly or wrongly, thought the terms unreasonable, they might decline to deal with the plaintiffs both on the present and on other occasions, and restrain public servants from dealing with them.

“The Government certainly, as any other master, may lawfully restrict its own servants as to those whom they shall employ under them, or co-operate with in performing the services for the due performance of which they are taken into its service. Supposing it had been believed that the Underwriter was an ill-found vessel, or in any way unfit for the service, might not the pilots have been lawfully forbidden to employ her until these objections were removed? Would it not indeed have been the duty of the Government to do so? And is it not equally lawful and right when it is honestly believed that her owners will only render their services on exorbitant terms?”(x) .

It must be taken that the Court thought the order complained of did not, as a matter of fact, amount to an obstruction of the tug-owners’ common right of offering their vessel to the non-official public for employment. Conduct might easily be imagined, on the part of an officer in the defendant’s position, which would amount to this. And if it did, it would probably be a cause of action(y) .

Whether malice material in these cases. In this last case the harm suffered by the plaintiff in the Court below was not only the natural, but apparently the intended consequence of the act complained of. The defendant however acted from no reason of private hostility, but in the interest (real or supposed) of the public service. Whether the averment and proof of malice, in other words that the act complained of was done with the sole or chief intention of causing harm to the plaintiff as a private enemy(z) , would make any difference in cases of this class, does not appear to be finally decided by any authority in our law. In Rogers v. Rajendro Dutt the Judicial Committee expressly declined to say what the decision would be if this element were present. In Chasemore v. Richards the statement of facts (by an arbitrator) on which the case proceeded expressly negatived any intention to harm the plaintiff. Lord Wensleydale thought (apparently with reluctance) that the principle of regarding the presence or absence of such an intention had found no place in our law(a) ; and partly for that reason he would have liked to draw the line of unquestionable freedom of use at purposes connected with the improvement of the land itself; but he gave no authority for his statement. At the same time it must be allowed that he expressed the general sense of English lawyers(b) , and his opinion has now been followed(bb) .

Roman doctrine of “animus vicino nocendi.” The Roman lawyers on the other hand allowed that “animus vicino nocendi” did or might make a difference. In a passage cited and to some extent relied on (in the scantiness, at that time, of native authority) in Acton v. Blundell, we read: “Denique Marcellus scribit, cum eo qui in suo fodiens vicini fontem avertit, nihil posse agi, nec de dolo actionem: et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit”(c) . And this view is followed by recognized authorities in the law of Scotland, who say that an owner using his own land must act “not in mere spite or malice, in aemulationem vicini”(d) . There seems on principle to be much to recommend it. Certainly it would be no answer to say, as one is inclined to do at first sight, that the law can regard only intentions and not motives. For in some cases the law does already regard motive as distinct from proximate intention, as in actions for malicious prosecution, and in the question of privileged communications in actions for libel. And also this is really a matter of intention. Ulterior motives for a man wishing ill to his neighbour in the supposed case may be infinite: the purpose, the contemplated and desired result, is to do such and such ill to him, to dry up his well, or what else it may be. If our law is to be taken as Lord Wensleydale assumed it to be, its policy must be rested simply on a balance of expediency. Animus vicino nocendi would be very difficult of proof, at all events if proof that mischief was the only purpose were required (and it would hardly do to take less): and the evil of letting a certain kind of churlish and unneighbourly conduct, and even deliberate mischief, go without redress (there being no reason to suppose the kind a common one), may well be thought less on the whole than that of encouraging vexatious claims. In Roman law there is nothing to show whether, and how far, the doctrine of Ulpian and Marcellus was found capable of practical application. I cannot learn that it has much effect in the law of Scotland. It seems proper, however, to point out that there is really no positive English authority on the matter.

Cases of similar names. Again our law does not in general recognize any exclusive right to the use of a name, personal or local. I may use a name similar to that which my neighbour uses—and that whether I inherited or found it, or have assumed it of my own motion—so long as I do not use it to pass off my wares or business as being his. The fact that inconvenience arises from the similarity will not of itself constitute a legal injury(e) , and allegations of pecuniary damage will not add any legal effect. “You must have in our law injury as well as damage”(f) .

10.—

Leave and Licence: Volenti non fit iniuria.

Consent or acceptance of risk (leave and licence). Harm suffered by consent is, within limits to be mentioned, not a cause of civil action. The same is true where it is met with under conditions manifesting acceptance, on the part of the person suffering it, of the risk of that kind of harm. The maxim by which the rule is commonly brought to mind is “Volenti non fit iniuria.” “Leave and licence” is the current English phrase for the defence raised in this class of cases. On the one hand, however, volenti non fit iniuria is not universally true. On the other hand, neither the Latin nor the English formula provides in terms for the state of things in which there is not specific will or assent to suffer something which, if inflicted against the party’s will, would be a wrong, but only conduct showing that, for one reason or another, he is content to abide the chance of it(g) .

Express licence. The case of express consent is comparatively rare in our books, except in the form of a licence to enter upon land. It is indeed in this last connexion that we most often hear of “leave and licence,” and the authorities mostly turn on questions of the kind and extent of permission to be inferred from particular language or acts(h) .

Limits of consent. Force to the person is rendered lawful by consent in such matters as surgical operations. The fact is common enough; indeed authorities are silent or nearly so, because it is common and obvious. Taking out a man’s tooth without his consent would be an aggravated assault and battery. With consent it is lawfully done every day. In the case of a person under the age of discretion, the consent of that person’s parent or guardian is generally necessary and sufficient(i) . But consent alone is not enough to justify what is on the face of it bodily harm. There must be some kind of just cause, as the cure or extirpation of disease in the case of surgery. Wilful hurt is not excused by consent or assent if it has no reasonable object. Thus if a man licenses another to beat him, not only does this not prevent the assault from being a punishable offence, but the better opinion is that it does not deprive the party beaten of his right of action. On this principle prize-fights and the like “are unlawful even when entered into by agreement and without anger or mutual ill-will”(k) . “Whenever two persons go out to strike each other, and do so, each is guilty of an assault”(l) . The reason is said to be that such acts are against the peace, or tend to breaches of the peace. But, inasmuch as even the slightest direct application of force, if not justified, was in the language of pleading vi et armis and contra pacem, something more than usual must be meant by this expression. The distinction seems to be that agreement will not justify the wilful causing or endeavouring to cause appreciable bodily harm for the mere pleasure of the parties or others. Boxing with properly padded gloves is lawful, because in the usual course of things harmless. Fighting with the bare fist is not. Football is a lawful pastime, though many kicks are given and taken in it; a kicking match is not. “As to playing at foils, I cannot say, nor was it ever said that I know of, that it is not lawful for a gentleman to learn the use of the small sword; and yet that cannot be learned without practising with foils”(m) . Fencing, single-stick, or playing with blunt sabres in the accustomed manner, is lawful, because the players mean no hurt to one another, and take such order by the use of masks and pads that no hurt worth speaking of is likely. A duel with sharp swords after the manner of German students is not lawful, though there be no personal enmity between the men, and though the conditions be such as to exclude danger to life or limb. Here it cannot be said that “bodily harm was not the motive on either side”(n) . It seems to be what is called a question of mixed law and fact whether a particular action or contest involves such intention to do real hurt that consent or assent will not justify it(o) . Neglect of usual precautions in any pastime known to involve danger would be evidence of wrongful intention, but not conclusive evidence.

Reg. v. Coney. This question was incidentally considered by several of the judges in Reg. v. Coney(p) , where the majority of the Court held that mere voluntary presence at an unlawful fight is not necessarily punishable as taking part in an assault, but there was no difference of opinion as to a prize-fight being unlawful, or all persons actually aiding and abetting therein being guilty of assault notwithstanding that the principals fight by mutual consent. The Court had not, of course, to decide anything as to civil liability, but some passages in the judgments are material. Cave J. said: “The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial. If this view is correct a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault, nor does boxing with gloves in the ordinary way”(q) . Stephen J. said: “When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. . . . . In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as for instance in cases of wrestling, singlestick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character is a question of degree depending upon circumstances”(r) . These opinions seem equally applicable to the rule of civil responsibility(s) .

Licence gotten by fraud. A licence obtained by fraud is of no effect. This is too obvious on the general principles of the law to need dwelling upon(t) .

Extended meaning of volenti non fit iniuria. Trials of strength and skill in such pastimes as those above mentioned afford, when carried on within lawful bounds, the best illustration of the principle by which the maxim volenti non fit iniuria is enlarged beyond its literal meaning. A man cannot complain of harm (within the limits we have mentioned) to the chances of which he has exposed himself with knowledge and of his free will. Thus in the case of two men fencing or playing at singlestick, volenti non fit iniuria would be assigned by most lawyers as the governing rule, yet the words must be forced. It is not the will of one player that the other should hit him; his object is to be hit as seldom as possible. But he is content that the other shall hit him as much as by fair play he can; and in that sense the striking is not against his will. Therefore the “assault” of the school of arms is no assault in law. Still less is there an actual consent if the fact is an accident, not a necessary incident, of what is being done; as where in the course of a cricket match a player or spectator is struck by the ball. I suppose it has never occurred to any one that legal wrong is done by such an accident even to a spectator who is taking no part in the game. So if two men are fencing, and one of the foils breaks, and the broken end, being thrown off with some force, hits a bystander, no wrong is done to him. Such too is the case put in the Indian Penal Code(u) of a man who stands near another cutting wood with a hatchet, and is struck by the head flying off. It may be said that these examples are trivial. They are so, and for that reason appropriate. They show that the principle is constantly at work, and that we find little about it in our books just because it is unquestioned in common sense as well as in law.

Relation of these cases to inevitable accident. Many cases of this kind seem to fall not less naturally under the exception of inevitable accident. But there is, we conceive, this distinction, that where the plaintiff has voluntarily put himself in the way of risk the defendant is not bound to disprove negligence. If I choose to stand near a man using an axe, he may be a good woodman or not; but I cannot (it is submitted) complain of an accident because a more skilled woodman might have avoided it. A man dealing with explosives is bound, as regards his neighbour’s property, to diligence and more than diligence. But if I go and watch a firework-maker for my own amusement, and the shop is blown up, it seems I shall have no cause of action, even if he was handling his materials unskilfully. This, or even more, is implied in the decision in Ilott v. Wilkes(x) , where it was held that one who trespassed in a wood, having notice that spring-guns were set there, and was shot by a spring-gun, could not recover. The maxim “volenti non fit iniuria” was expressly held applicable: “he voluntarily exposes himself to the mischief which has happened”(y) . The case gave rise to much public excitement, and led to an alteration of the law(z) , but it has not been doubted in subsequent authorities that on the law as it stood, and the facts as they came before the Court, it was well decided. As the point of negligence was expressly raised by the pleadings, the decision is an authority that if a man goes out of his way to a dangerous action or state of things, he must take the risk as he finds it. And this appears to be material with regard to the attempt made by respectable authorities, and noticed above, to bring under this principle the head of excuse by reason of inevitable accident(a) .

Knowledge of risk opposed to duty of warning. It was held by a majority of the Court of Appeal that if a man undertakes to work in a railway tunnel where he knows that trains are constantly passing, he cannot complain of the railway company for not taking measures to warn the workmen of the approach of trains, and this though he is the servant not of the company but of the contractor(b) . The minority held that the railway company, as carrying on a dangerous business, were bound not to expose persons coming by invitation upon their property to any undue risk, and at all events the burden of proof was on them to show that the risk was in fact understood and accepted by the plaintiff(c) . “If I invite a man who has no knowledge of the locality to walk along a dangerous cliff which is my property, I owe him a duty different to that which I owe to a man who has all his life birdnested on my rocks”(d) .

But where a man goes on doing work under a risk which is known to him, and which does not depend on any one else’s acts, or on the condition of the place where the work is done, but is incident to the work itself, he cannot be heard to say that his exposure of himself to such risk was not voluntary(e) .

Cases between employers and their workmen: Smith v. Baker. The principle expressed by volenti non fit iniuria is different from that of contributory negligence(f) , as it is in itself independent of the contract of service or any other contract(g) . It does not follow that a man is negligent or imprudent because he chooses to encounter a risk which he knows and appreciates; but if he does voluntarily run the risk, he cannot complain afterwards(h) . At the same time knowledge is not of itself conclusive. The maxim is volenti—not scienti—non fit iniuria; “the question whether in any particular case a plaintiff was volens or nolens is a question of fact and not of law”(i) . A workman is not bound, for example, to throw up his employment rather than go on working with appliances which he knows or suspects to be dangerous; and continuing to use such appliances if the employer cannot or will not give him better is not conclusive to show that he voluntarily takes the attendant risk(k) . As between an employer and his own workmen, it is hardly possible to separate the question of knowledge and acceptance of a particular risk from the question whether it was a term in the contract of service (though it is seldom, if ever, an express term) that the workman should accept that risk. Since the Employers’ Liability Act has deprived the master, as we have already seen, of the defence of “common employment” in a considerable number of cases, the defence of volenti non fit iniuria has several times been resorted to, with the effect of raising complicated discussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then construing it largely, something very like the old doctrine of “common employment” might have been indirectly restored. For some time there was appreciable danger of this result. But the tendency was effectually checked by the decision of the House of Lords in Smith v. Baker(e) . Except where there is an obvious and necessary danger in the work itself, it must be a question of fact in every case whether there was an agreement or at any rate consent to take the risk. “Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action:” as in the case of works unavoidably producing noxious fumes. But where “a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer,” there “the mere continuance in service, with knowledge of the risk,” does not “preclude the employed, if he suffer from such negligence, from recovering in respect of his employer’s breach of duty”(f) . And it seems that (apart from contracts to take a class of risks) there must be consent to the particular act or operation which is hazardous, not a mere general assent inferred from knowledge that risk of a certain kind is possible(g) .

Distinction where no negligence at all. Cases of volenti non fit iniuria are of course to be distinguished from cases of pure unexpected accident where there is no proof of any negligence at all on the defendant’s part(h) . It seems that Thomas v. Quartermaine, though not so dealt with, was really a case of this latter kind(i) .

In the construction of a policy of insurance against death or injury by accident, an exception of harm “happening by exposure of the insured to obvious risk of injury” includes accidents due to a risk which would have been obvious to a person using common care and attention(k) .

Distinction fromcases where negligence is ground of action. We now see that the whole law of negligence assumes the principle of volenti non fit iniuria not to be applicable. It was suggested in Holmes v. Mather(l) that when a competent driver is run away with by his horses, and in spite of all he can do they run over a foot-passenger, the foot-passenger is disabled from suing, not simply because the driver has done no wrong, but because people who walk along a road must take the ordinary risks of traffic. But if this were so, why stop at misadventure without negligence? It is common knowledge that not all drivers are careful. It is known, or capable of being known, that a certain percentage are not careful. “No one (at all events some years ago, before the admirable police regulations of later years) could have crossed London streets without knowing that there was a risk of being run over”(m) . The actual risk to which a man crossing the street is exposed (apart from any carelessness on his own part) is that of pure misadventure, and also that of careless driving, the latter element being probably the greater. If he really took the whole risk, a driver would not be liable to him for running over him by negligence: which is absurd. Are we to say, then, that he takes on himself the one part of the risk and does not take the other? A reason thus artificially limited is no reason at all, but a mere fiction. It is simpler and better to say plainly that the driver’s duty is to use proper and reasonable care, and beyond that he is not answerable. The true view, we submit, is that the doctrine of voluntary exposure to risk has no application as between parties on an equal footing of right, of whom one does not go out of his way more than the other. A man is not bound at his peril to fly from a risk from which it is another’s duty to protect him, merely because the risk is known(n) . Much the same principle has in late years been applied, and its limits discussed, in the special branch of the law which deals with contributory negligence. This we shall have to consider in its place(o) .

11.—

Works of necessity.

Works of necessity. A class of exceptions as to which there is not much authority, but which certainly exists in every system of law, is that of acts done of necessity to avoid a greater harm, and on that ground justified. Pulling down houses to stop a fire(p) , and casting goods overboard, or otherwise sacrificing property, to save a ship or the lives of those on board, are the regular examples. The maritime law of general average assumes, as its very foundation, that the destruction of property under such conditions of danger is justifiable(q) . It is said also that “in time of war one shall justify entry on another’s land to make a bulwark in defence of the king and the kingdom.” In these cases the apparent wrong “sounds for the public good”(r) . There are also circumstances in which a man’s property or person may have to be dealt with promptly for his own obvious good, but his consent, or the consent of any one having lawful authority over him, cannot be obtained in time. Here it is evidently justifiable to do, in a proper and reasonable manner, what needs to be done. It has never been supposed to be even technically a trespass if I throw water on my neighbour’s goods to save them from fire, or seeing his house on fire, enter peaceably on his land to help in putting it out(s) . Nor is it an assault for the first passer-by to pick up a man rendered insensible by an accident, or for a competent surgeon, if he perceives that an operation ought forthwith to be performed to save the man’s life, to perform it without waiting for him to recover consciousness and give his consent. These works of charity and necessity must be lawful as well as right. Our books have only slight and scattered hints on the subject, probably because no question has ever been made(t) .

It seems that on the same principle a stranger may justify interfering with the goods of a lately deceased person so far, but only so far, as required for the protection of the estate or for other purposes of immediate necessity(u) .

12.—

Private defence.

Self-defence. Self-defence (or rather private defence(v) , for defence of one’s self is not the only case) is another ground of immunity well known to the law. To repel force by force is the common instinct of every creature that has means of defence. And when the original force is unlawful, this natural right or power of man is allowed, nay approved, by the law. Sudden and strong resistance to unrighteous attack is not merely a thing to be tolerated; in many cases it is a moral duty. Therefore it would be a grave mistake to regard self-defence as a necessary evil suffered by the law because of the hardness of men’s hearts. The right is a just and perfect one. It extends not only to the defence of a man’s own person, but to the defence of his property or possession. And what may be lawfully done for oneself in this regard may likewise be done for a wife or husband, a parent or child, a master or servant(w) . At the same time no right is to be abused or made the cloak of wrong, and this right is one easily abused. The law sets bounds to it by the rule that the force employed must not be out of proportion to the apparent urgency of the occasion. We say apparent, for a man cannot be held to form a precise judgment under such conditions. The person acting on the defensive is entitled to use as much force as he reasonably believes to be necessary. Thus it is not justifiable to use a deadly weapon to repel a push or a blow with the hand. It is even said that a man attacked with a deadly weapon must retreat as far as he safely can before he is justified in defending himself by like means. But this probably applies (so far as it is the law) only to criminal liability(x) . On the other hand if a man presents a pistol at my head and threatens to shoot me, peradventure the pistol is not loaded or is not in working order, but I shall do no wrong before the law by acting on the supposition that it is really loaded and capable of shooting. “Honest and reasonable belief of immediate danger” is enough(y) .

Killing of animals in defence of property. Cases have arisen on the killing of animals in defence of one’s property. Here, as elsewhere, the test is whether the party’s act was such as he might reasonably, in the circumstances, think necessary for the prevention of harm which he was not bound to suffer. Not very long ago the subject was elaborately discussed in New Hampshire, and all or nearly all the authorities, English and American, reviewed(z) . Some of these, such as Deane v. Clayton(a) , turn less on what amount of force is reasonable in itself than on the question whether a man is bound, as against the owners of animals which come on his land otherwise than as of right, to abstain from making the land dangerous for them to come on. And in this point of view it is immaterial whether a man keeps up a certain state of things on his own land for the purpose of defending his property or for any other purpose which is not actually unlawful.

As to injuries received by an innocent third person from an act done in self-defence, they must be dealt with on the same principle as accidental harm proceeding from any other act lawful in itself. It has to be considered, however, that a man repelling imminent danger cannot be expected to use as much care as he would if he had time to act deliberately.

Assertion of rights distinguished from self-defence. Self-defence does not include the active assertion of a disputed right against an attempt to obstruct its exercise. I am not justified in shooting, or offering to shoot, one who obstructs my right of way, though I may not be able to pass him otherwise, and though I am justified in resisting, within due bounds, any active force used on his part. It seems the better opinion “that the use of force which inflicts or may inflict grievous bodily harm or death—of what in short may be called extreme force—is justifiable only for the purpose of strict self-defence”(b) . I may be justified in pushing past the obstructor, but this is not an act of self-defence at all; it is the pure and simple exercise of my right itself(c) .

Many interesting questions, in part not yet settled, may be raised in this connexion, but their interest belongs for most practical intents to public and not to private law. It must not be assumed, of course, that whatever is a sufficient justification or excuse in a criminal prosecution will equally suffice in a civil action.

Injury to third persons from acts of self-defence. Some of the dicta in the well-known case of Scott v. Shepherd(d) go the length of suggesting that a man acting on the spur of the moment under “compulsive necessity” (the expression of De Grey C.J.) is excusable as not being a voluntary agent, and is therefore not bound to take any care at all. But this appears very doubtful. In that case it is hard to believe that Willis or Ryal, if he had been worth suing and had been sued, could have successfully made such a defence. They “had . . . . . a right to protect themselves by removing the squib, but should have taken care”—at any rate such care as was practicable under the circumstances—“to do it in such a manner as not to endamage others”(e) . The Roman lawyers held that a man who throws a stone in self-defence is not excused if the stone by misadventure strikes a person other than the assailant(f) . Perhaps this is a harsh opinion, but it seems better, if the choice must be made, than holding that one may with impunity throw a lighted squib across a market-house full of people in order to save a stall of gingerbread. At all events a man cannot justify doing for the protection of his own property a deliberate act whose evident tendency is to cause, and which does cause, damage to the property of an innocent neighbour. Thus if flood water has come on my land by no fault of my own, this does not entitle me to let it off by means which in the natural order of things cause it to flood an adjoining owner’s land(g) .

13.—

Plaintiff a wrong-doer.

Harm suffered by a wrong-doer: doubtful whether any special disability. Language is to be met with in some books to the effect that a man cannot sue for any injury suffered by him at a time when he is himself a wrong-doer. But there is no such general rule of law. If there were, one consequence would be that an occupier of land (or even a fellow trespasser) might beat or wound a trespasser without being liable to an action, whereas the right of using force to repel trespass to land is strictly limited; or if a man is riding or driving at an incautiously fast pace, anybody might throw stones at him with impunity. In Bird v. Holbrook(h) a trespasser who was wounded by a spring-gun set without notice was held entitled to maintain his action. And generally, “a trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury sustained”(i) . It does not appear on the whole that a plaintiff is disabled from recovering by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction: and even then it is difficult to find a case where it is necessary to assume any special rule of this kind. It would be no answer to an action for killing a dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory statements concerning B., and reads the letter aloud in the presence of several persons, he may be doing wrong to B. But this will not justify or excuse B. if he seizes and tears up the letter. A. is unlawfully possessed of explosives which he is carrying in his pocket. B., walking or running in a hurried and careless manner, jostles A. and so causes an explosion. Certainly A. cannot recover against B. for any hurt he takes by this, or can at most recover nominal damages, as if he had received a harmless push. But would it make any difference if A.’s possession were lawful? Suppose there were no statutory regulation at all: still a man going about with sensitive explosives in his pocket would be exposing himself to an unusual risk obvious to him and not obvious to other people, and on the principles already discussed would have no cause of action. And on the other hand it seems a strong thing to say that if another person does know of the special danger, he does not become bound to take answerable care, even as regards one who has brought himself into a position of danger by a wrongful act. Cases of this kind have sometimes been thought to belong to the head of contributory negligence. But this, it is submitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the doctrine; as if contributory negligence were a sort of positive wrong for which a man is to be punished. This, however, we shall have to consider hereafter. On the whole it may be doubted whether a mere civil wrong-doing, such as trespass to land, ever has in itself the effect now under consideration. Almost every case that can be put seems to fall just as well, if not better, under the principle that a plaintiff who has voluntarily exposed himself to a known risk cannot recover, or the still broader rule that a defendant is liable only for those consequences of his acts which are, in the sense explained in a former chapter(k) , natural and probable.

Conflict of opinion in United States in cases of Sunday travelling. In America there has been a great question, upon which there have been many contradictory decisions, whether the violation of statutes against Sunday travelling is in itself a bar to actions for injuries received in the course of such travelling through defective condition of roads, negligence of railway companies, and the like. In Massachusetts (where the law has since been altered by statute), it was held that a plaintiff in such circumstances could not recover, although the accident might just as well have happened on a journey lawful for all purposes. These decisions must be supported, if at all, by a strict view of the policy of the local statutes for securing the observance of Sunday. They are not generally considered good law, and have been expressly dissented from in some other States(l) .

The principle now defined by the Supreme Court of Massachusetts as generally applicable is that illegal conduct of the plaintiff which contributed directly and proximately to the injury suffered by him is equivalent, as matter of law, to contributory negligence(m) .

Cause of action connected with unlawful agreement. It is a rule not confined to actions on contracts that “the plaintiff cannot recover where in order to maintain his supposed claim he must set up an illegal agreement to which he himself has been a party”(n) : but its application to actions of tort is not frequent or normal. The case from which the foregoing statement is cited is the only clear example known to the writer, and its facts were very peculiar.

CHAPTER V.

OF REMEDIES FOR TORTS.

Diversity of remedies.At common law there were only two kinds of redress for an actionable wrong. One was in those cases—exceptional cases according to modern law and practice—where it was and is lawful for the aggrieved party, as the common phrase goes, to take the law into his own hands. The other way was an action for damages(a) . Not that a suitor might not obtain, in a proper case, other and more effectual redress than money compensation; but he could not have it from a court of common law. Specific orders and prohibitions in the form of injunctions or otherwise were (with few exceptions, if any)(b) in the hand of the Chancellor alone, and the principles according to which they were granted or withheld were counted among the mysteries of Equity. But no such distinctions exist under the system of the Judicature Acts, and every branch of the Court has power to administer every remedy. Therefore we have at this day, in considering one and the same jurisdiction, to bear in mind the manifold forms of legal redress which for our predecessors were separate and unconnected incidents in the procedure of different courts.

Self-help. Remedies available to a party by his own act alone may be included, after the example of the long established German usage, in the expressive name of self-help. The right of private defence appears at first sight to be an obvious example of this. But it is not so, for there is no question of remedy in such a case. We are allowed to repel force by force “not for the redress of injuries, but for their prevention”(c) ; not in order to undo a wrong done or to get compensation for it, but to cut wrong short before it is done; and the right goes only to the extent necessary for this purpose. Hence there is no more to be said of self-defence, in the strict sense, in this connexion. It is only when the party’s lawful act restores to him something which he ought to have, or puts an end to a state of things whereby he is wronged, or at least puts pressure on the wrong-doer to do him right, that self-help is a true remedy. And then it is not necessarily a complete or exclusive remedy. The acts of this nature which we meet with in the law of torts are expulsion of a trespasser, retaking of goods by the rightful possessor, distress damage feasant, and abatement of nuisances. Peaceable re-entry upon land where there has been a wrongful change of possession is possible, but hardly occurs in modern experience. Analogous to the right of retaking goods is the right of appropriating or retaining debts under certain conditions; and various forms of lien are more or less analogous to distress. These, however, belong to the domain of contract, and we are not now concerned with them. Such are the species of remedial self-help recognized in the law of England. In every case alike the right of the party is subject to the rule that no greater force must be used, or damage done to property, than is necessary for the purpose in hand. In some cases the mode of exercising the right has been specially modified or regulated. Details will best be considered hereafter in relation to the special kinds of wrong to which these kinds of redress are applicable(d) .

Judicial remedies: damages. We pass, then, from extra-judicial to judicial redress, from remedies by the act of the party to remedies by the act of the law. The most frequent and familiar of these is the awarding of damages(e) . Whenever an actionable wrong has been done, the party wronged is entitled to recover damages; though, as we shall immediately see, this right is not necessarily a valuable one. His title to recover is a conclusion of law from the facts determined in the cause. How much he shall recover is a matter of judicial discretion, a discretion exercised, if a jury tries the cause, by the jury under the guidance of the judge. As we have had occasion to point out in a former chapter(f) , the rule as to “measure of damages” is laid down by the Court and applied by the jury, whose application of it is, to a certain extent, subject to review. The grounds on which the verdict of a jury may be set aside are all reducible to this principle: the Court, namely, must be satisfied not only that its own finding would have been different (for there is a wide field within which opinions and estimates may fairly differ)(g) , but that the jury did not exercise a due judicial discretion at all(h) . Among these grounds are the awarding of manifestly excessive or manifestly inadequate damages, such as to imply that the jury disregarded, either by excess or by defect, the law laid down to them as to the elements of damage to be considered(i) , or, it may be, that the verdict represents a compromise between jurymen who were really not agreed on the main facts in issue(j) .

Nominal damages. Damages may be nominal, ordinary, or exemplary. Nominal damages are a sum of so little value as compared with the cost and trouble of suing that it may be said to have “no existence in point of quantity”(k) , such as a shilling or a penny, which sum is awarded with the purpose of not giving any real compensation. Such a verdict means one of two things. According to the nature of the case it may be honourable or contumelious to the plaintiff. Either the purpose of the action is merely to establish a right, no substantial harm or loss having been suffered, or else the jury, while unable to deny that some legal wrong has been done to the plaintiff, have formed a very low opinion of the general merits of his case. This again may be on the ground that the harm he suffered was not worth suing for, or that his own conduct had been such that whatever he did suffer at the defendant’s hands was morally deserved. The former state of things, where the verdict really operates as a simple declaration of rights between the parties, is most commonly exemplified in actions of trespass brought to settle disputed claims to rights of way, rights of common, and other easements and profits. It is not uncommon to give forty shillings damages in these cases if the plaintiff establishes his right, and if it is not intended to express any disapproval of his conduct(l) . The other kind of award of nominal damages, where the plaintiff’s demerits earn him an illusory sum such as one farthing, is illustrated chiefly by cases of defamation, where the words spoken or written by the defendant cannot be fully justified, and yet the plaintiff has done so much to provoke them, or is a person of such generally worthless character, as not to deserve, in the opinion of the jury, any substantial compensation(m) . This has happened more than once in actions against the publishers of newspapers which were famous at the time, but have not found a place in the regular reports. Nominal damages may also be given where there has been some excess in generally justifiable acts of self-defence or self-help(n) .

Nominal damages possible only when an absolute right is infringed. The enlarged power of the Court over costs since the Judicature Acts has made the question of nominal damages, which, under the old procedure, were described as “a mere peg on which to hang costs”(o) , much less important than it formerly was. But the possibility of recovering nominal damages is still a test, to a certain extent, of the nature of the right claimed. Infringements of absolute rights like those of personal security and property give a cause of action without regard to the amount of harm done, or to there being harm estimable at any substantial sum at all. As Holt C. J. said in a celebrated passage of his judgment in Ashby v. White(p) , “a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there.”

Cases where damage is the gist of the action. On the other hand, there are cases even in the law of property where, as it is said, damage is the gist of the action, and there is not an absolute duty to forbear from doing a certain thing, but only not to do it so as to cause actual damage. The right to the support of land as between adjacent owners, or as between the owner of the surface and the owner of the mine beneath, is an example. Here there is not an easement, that is, a positive right to restrain the neighbour’s use of his land, but a right to the undisturbed enjoyment of one’s own. My neighbour may excavate in his own land as much as he pleases, unless and until there is actual damage to mine: then, and not till then, a cause of action arises for me(q) . Negligence, again, is a cause of action only for a person who suffers actual harm by reason of it. A man who rides furiously in the street of a town may thereby render himself liable to penalties under a local statute or by-law; but he does no wrong to any man in particular, and is not liable to a civil action, so long as his reckless behaviour is not the cause of specific injury to person or property. The same rule holds of nuisances. So, in an action of deceit, the cause of action is the plaintiff’s having suffered damage by acting on the false statement made to him by the defendant(r) . In all these cases there can be no question of nominal damages, the proof of real damage being the foundation of the plaintiff’s right. It may happen, of course, that though there is real damage there is not much of it, and that the verdict is accordingly for a small amount. But the smallness of the amount will not make such damages nominal if they are arrived at by a real estimate of the harm suffered. In a railway accident due to the negligence of the railway company’s servants one man may be crippled for life, while another is disabled for a few days, and a third only has his clothes damaged to the value of five shillings. Every one of them is entitled, neither more nor less than the others, to have amends according to his loss.

Peculiarity of law of defamation. In the law of slander we have a curiously fine line between absolute and conditional title to a legal remedy; some kinds of spoken defamation being actionable without any allegation or proof of special damage (in which case the plaintiff is entitled to nominal damages at least), and others not; while as to written words no such distinction is made. The attempts of text-books to give a rational theory of this are not satisfactory. Probably the existing condition of the law is the result of some obscure historical accident(s) .

Ordinary damages. Ordinary damages are a sum awarded as a fair measure of compensation to the plaintiff, the amount being, as near as can be estimated, that by which he is the worse for the defendant’s wrong-doing, but in no case exceeding the amount claimed by the plaintiff himself(t) . Such amount is not necessarily that which it would cost to restore the plaintiff to his former condition. Where a tenant for years carried away a large quantity of valuable soil from his holding, it was decided that the reversioner could recover not what it would cost to replace the soil, but only the amount by which the value of the reversion was diminished(u) . In other words compensation, not restitution, is the proper test. Beyond this it is hardly possible to lay down any universal rule for ascertaining the amount, the causes and circumstances of actionable damage being infinitely various. And in particular classes of cases only approximate generalization is possible. In proceedings for the recovery of specific property or its value there is not so much difficulty in assigning a measure of damages, though here too there are unsettled points(v) . But in cases of personal injury and consequential damage by loss of gains in a business or profession it is not possible either completely to separate the elements of damage, or to found the estimate of the whole on anything like an exact calculation(x) . There is little doubt that in fact the process is often in cases of this class even a rougher one than it appears to be, and that legally irrelevant circumstances, such as the wealth and condition in life of the parties, have much influence on the verdicts of juries: a state of things which the law does not recognize, but practically tolerates within large bounds.

Exemplary damages. One step more, and we come to cases where there is great injury without the possibility of measuring compensation by any numerical rule, and juries have been not only allowed but encouraged to give damages that express indignation at the defendant’s wrong rather than a value set upon the plaintiff’s loss. Damages awarded on this principle are called exemplary or vindictive. The kind of wrongs to which they are applicable are those which, besides the violation of a right or the actual damage, import insult or outrage, and so are not merely injuries but iniuriae in the strictest Roman sense of the term. The Greek ὕβρις perhaps denotes with still greater exactness the quality of the acts which are thus treated. An assault and false imprisonment under colour of a pretended right in breach of the general law, and against the liberty of the subject(y) ; a wanton trespass on land, persisted in with violent and intemperate behaviour(z) ; the seduction of a man’s daughter with deliberate fraud, or otherwise under circumstances of aggravation(a) ; such are the acts which, with the open approval of the Courts, juries have been in the habit of visiting with exemplary damages. Gross defamation should perhaps be added; but there it is rather that no definite principle of compensation can be laid down than that damages can be given which are distinctly not compensation. It is not found practicable to interfere with juries either way(b) , unless their verdict shows manifest mistake or improper motive. There are other miscellaneous examples of an estimate of damages coloured, so to speak, by disapproval of the defendant’s conduct (and in the opinion of the Court legitimately so), though it be not a case for vindictive or exemplary damages in the proper sense. In an action for trespass to land or goods substantial damages may be recovered though no loss or diminution in value of property may have occurred(c) . In an action for negligently pulling down buildings to an adjacent owner’s damage, evidence has been admitted that the defendant wanted to disturb the plaintiff in his occupation, and purposely caused the work to be done in a reckless manner: and it was held that the judge might properly authorize a jury to take into consideration the words and conduct of the defendant “showing a contempt of the plaintiff’s rights and of his convenience”(d) . Substantial damages have been allowed for writing disparaging words on a paper belonging to the plaintiff, although there was no publication of the libel(e) .

“It is universally felt by all persons who have had occasion to consider the question of compensation, that there is a difference between an injury which is the mere result of such negligence as amounts to little more than accident, and an injury, wilful or negligent, which is accompanied with expressions of insolence. I do not say that in actions of negligence there should be vindictive damages such as are sometimes given in actions of trespass, but the measure of damage should be different, according to the nature of the injury and the circumstances with which it is accompanied”(f) .

The case now cited was soon afterwards referred to by Willes J. as an authority that a jury might give exemplary damages, though the action was not in trespass, from the character of the wrong and the way in which it was done(g) .

Analogy of breach of promise of marriage to torts in this respect. The action for breach of promise of marriage, being an action of contract, is not within the scope of this work; but it has curious points of affinity with actions of tort in its treatment and incidents; one of which is that a very large discretion is given to the jury as to damages(h) .

Mitigation of damages. As damages may be aggravated by the defendant’s illbehaviour or motives, so they may be reduced by proof of provocation, or of his having acted in good faith: and many kinds of circumstances which will not amount to justification or excuse are for this purpose admissible and material. “In all cases where motive may be ground of aggravation, evidence on this score will also be admissible in reduction of damages”(i) . For the rest, this is an affair of common knowledge and practice rather than of reported authority.

Concurrent but severable causes of action. “Damages resulting from one and the same cause of action must be assessed and recovered once for all”; but where the same facts give rise to two distinct causes of action, though between the same parties, action and judgment for one of these causes will be no bar to a subsequent action on the other. A man who has had a verdict for personal injuries cannot bring a fresh action if he afterwards finds that his hurt was graver than he supposed. On the other hand, trespass to goods is not the same cause of action as trespass to the person, and the same principle holds of injuries caused not by voluntary trespass, but by negligence; therefore where the plaintiff, driving a cab, was run down by a van negligently driven by the defendant’s servant, and the cab was damaged and the plaintiff suffered bodily harm, it was held that after suing and recovering for the damage to the cab the plaintiff was free to bring a separate action for the personal injury(k) . Apart from questions of form, the right to personal security certainly seems distinct in kind from the right to safe enjoyment of one’s goods, and such was the view of the Roman lawyers(l) .

Injunctions. Another remedy which is not, like that of damages, universally applicable, but which is applied to many kinds of wrongs where the remedy of damages would be inadequate or practically worthless, is the granting of an injunction to restrain the commission of wrongful acts threatened, or the continuance of a wrongful course of action already begun. There is now no positive limit to the jurisdiction of the Court to issue injunctions, beyond the Court’s own view (a judicial view, that is) of what is just and convenient(m) . Practically, however, the lines of the old equity jurisdiction have thus far been in the main preserved. The kinds of tort against which this remedy is commonly sought are nuisances, violations of specific rights of property in the nature of nuisance, such as obstruction of light and disturbance of easements, continuing trespasses, and infringements of copyright and trademarks. In one direction the High Court has, since the Judicature Acts, distinctly accepted and exercised an increased jurisdiction. It will now restrain, whether by final(n) or interlocutory(o) injunction, the publication of a libel or, in a clear case, the oral uttering of slander(p) calculated to injure the plaintiff in his business. In interlocutory proceedings, however, this jurisdiction is exercised with caution(o) , and only in a very clear case(q) , and not where the libel, however unjustifiable, does not threaten immediate injury to person or property(r) .

On what principle granted. The special rules and principles by which the Court is guided in administering this remedy can be profitably discussed only in connexion with the particular causes of action upon which it is sought. All of them, however, are developments of the one general principle that an injunction is granted only where damages would not be an adequate remedy, and an interim injunction only where delay would make it impossible or highly difficult to do complete justice at a later stage(s) . In practice very many causes were in the Court of Chancery, and still are, really disposed of on an application for an injunction which is in form interlocutory: the proceedings being treated as final by consent, when it appears that the decision of the interlocutory question goes to the merits of the whole case.

Former concurrent jurisdiction of common law and equity to give compensation for fraud. In certain cases of fraud (that is, wilfully or recklessly false representation of fact) the Court of Chancery had before the Judicature Acts concurrent jurisdiction with the courts of common law, and would award pecuniary compensation, not in the name of damages, indeed, but by way of restitution or “making the representation good”(t) . In substance, however, the relief came to giving damages under another name, and with more nicety of calculation than a jury would have used. Since the Judicature Acts it does not appear to be material whether the relief administered in such a case be called damages or restitution; unless indeed it were contended in such a case that (according to the rule of damages as regards injuries to property)(u) the plaintiff was entitled not to be restored to his former position or have his just expectation fulfilled, but only to recover the amount by which he is actually the worse for the defendant’s wrong-doing. Any contention of that kind would no doubt be effectually excluded by the authorities in equity; but even without them it would scarcely be a hopeful one.

Special statutory remedies, when exclusive. Duties of a public nature are constantly defined or created by statute, and generally, though not invariably, special modes of enforcing them are provided by the same statutes. Questions have arisen as to the rights and remedies of persons who suffer special damage by the breach or non-performance of such duties. Here it is material (though not necessarily decisive) to observe to whom and in what form the specific statutory remedy is given. If the Legislature, at the same time that it creates a new duty, points out a special course of private remedy for the person aggrieved (for example, an action for penalties to be recovered, wholly or in part, for the use of such person), then it is generally presumed that the remedy so provided was intended to be, and is, the only remedy. The provision of a public remedy without any special means of private compensation is in itself consistent with a person specially aggrieved having an independent right of action for injury caused by a breach of the statutory duty(v) . And it has been thought to be a general rule that where the statutory remedy is not applicable to the compensation of a person injured, that person has a right of action(w) . But the Court of Appeal has repudiated any such fixed rule, and has laid down that the possibility or otherwise of a private right of action for the breach of a public statutory duty must depend on the scope and language of the statute taken as a whole. A waterworks company was bound by the Waterworks Clauses Act, 1847, incorporated in the company’s special Act, to maintain a proper pressure in its pipes, under certain public penalties. It was held that an inhabitant of the district served by the company under this Act had no cause of action against the company for damage done to his property by fire by reason of the pipes being insufficiently charged. The Court thought it unreasonable to suppose that Parliament intended to make the company insurers of all property that might be burnt within their limits by reason of deficient supply or pressure of water(w) .

No private redress unless the harm suffered is within the mischief aimed at by the statute. Also the harm in respect of which an action is brought for the breach of a statutory duty must be of the kind which the statute was intended to prevent. If cattle being carried on a ship are washed overboard for want of appliances prescribed by an Act of Parliament for purely sanitary purposes, the shipowner is not liable to the owner of the cattle by reason of the breach of the statute(x) : though he will be liable if his conduct amounts to negligence apart from the statute and with regard to the duty of safe carriage which he has undertaken(y) , and in an action not founded on a statutory duty the disregard of such a duty, if likely to cause harm of the kind that has been suffered, may be a material fact(z) .

Joint wrong-doers may be sued jointly or severally: but judgment against any is bar to further action. Where more than one person is concerned in the commission of a wrong, the person wronged has his remedy against all or any one or more of them at his choice. Every wrong-doer is liable for the whole damage, and it does not matter (as we saw above)(a) , whether they acted, as between themselves, as equals, or one of them as agent or servant of another. There are no degrees of responsibility, nothing answering to the distinction in criminal law between principals and accessories. But when the plaintiff in such a case has made his choice, he is concluded by it. After recovering judgment against some or one of the joint authors of a wrong, he cannot sue the other or others for the same matter, even if the judgment in the first action remains unsatisfied. By that judgment the cause of action “transit in rem iudicatam,” and is no longer available(b) . The reason of the rule is stated to be that otherwise a vexatious multiplicity of actions would be encouraged.

Rules as to contribution and indemnity. As between joint wrong-doers themselves, one who has been sued alone and compelled to pay the whole damages has no right to indemnity or contribution from the other(c) , if the nature of the case is such that he “must be presumed to have known that he was doing an unlawful act”(d) . Otherwise, “where the matter is indifferent in itself,” and the wrongful act is not clearly illegal(e) , but may have been done in honest ignorance, or in good faith to determine a claim of right, there is no objection to contribution or indemnity being claimed. “Every man who employs another to do an act which the employer appears to have a right to authorize him to do undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have.” Therefore an auctioneer who in good faith sells goods in the way of his business on behalf of a person who turns out to have no right to dispose of them is entitled to be indemnified by that person against the resulting liability to the true owner(f) . And persons entrusted with goods as wharfingers or the like who stop delivery in pursuance of their principal’s instructions may claim indemnity if the stoppage turns out to be wrongful, but was not obviously so at the time(g) . In short, the proposition that there is no contribution between wrong-doers must be understood to affect only those who are wrong-doers in the common sense of the word as well as in law. The wrong must be so manifest that the person doing it could not at the time reasonably suppose that he was acting under lawful authority. Or, to put it summarily, a wrong-doer by misadventure is entitled to indemnity from any person under whose apparent authority he acted in good faith; a wilful or negligent(h) wrong-doer has no claim to contribution or indemnity. There does not appear any reason why contribution should not be due in some cases without any relation of agency and authority between the parties. If several persons undertake in concert to abate an obstruction to a supposed highway, having a reasonable claim of right and acting in good faith for the purpose of trying the right, and it turns out that their claim cannot be maintained, it seems contrary to principle that one of them should be compellable to pay the whole damages and costs without any recourse over to the others. I cannot find, however, that any decision has been given on facts of this kind; nor is the question very likely to arise, as the parties would generally provide for expenses by a subscription fund or guaranty.

Supposed rule of trespass being “merged in felony. It has been currently said, sometimes laid down, and once or twice acted on as established law, that when the facts affording a cause of action in tort are such as to amount to a felony, there is no civil remedy against the felon(i) for the wrong, at all events before the crime has been prosecuted to conviction. And as, before 1870(j) , a convicted felon’s property was forfeited, there would at common law be no effectual remedy afterwards. So that the compendious form in which the rule was often stated, that “the trespass was merged in the felony,” was substantially if not technically correct. But so much doubt has been thrown upon the supposed rule in several recent cases, that it seems, if not altogether exploded, to be only awaiting a decisive abrogation. The result of the cases in question is that, although it is difficult to deny that some such rule exists, the precise extent of the rule, and the reasons of policy on which it is founded, are uncertain, and it is not known what is the proper mode of applying it. As to the rule, the best supported version of it appears to be to this effect: Where the same facts amount to a felony and are such as in themselves would constitute a civil wrong, a cause of action for the civil wrong does arise. But the remedy is not available for a person who might have prosecuted the wrong-doer for the felony, and has failed to do so. The plaintiff ought to show that the felon has actually been prosecuted to conviction (by whom it does not matter, nor whether it was for the same specific offence), or that prosecution is impossible (as by the death of the felon or his immediate escape beyond the jurisdiction), or that he has endeavoured to bring the offender to justice, and has failed without any fault of his own(k) .

No known means of enforcing the rule, if indeed it exists. It is admitted that when any of these conditions is satisfied there is both a cause of action and a presently available remedy. But if not, what then? It is said to be the duty of the person wronged to prosecute for the felony before he brings a civil action; “but by what means that duty is to be enforced, we are nowhere informed”(l) . Its non-performance is not a defence which can be set up by pleading(m) , nor is a statement of claim bad for showing on the face of it that the wrongful act was felonious(n) . Neither can the judge nonsuit the plaintiff if this does not appear on the pleadings, but comes out in evidence at the trial(o) . It has been suggested that the Court might in a proper case, on the application of the Crown or otherwise, exercise its summary jurisdiction to stay proceedings in the civil action(p) : but there is no example of this. Whatever may be the true nature and incidents of the duty of the wronged party to prosecute, it is a personal one and does not extend to a trustee in bankruptcy(q) , nor, it is conceived, to executors in the cases where executors can sue. On the whole there is apparent in quarters of high authority a strong though not unanimous disposition to discredit the rule as a mere cantilena of text-writers founded on ambiguous or misapprehended cases, or on dicta which themselves were open to the same objections(r) . At the same time it is certain that the judges consulted by the House of Lords in Marsh v. Keating(s) thought such a rule existed, though it was not applicable to the case in hand; and that in Ex parte Elliott(t) it was effectually applied to exclude a proof in bankruptcy.

Locality of wrongful act as affecting remedy in English court. Lastly we have to see under what conditions there may be a remedy in an English court for an act in the nature of a tort committed in a place outside the territorial jurisdiction of the court. It is needless to state formally that no action can be maintained in respect of an act which is justified or excused according to both English and local law. Besides this obvious case, the following states of things are possible.

Acts not wrongful by English law. 1. The act may be such that, although it may be wrongful by the local law, it would not be a wrong if done in England. In this case no action lies in an English court. The court will not carry respect for a foreign municipal law so far as to “give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed”(u) .

Acts justified by local law. 2. The act, though in itself it would be a trespass by the law of England, may be justified or excused by the local law. Here also there is no remedy in an English court(x) . And it makes no difference whether the act was from the first justifiable by the local law, or, not being at the time justifiable, was afterwards ratified or excused by a declaration of indemnity proceeding from the local sovereign power. In the well-known case of Phillips v. Eyre(y) , where the defendant was governor of Jamaica at the time of the trespasses complained of, an Act of indemnity subsequently passed by the colonial Legislature was held effectual to prevent the defendant from being liable in an action for assault and false imprisonment brought in England. But nothing less than justification by the local law will do. Conditions of the lex fori suspending or delaying the remedy in the local courts will not be a bar to the remedy in an English court in an otherwise proper case(z) . And our courts would possibly make an exception to the rule if it appeared that by the local law there was no remedy at all for a manifest wrong, such as assault and battery committed without any special justification or excuse(a) .

Act wrongful by both laws. 3. The act may be wrongful by both the law of England and the law of the place where it was done. In such a case an action lies in England, without regard to the nationality of the parties(b) , provided the cause of action is not of a purely local kind, such as trespass to land. This last qualification was formerly enforced by the technical rules of venue, with the distinction thereby made between local and transitory actions: but the grounds were substantial and not technical, and when the Judicature Acts abolished the technical forms(c) they did not extend the jurisdiction of the Court to cases in which it had never been exercised. The result of the contrary doctrine would be that the most complicated questions of local law might have to be dealt with here as matters of fact, not incidentally (as must now and then unavoidably happen in various cases), but as the very substance of the issues; besides which, the Court would have no means of ensuring or supervising the execution of its judgments.

Judgment of Ex. Ch. in Phillips v. Eyre. We have stated the law for convenience in a series of distinct propositions. But, considering the importance of the subject, it seems desirable also to reproduce the continuous view of it given in the judgment of the Exchequer Chamber delivered by Willes J. in Phillips v. Eyre:—

“Our courts are said to be more open to admit actions founded upon foreign transactions than those of any other European country; but there are restrictions in respect of locality which exclude some foreign causes of action altogether, namely, those which would be local if they arose in England, such as trespass to land: Doulson v. Matthews(d) ; and even with respect to those not falling within that description our courts do not undertake universal jurisdiction. As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England: therefore, in The Halley(e) the Judicial Committee pronounced against a suit in the Admiralty founded upon a liability by the law of Belgium for collision caused by the act of a pilot whom the shipowner was compelled by that law to employ, and for whom, therefore, as not being his agent, he was not responsible by English law. Secondly, the act must not have been justifiable by the law of the place where it was done. Therefore in Blad’s Case(f) , and Blad v. Bamfield(g) , Lord Nottingham held that a seizure in Iceland, authorized by the Danish Government and valid by the law of the place, could not be questioned by civil action in England, although the plaintiff, an Englishman, insisted that the seizure was in violation of a treaty between this country and Denmark— a matter proper for remonstrance, not litigation. And in Dobree v. Napier(h) , Admiral Napier having, when in the service of the Queen of Portugal, captured in Portuguese water an English ship breaking blockade, was held by the Court of Common Pleas to be justified by the law of Portugal and of nations, though his serving under a foreign prince was contrary to English law, and subjected him to penalties under the Foreign Enlistment Act. And in Reg. v. Lesley(i) , an imprisonment in Chili on board a British ship, lawful there, was held by Erle C. J., and the Court for Crown Cases Reserved, to be no ground for an indictment here, there being no independent law of this country making the act wrongful or criminal. As to foreign laws affecting the liability of parties in respect of bygone transactions, the law is clear that, if the foreign law touches only the remedy or procedure for enforcing the obligation, as in the case of an ordinary statute of limitations, such law is no bar to an action in this country; but if the foreign law extinguishes the right it is a bar in this country equally as if the extinguishment had been by a release of the party, or an act of our own Legislature. This distinction is well illustrated on the one hand by Huber v. Steiner(k) , where the French law of five years’ prescription was held by the Court of Common Pleas to be no answer in this country to an action upon a French promissory note, because that law dealt only with procedure, and the time and manner of suit (tempus et modum actionis instituendae), and did not affect to destroy the obligation of the contract (valorem contractus); and on the other hand by Potter v. Brown(l) , where the drawer of a bill at Baltimore upon England was held discharged from his liability for the non-acceptance of the bill here by a certificate in bankruptcy, under the law of the United States of America, the Court of Queen’s Bench adopting the general rule laid down by Lord Mansfield in Ballantine v. Golding(m) , and ever since recognized, that, ‘what is a discharge of a debt in the country where it is contracted is a discharge of it everywhere.’ So that where an obligation by contract to pay a debt or damages is discharged and avoided by the law of the place where it was made, the accessory right of action in every court open to the creditor unquestionably falls to the ground. And by strict parity of reasoning, where an obligation ex delicto to pay damages is discharged and avoided by the law of the country where it was made, the accessory right of action is in like manner discharged and avoided. Cases may possibly arise in which distinct and independent rights or liabilities or defences are created by positive and specific laws of this country in respect of foreign transactions; but there is no such law (unless it be the Governors Act already discussed and disposed of) applicable to the present case.”

Limitation of actions. The times in which actions of tort must be brought are fixed by the Statute of Limitation of James I. (21 Jac. 1, c. 16) as modified by later enactments(n) . No general principle is laid down, but actionable wrongs are in effect divided into three classes, with a different term of limitation for each. These terms, and the causes of action to which they apply, are as follows, the result being stated, without regard to the actual words of the statute, according to the modern construction and practice:—

Six years.

Trespass to land and goods, conversion, and all other common law wrongs (including libel) except slander by words actionable per se(o) and injuries to the person.

Four years.

Injuries to the person (including imprisonment).

Two years.

Slander by words actionable per se.

Suspension of the statute by disabilities. Persons who at the time of their acquiring a cause of action are infants, or lunatics(p) , have the period of limitation reckoned against them only from the time of the disability ceasing; and if a defendant is beyond seas at the time of the right of action arising, the time runs against the plaintiff only from his return. No part of the United Kingdom or of the Channel Islands is deemed to be beyond seas for this purpose(p) . Married women are no longer within this provision since the Married Women’s Property Act of 1882(q) . If one cause of disability supervenes on another unexpired one (as formerly where a woman married under age), the period of limitation probably runs only from the expiration of the latter disability(r) .

From what time action runs. Where damage is the gist of the action, the time runs only from the actual happening of the damage(s) .

In trover the statute runs from demand on and refusal by the defendant, whether the defendant were the first converter of the plaintiff’s goods or not(u) .

Protection of public officers. Justices of the peace(x) and constables(y) are protected by general enactments that actions against them for any thing done in the execution of their office must be brought within six months of the act complained of; and a similar rule has now been made as to all acts done in execution or intended execution of statutory and other public duties or authorities(z) .

The enforcement of statutory duties is often made subject by the same Acts which create the duties to a short period of limitation. For the most part these provisions do not really belong to our subject, but to various particular branches of public law. The existence of such provisions in Lord Campbell’s Act and the Employers’ Liability Act has already been noticed.

Exception of concealed fraud. The operation of the Statute of Limitation is further subject to the exception of concealed fraud, derived from the doctrine and practice of the Court of Chancery, which, whether it thought itself bound by the terms of the statute, or only acted in analogy to it(a) , considerably modified its literal application. Where a wrong-doer fraudulently conceals his own wrong, the period of limitation runs only from the time when the plaintiff discovers the truth, or with reasonable diligence would discover it. Such is now the rule of the Supreme Court in every branch of it and in all causes(b) .

A plaintiff may not set up by way of amendment claims in respect of causes of action which are barred by the statute at the date of amendment, though they were not so at the date of the original writ(c) .

It has often been remarked that, as matter of policy, the periods of limitation fixed by the statute of James are unreasonably long for modern usage; but modern legislation has done nothing beyond removing some of the privileged disabilities, and attaching special short periods of limitation to some special statutory rights. The Statutes of Limitation ought to be systematically revised as a whole.

Conclusion of General Part. We have now reviewed the general principles which are common to the whole law of Torts as to liability, as to exceptions from liability, and as to remedies. In the following part of this work we have to do with the several distinct kinds of actionable wrongs, and the law peculiarly applicable to each of them.

[(a) ]Appendix A.

[(b) ]The first, or almost the first, writer who has clearly called attention to it is Sir William Markby. See the chapter on Liability in his “Elements of Law.”

[(c) ]Comm. iii. 118.

[(d) ]In some cases the really effectual remedies were administered by the Court of Chancery, but only as auxiliary to the legal right, which it was often necessary to establish in an action at law before the Court of Chancery would interfere.

[(e) ]Trespass to land may or may not be an exception, according to the view we take of the nature of the liabilities enforced by the possessory remedies of the Roman law. Some modern authorities, though not most, regard these as ex delicto.

[(f) ]Per Cur. Entick v. Carrington, 19 St. Tr. 1066.

[(g) ]See Hollins v. Fowler, L. R. 7 H. L. 757, 44 L. J. Q. B. 169.

[(h) ]How far such a doctrine can be theoretically or historically justified is not an open question for English courts of justice, for it has been explicitly affirmed by the House of Lords: Rylands v. Fletcher (1868), L. R. 3 H. L. 330, 37 L. J. Ex. 161.

[(i) ]Compare the statement of “duty towards my neighbour,” in the Church Catechism, probably from the hand of Goodrich, Bishop of Ely, who was a learned civilian: “To hurt nobody by word nor deed: To be true and just in all my dealing . . . .”

[(k) ]Lord O’Hagan, L. R. 7 H. L. at p. 799.

[(l) ]The writ of right (Glanvill, Bk. i. c. 6) runs thus: “Rex vicecomiti salutem: Praecipe A. quod sine dilatione reddat B. unam hidam terrae in villa illa, unde idem B. queritur quod praedictus A. ei deforceat: et nisi fecerit, summone eum,” &c. The writ of debt (Bk. x. c. 2) thus: “Rex vicecomiti salutem: Praecipe N. quod iuste et sine dilatione reddat R. centum marcas quas ei debet, ut dicit, et unde queritur quod ipse ei iniuste deforceat. Et nisi fecerit, summone eum,” &c. The writs of covenant and account, which were developed later, also contain the characteristic words iuste et sine dilatione.

[(m) ]Blackstone, iii. 122; F. N. B. 92. The mark of this class of actions is the conclusion of the writ contra pacem. Writs of assize, including the assize of nuisance, did not so conclude, but show analogies of form to the writ of trespass in other respects. Actions on the case might be founded on other writs besides that of trespass, e.g., deceit, which contributed largely to the formation of the action of assumpsit. The writ of trespass itself is by no means one of the most ancient: see F. W. Maitland in Harv. Law Rev. iii. 217—219.

[(n) ]Not retaliation. Early Germanic law shows no trace of retaliation in the strict sense. A passage in the introduction to Alfred’s laws, copied from the Book of Exodus, is no real exception.

[(o) ]For the advantages of suing in case over the older forms of actions, see Blackstone, iii. 153, 155. The reason given at p. 152 for the wager of law (as to which see Co. Litt. 295 a) being allowed in debt and detinue is some one’s idle guess, due to mere ignorance of the earlier history.

[(p) ]Except what may be implied from the technical rule that the word debet was proper only in an action for a sum of money between the original parties to the contract: F. N. B. 119; Blackstone, iii. 156.

[(q) ]Bryant v. Herbert (1878), 3 C. P. Div. 389, 47 L. J. C. P. 670.

[(r) ]In his edition of the Institutes, note to Bk. iv. tit. 1, p. 513, 2nd ed.

[(s) ]Rylands v. Fletcher, L. R. 3 H. L. 330, 37 L. J. Ex. 161.

[(t) ]Austin’s perverse and unintelligent criticism of this perfectly rational terminology has been treated with far more respect than it deserves. It is true, however, that the application of the term in the Institutes is not quite consistent or complete. See Mr. Moyle’s notes on I. iv. 5.

[(u) ]L. R. 3 H. L. 330. See Ch. XII. below.

[(a) ]In Gaius iii. 223, 224, the contrast between the ancient law of fixed penalties and the modern law of damages assessed by judicial authority is clearly shown. The student will remember that, as regards the stage of development attained, the law of Justinian, and often that of Gaius, is far more modern than the English law of the Year-Books. Perhaps the historical contrast holds only in Europe: see a note in L. Q. R. ix. 97, showing that among the Kachins on the Burmese frontier claims for unliquidated damages are not only known but freely assignable.

[(b) ]The developed Roman law had either attained or was on the point of attaining a like generality of application, “Denique aliis pluribus modis admitti iniuriam manifestum est”: I. iv. 4, 1.

[(c) ]Gully v. Smith (1883) 12 Q. B. D. 121, 53 L. J. M. C. 35.

[(d) ]Atkinson v. Newcastle Waterworks Co. (1877) 2 Ex. Div. 441, 46 L. J. Ex. 775.

[(e) ]Gorris v. Scott (1874) L. R. 9 Ex. 125, 43 L. J. Ex. 92; Ward v. Hobbs (1878) 4 App. Ca. 13, 23, 48 L. J. Q. B. 281.

[(f) ]D. 50. 17, de div. reg. iuris antiqui, 132; cf. D. 9. 2, ad legem Aquiliam, 8. Both passages are from Gaius.

[(g) ]Hammack v. White (1862) 11 C. B. N. S. 588, 31 L. J. C. P. 129; Holmes v. Mather (1875) L. R. 10 Ex. 261, 44 L. J. Ex. 176.

[(h) ]For shortness’ sake I shall often use the word “act” alone as equivalent to “act or default.”

[(i) ]Maxims of the Law, Reg. 1. It is remarkable that not one of the examples adduced by Bacon belongs to the law of torts, or raises a question of the measure of damages. There could be no stronger illustration of the extremely modern character of the whole subject as now understood.

[(k) ]Hadley v. Baxendale (1854) 9 Ex. 341, 23 L. J. Ex. 179.

[(l) ]Whether it is practically worth while to sue on a contract must, indeed, often turn on the measure of damages. But this need not concern us here.

[(m) ]In criminal law there is some difficulty in the case of attempted personal offences. There is no doubt that if A. shoots and kills or wounds X., under the belief that the man he shoots at is Z., he is in no way excused by the mistake, and cannot be heard to say that he had no unlawful intention as to X.: R. v. Smith (1855) Dears. 559. But if he misses, it seems doubtful whether he can be said to have attempted to kill either X. or Z. Cf. R. v. Latimer (1886) 17 Q. B. D. 359, 55 L. J. M. C. 135. In Germany there is a whole literature of modern controversy on the subject. See Dr. R. Franz, “Vorstellung und Wille in der modernen Doluslehre,” Ztsch. für die gesamte Strafrechtswissenschaft, x. 169.

[(n) ]Scott v. Shepherd, 2 W. Bl. 892; and in 1 Sm. L. C. No doubt was entertained of Shepherd’s liability; the only question being in what form of action he was liable. The inference of wrongful intention is in this case about as obvious as it can be; it was, however, not necessary, squib-throwing, as Nares J. pointed out, having been declared a nuisance by statute.

[(o) ]Year-Book 17 Edw. IV. 1, translated in Blackburn on Sale, at p. 193 in 1st ed., 261 in 2nd ed. by Graham.

[(p) ]“Normal, or likely or probable of occurrence in the ordinary course of things, would perhaps be the better expression”: Grove J. in Smith v. Green, 1 C. P. D. at p. 96. But what is normal or likely to a specialist may not be normal or likely to a plain man’s knowledge and experience.

[(q) ]Thus Quain J. said (Sneesby v. L. & Y. Rail. Co., L. R. 9 Q. B. at p. 268): “In tort the defendant is liable for all the consequences of his illegal act, where they are not so remote as to have no direct connexion with the act, as by the lapse of time for instance.”

[(r) ]“The doctrine of causation,” said Fry L. J., “involves much difficulty in philosophy as in law”: Seton v. Lafone (1887) 19 Q. B. Div. at p. 74, 56 L. J. Q. B. 415.

[(s) ]4 Denio, 464. The decision seems to be generally accepted as good law.

[(t) ]Guille v. Swan (1822) 19 Johns. 381.

[(u) ]Per Spencer C.J. It appeared that the defendant (plaintiff in error) had called for help; but this was treated as immaterial. The recent Scottish case of Scott’s Trustees v. Moss (1889), 17 Ct. of Sess. C. 4th S. 32, is hardly so strong, for there a parachute descent was not only contemplated but advertised as a public entertainment.

[(v) ](1867) L. R. 3 Q. B. 25, 37 L. J. Q. B. 57.

[(x) ]Digest of the Criminal Law, Arts. 219, 220.

[(y) ]Alderson B. in Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781, 25 L. J. Ex. 212. This is not a complete definition, since a man is not liable for even wilful omission without some antecedent ground of duty. But of that hereafter.

[(z) ]Per Pollock C. B. (1850) 5 Ex. at p. 248.

[(a) ]9 B. & S. 303 (1868); cp. Harris v. Mobbs (Denman J. 1878) 3 Ex. D. 268, which, perhaps, goes a step farther.

[(b) ]L. R. 9 Ex. 157, 43 L. J. Ex. 105 (1874). Cp. Hayes v. Michigan Central Rail. Co. (1883) 111 U. S. 228.

[(c) ]Amphlett B. at p. 162.

[(d) ]L. R. 5 Ex. 204, 39 L. J. Ex. 163 (1870); in Ex. Ch. L. R. 7 Ex. 247 (1872). This comes near the case of letting loose a dangerous animal; a drifting vessel is in itself a dangerous thing. In The George and Richard, L. R. 3 A. & E. 466, a brig by negligent navigation ran into a bark, and disabled her; the bark was driven on shore; held that the owners of the brig were liable for injury ensuing from the wreck of the bark to persons on board her.

[(e) ]1 Q. B. 29, 10 L. J. Q. B. 73 (1841); cp. Clark v. Chambers, 3 Q. B. D. at p. 331.

[(f) ]This case was relied on in Massachusetts in Powell v. Deveney (1849) 3 Cush. 300, where the defendant’s truck had, contrary to local regulations, been left out in the street for the night, the shafts being shored up and projecting into the road; a second truck was similarly placed on the opposite side of the road: the driver of a third truck, endeavouring with due caution, as it was found, to drive past through the narrowed fairway thus left, struck the shafts of the defendant’s truck, which whirled round and struck and injured the plaintiff, who was on the sidewalk. Held, the defendant was liable. If the case had been that the shafts of the truck remained on the sidewalk, and the plaintiff afterwards stumbled on them in the dark, it would be an almost exact parallel to Clark v. Chambers (3 Q. B. D. 327, 47 L. J. Q. B. 427; see below).

[(g) ]Cox v. Burbidge (1863) 13 C. B. N. S. 430, 32 L. J. C. P. 89.

[(h) ]Lee v. Riley (1865) 18 C. B. N. S. 722, 34 L. J. C. P. 212. Both decisions were unanimous, and two judges (Erle C. J. and Keating J.) took partin both. Cp. Ellis v. Loftus Iron Co., L. R. 10 C. P. 10, 44 L. J. C. P. 24.

[(i) ]3 App. Ca. 193, 47 L. J. C. P. 303 (1877). Cp. Cobb v. G. W. R. Co. ’93, 1 Q. B. 459, 62 L. J. Q. B. 335, 4 R. 283.

[(k) ]Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781, 25 L. J. Ex. 212. The question was not really of remoteness of damage, but whether there was any evidence of negligence at all; nevertheless the case is instructive for comparison with the others here cited. Cp. Mayne on Damages, Preface to the first edition.

[(l) ]L. R. 7 C. P. 253, 41 L. J. C. P. 95 (1872).

[(m) ]So the Court found, having power to draw inferences of fact.

[(n) ]Grove J.

[(o) ]Keating J.

[(p) ]Bovill C. J.

[(q) ]3 Q. B. D. 327, 47 L. J. Q. B. 427 (1878).

[(r) ]Cockburn C. J. and Manisty J. The point chiefly argued for the defendant seems to have been that the intervention of a third person’s act prevented him from being liable: a position which is clearly untenable (see Scott v. Shepherd); but the judgment is of wider scope.

[(s) ]3 Q. B. D. at p. 338.

[(t) ]Compare the cases on slander collected in the notes to Vicars v. Wilcocks, 2 Sm. L. C. Compare also, as to consequential liability for disregard of statutory provisions, Gorris v. Scott (1874) L. R. 9 Ex. 125, 43 L. J. Ex. 92.

[(tt) ]P. 37, above.

[(u) ]Victorian Railways Commissioners v. Coultas, 13 App. Ca. 222, 57 L. J. P. C. 69.

[(x) ]It is by no means clear that such was the intention or effect. See the report, 12 V. L. R. 895. The physical injuries were substantial enough, for they included a miscarriage (ibid.). Whether that was really due to the fright was eminently a question of fact, and this was not disputed or discussed.

[(y) ]This must be so unless we go back to the old Germanic method of a fixed scale of compensation. So, as regards the measure of damages when liability is not denied, the defendant has to take his chance of the person disabled being a workman, or a tradesman in a small way, or a physician with a large practice.

[(z) ]Dig. Cr. Law, note to art. 221; Hist. Cr. Law, iii. 5.

[(a) ]Cp. Mr. Beven’s criticism of this case, Principles of the Law of Negligence, 66—71. As he justly points out, it has never been questioned that an action may lie for damage done by an animal which has been frightened by the defendant’s negligent act: Manchester South Jn. R. Co. v. Fullarton (1863) 14 C. B. N. S. 54; Simkin v. L. & N. W. R. Co. (1888) 21 Q. B. Div. 453; 59 L. T. 797; Brown v. Eastern and Midlands R. Co. (1889) 22 Q. B. Div. 391; 58 L. J. Q. B. 212. The Exchequer Division in Ireland has refused to follow this doctrine of the Judicial Committee: Bell v. G. N. R. Co. (1890) 26 L. R. Ir. 428. So has the Supreme Court of New York in an almost identical case: Mitchell v. Rochester R. Co. (1893), see (New York) Univ. Law Rev. i. 10. And see Ames, Sel. Ca. on Torts, 15, 16.

[(a) ]Ulpian, in D. 9, 2, ad leg. Aquil. 5, § 2. Quaerimus, si furiosus damnum dederit, an legis Aquiliae actio sit? Et Pegasus negavit: quae enim in eo culpa sit, cum suae mentis non sit? Et hoc est verissimum. . . . Quod si impubes id fecerit, Labeo ait, quia furti tenetur, teneri et Aquilia eum; et hoc puto verum, si sit iam iniuriae capax.

[(b) ]33 & 34 Vict. c. 23, ss. 8, 30. Can he sue for an injunction? Or for a dissolution of marriage or judicial separation?

[(c) ]See De Wahl v. Braune (1856) 1 H. & N. 178, 25 L. J. Ex. 343 (alien enemy: the law must be the same of a convict).

[(d) ]8 T. R. 335, 4 R. R. 680, thus cited by Parke B., Fairhurst v. Liverpool Adelphi Loan Association (1854) 9 Ex. 422, 23 L. J. Ex. 163.

[(e) ]Johnson v. Pie, 1 Sid. 258, &c. See the report fully cited by Knight Bruce, V.-C. (1847) in Stikeman v. Dawson, 1 De G. & Sm. at p. 113; cp. the remarks at p. 110.

[(f) ]14 C. B. N. S. 45, 32 L. J. C. P. 189 (1863).

[(g) ]See per Willes J. If the bailment had been at will, the defendant’s act would have wholly determined the bailment, and under the old forms of pleading he would have been liable at the owner’s election in case or in trespass vi et armis. See Litt. s. 71.

[(h) ]Lemprière v. Lange (1879) 12 Ch. D. 675; and see other cases in the writer’s “Principles of Contract,” p. 74, 6th ed.

[(i) ]Fairhurst v. Liverpool Adelphi Loan Association (1854) 9 Ex. 422, 23 L. J. Ex. 163.

[(k) ]45 & 46 Vict. c. 75, s. 1. The right of action given by the statute applies to a cause of action which arose before it came into operation: Weldon v. Winslow (1884) 13 Q. B. Div. 784, 53 L. J. Q. B. 528. In such case the Statute of Limitation runs not from the committing of the wrong, but from the commencement of the Act: Lowe v. Fox (1885) 15 Q. B. Div. 667, 54 L. J. Q. B. 561.

[(l) ]Beasley v. Roney, ’91, 1 Q. B. 509, 60 L. J. Q. B. 408.

[(m) ]Sect. 12. A trespasser on the wife’s separate property cannot justify under the husband’s authority. Whether the husband himself could justify entering a house, his wife’s separate property, acquired as such before or since the Act, in which she is living apart, quaere: Weldon v. De Bathe (1884) 14 Q. B. Div. 339, 54 L. J. Q. B. 113.

[(n) ]Phillips v. Barnet (1876) 1 Q. B. Div. 436, 45 L. J. Q. B. 277.

[(o) ]Seroka v. Kattenburg (1886) 17 Q. B. Div. 177, 55 L. J. Q. B. 375.

[(p) ]Sect. 13, which expressly provides for ante-nuptial liabilities, is rather against the existence of such a right.

[(q) ]Johnson v. Pie, p. 50, supra (a dictum wider than the decision).

[(r) ]Wright v. Leonard (1861) 11 C. B. N. S. 258, 30 L. J. C. P. 365, by Erle C. J. and Byles J., against Willes J. and Williams J. The judgment of Willes J. seems to me conclusive.

[(s) ]Mayor of Manchester v. Williams, ’91, 1 Q. B. 94, 60 L. J. Q. B. 23.

[(t) ]The difficulty felt in earlier times was one purely of process; not that a corporation was metaphysically incapable of doing wrong, but that it was not physically amenable to capias or exigent: 22 Ass. 100, pl. 67, and other authorities collected by Serjeant Manning in the notes to Maund v. Monmouthshire Canal Co., 4 M. & G. 452. But it was decided in the case just cited (1842) that trespass, as earlier in Yarborough v. Bank of England (1812) 16 East 6, 14 R. R. 272, that trover, would lie against a corporation aggregate. In Massachusetts a corporation has been held liable for the publication of a libel: Fogg v. Boston and Lowell R. Co. (1889) 148 Mass. 513. And see per Lord Bramwell, 11 App. Ca. at p. 254.

[(u) ]Mersey Docks Trustees v. Gibbs (1864-6) L. R. 1 H. L. 93, 35 L. J. Ex. 225: see the very full and careful opinion of the judges delivered by Blackburn J., L. R. 1 H. L. pp. 102 sqq., in which the previous authorities are reviewed.

[(x) ]Reg. v. Williams (appeal from New Zealand) 9 App. Ca. 418.

[(y) ]L. R. 1 H. L. 107, 110.

[(z) ]Bowen and Fry L.JJ., Finlay v. Chirney (1888) 20 Q. B. Div. 494, 502, 57 L. J. Q. B. 247: see this judgment on the history of the maxim generally.

[(a) ]Bowker v. Evans (1885) 15 Q. B. Div. 565, 54 L. J. Q. B. 421.

[(b) ]I. iv. 12, de perpetuis et temporalibus actionibus, 1. Another difference in favour of the Roman law is that death of a party after litis contestatio did not abate the action in any case. It has been conjectured that personalis in the English maxim is nothing but a misreading of poenalis.

[(c) ]Newton C. J. in Year-Book 19 Hen. VI. 66, pl. 10 (ad 1440-41).

[(d) ]20 Q. B. Div. 503.

[(e) ]Chamberlain v. Williamson, 2 M. & S. at p. 414, 15 R. R. at p. 297.

[(f) ]Ticycross v. Grant (1878) 4 C. P. Div. 40, 48 L. J. C. P. 1.

[(g) ]Cp. Bentham, Traités de Législation, vol. ii. pt. 2, c. 10.

[(h) ]Osborn v. Gillett (1873) L. R. 8 Ex. 88, 42 L. J. Ex. 53, diss. Bramwell B.

[(i) ]Under Lord Campbell’s Act (infra) they may have a right of suit for the benefit of certain persons, not the estate as such.

[(k) ]E.g. Collen v. Wright, Ex. Ch. 8 E. & B. 647, 27 L. J. Q. B. 215 (agent’s implied warranty of authority—a doctrine introduced, by the way, for the very purpose of escaping the iniquitous effect of the maxim now in question, by getting a cause of action in contract which could be maintained against executors); Lumley v. Gye (1853) 2 E. & B. 216, 22 L. J. Q. B. 463, which we shall have to consider hereafter.

[(l) ]L. R. 8 Ex. at p. 90, arg.

[(m) ]The Roman lawyers, however, seem to have held a like view. “Liberum corpus nullam recipit aestimationem:” D. 9. 3, de his qui effud., 1, § 5; cf. h. t. 7, and D. 9. 1, si quadrupes, 3. See Grueber on the Lex Aquilia, p. 17. As to the law of Scotland, see L. Q. R. x. 182.

[(n) ]Cp. Mr. Horace Smith’s remarks on this case (Smith on Negligence, 2nd ed. 256).

[(o) ]See note to Pinchon’s case, 9 Co. Rep. 89 a, vol. v. p. 161 in ed. 1826.

[(p) ]Twycross v. Grant (1878) 4 C. P. Div. 40, 45, 48 L. J. C. P. 1; Hatchard v. Mège (1887) 18 Q. B. D. 771, 56 L. J. Q. B. 397; Oakey v. Dalton (1887) 35 Ch. D. 700, 56 L. J. Ch. 823.

[(q) ]Woodhouse v. Walker (1880) 5 Q. B. Div. 404, 49 L. J. Q. B. 609.

[(r) ]Pulling v. G. E. R. Co. (1882) 9 Q. B. D. 110, 51 L. J. Q. B. 453; cp. Leggott v. G. N. R. Co. (1876) 1 Q. B. D. 599, 45 L. J. Q. B. 557; the earlier case of Bradshaw v. Lancashire and Yorkshire R. Co. (1875) L. R. 10 C. P. 189, 44 L. J. C. P. 148, is doubted, but distinguished as being on an action of contract.

[(s) ]It appears to have been suggested by the law of Scotland, which already gave a remedy: see Campbell on Negligence, 20 (2nd edit.); and Blake v. Midland R. Co. (1852) 18 Q. B. 93, 21 L. J. Q. B. 233 (in argument for plaintiff).

[(t) ]“Parent” includes father and mother, grandfather and grandmother, stepfather and stepmother. “Child” includes son and daughter, grandson and granddaughter, stepson and stepdaughter: sect. 5. It does not include illegitimate children: Dickinson v. N. E. R. Co. (1863) 2 H. & C. 735, 33 L. J. Ex. 91. There is no reason to doubt that it includes an unborn child. See The George and Richard (1871) L. R. 3 A. & E. 466, which, however, is not of judicial authority on this point, for a few months later (Smith v. Brown (1871) L. R. 6 Q. B. 729) the Court of Queen’s Bench held in prohibition that the Court of Admiralty had no jurisdiction to entertain claims under Lord Campbell’s Act; and after some doubt this opinion has been confirmed by the House of Lords: Seward v. The Vera Cruz (1884) 10 App. Ca. 59, overruling The Franconia (1877) 2 P. D. 163.

[(u) ]Where a claim of this kind is satisfied by payment to executors without an action being brought, the Court will apportion the fund, in proceedings taken for that purpose in the Chancery Division, in like manner as a jury could have done: Bulmer v. Bulmer (1883) 25 Ch. D. 409.

[(x) ]Also, by sect. 2, “money paid into Court may be paid in one sum, without regard to its division into shares” (marginal note).

[(y) ]Erle C. J., Pym v. G. N. R. Co. (1863) Ex. Ch. 4 B. & S. at p. 406.

[(z) ]Pollock C. B. in Franklin v. S. E. R. Co. (1858) 3 H. & N. at p. 213.

[(a) ]Duckworth v. Johnson (1859) 4 H. & N. 653; 29 L. J. Ex. 25.

[(b) ]Blake v. Midland R. Co. (1852) 18 Q. B. 93, 21 L. J. Q. B. 233. In Scotland it is otherwise: 1 Macq. 752, n.

[(c) ]Franklin v. S. E. R. Co. (1858) 3 H. & N. 211.

[(d) ]Hetherington v. N. E. R. Co. (1882), 9 Q. B. D. 160, 51 L. J. Q. B. 495.

[(e) ]Dalton v. S. E. R. Co. (1858) 4 C. B. N. S. 296, 27 L. J. C. P. 227, closely following Franklin v. S. E. R. Co.

[(f) ]Pym v. G. N. R. Co. (1863) 4 B. & S. 396, 32 L. J. Q. B. 377. The deceased had settled real estate on his eldest son, to whom other estates also passed as heir-at-law. As to the measure of damages where the deceased has insured his own life for the direct benefit of the plaintiff, see Grand Trunk R. of Canada v. Jennings (1888) 13 App. Ca. 800, 58 L. J. P. C. 1.

[(g) ]18 Q. B. at p. 110.

[(h) ]Read v. G. E. R. Co. (1868) L. R. 3 Q. B. 555, 37 L. J. Q. B. 278.

[(i) ]Cooley on Torts (Chicago, 1880) 262 sqq.; Shearman & Redfield on Negligence, ss. 293 sqq. In Arkansas the doctrine of actio personalis, &c. appears to have been wholly abrogated by statute: ib. s. 295.

[(k) ]Hambly v. Trott, 1 Cowp. 375.

[(l) ]The technical rule was that executors could not be sued in respect of an act of their testator in his lifetime in any form of action in which the plea was not guilty: Hambly v. Trott, 1 Cowp. 375.

[(h) ]Phillips v. Homfray (1883) 24 Ch. Div. 439, 454, 52 L. J. Ch. 833. The authorities are fully examined in the judgment of Bowen and Cotton L.JJ. As to allowing interest in such cases, see Phillips v. Homfray, ’92, 1 Ch. 465, 61 L. J. Ch. 210, C. A.

[(i) ]3 & 4 Will. IV. c. 42, p. 60, above.

[(k) ]Kirk v. Todd (1882) 21 Ch. Div. 484, 52 L. J. Ch. 224.

[(l) ]Peek v. Gurney (1873) L. R. 6 H. L. at p. 392.

[(m) ]24 Ch. D. at p. 463.

[(n) ]Cullen v. Thomson’s Trustees and Kerr, 4 Macq. 424, 432. “For the contract of agency or service cannot impose any obligation on the agent or servant to commit or assist in the committing of fraud,” or any other wrong.

[(o) ]The distinction will be explained below.

[(p) ]See Hyams v. Webster (1868) Ex. Ch. L. R. 4 Q. B. 138, 38 L. J. Q. B. 21.

[(q) ]See Gray v. Pullen (1864) Ex. Ch. 5 B. & S. 970, 34 L. J. Q. B. 265.

[(r) ]De Grey C. J. in Barker v. Braham (1773) 2 W. Bl. 866, Bigelow, L. C. 235.

[(s) ]Ellis v. Sheffield Gas Consumers Co. (1853) 2 E. & B. 767, 23 L. J. Q. B. 42.

[(t) ]Wilson v. Tumman (1843) 6 M. & G. 236; and Serjeant Manning’s note, ib. 239.

[(u) ]Barwick v. English Joint Stock Bank (1867) Ex. Ch. L. R. 2 Ex. 259, 265, 36 L. J. Ex. 147. The point of the decision is that fraud is herein on the same footing as other wrongs: of which in due course.

[(x) ]Joseph Brown Q.C. in evidence before Select Committee on Employers’ Liability, 1876, p. 38; Brett L.J., 1877, p. 114.

[(y) ]Farwell v. Boston and Worcester Railroad Corporation (1842) 4 Met. 49, and Bigelow L. C. 688. The judgment is also reprinted in 3 Macq. 316. So, too, M. Sainctelette, a recent Continental writer on the subject, well says: “La responsabilité du fait d’autrui n’est pas une fiction inventée par la loi positive. C’est une exigence de l’ordre social:” De la Responsabilité et de la Garantie, p. 124. Paley (Mor. Phil. bk. 3, c. 11) found it difficult to refer the rule to any principle of natural justice.

[(z) ]Barton’s Hill Coal Co. v. Reid (1858) 3 Macq. 266, 283.

[(a) ]Tuberville v. Stampe (end of 17th century) 1 Ld. Raym. 264.

[(b) ]Crompton J., Sadler v. Henlock (1855) 4 E. & B. 570, 578, 24 L. J. Q. B. 138, 141.

[(c) ]Bramwell L. J., Emp. L. 1877, p. 58. An extra-judicial statement, but made on an occasion of importance by a great master of the common law.

[(d) ]Willes J., Murray v. Currie (1870) L. R. 6 C. P. 24, 27, 40 L. J. C. P. 26.

[(e) ]One comparatively early case, Bush v. Steinman, 1 B. & P. 404, disregards the rule; but that case has been repeatedly commented on with disapproval (see Reedie v. L. & N. W. R. Co. (1849), 4 Ex. 244, 20 L. J. Ex. 65), and is not now law. See the modern authorities well reviewed in Hillard v. Richardson (Sup. Court, Mass. 1855) 3 Gray 349; and in Bigelow L. C. Exactly the same distinction appears to be taken under the Code Napoléon in fixing the limits within which the very wide language of Art. 1384 is to be applied: Sainctelette, op. cit. 127.

[(f) ]Pendlebury v. Greenhalgh (1875) 1 Q. B. Div. 36, 45 L. J. Q. B. 3, differing from the view of the same facts taken by the Court of Queen’s Bench in Taylor v. Greenhalgh (1874) L. R. 9 Q. B. 487, 43 L. J. Q. B. 168.

[(g) ]Even if the driver was selected by himself: Quarman v. Burnett (1840) 6 M. & W. 499. So where a vessel is hired with its crew: Dalyell v. Tyrer (1858) 8 E. B. & E. 899, 28 L. J. Q. B. 52. So where a contractor finds horses and drivers to draw watering-carts for a municipal corporation, the driver of such a cart is not the servant of the corporation: Jones v. Corporation of Liverpool (1885) 14 Q. B. D. 890, 54 L. J. Q. B. 345; cp. Little v. Hackett (1886) 116 U.S. at pp. 371-3, 377.

[(h) ]McLaughlin v. Pryor (1842) 4 M. & G. 48.

[(i) ]Ib.; Burgess v. Gray (1845) 1 C. B. 578, 14 L. J. C. P. 184. It is difficult in either case to see proof of more than adoption or acquiescence. Cp. Jones v. Corporation of Liverpool (1885) 14 Q. B. D. at pp. 893-4, 54 L. J. Q. B. 345.

[(k) ]Murray v. Currie (1870) L. R. 6 C. P. 24, 40 L. J. C. P. 26. In this case the man was actually paid by the owner’s agent and his wages deducted in account with the stevedore, which of course makes no difference in principle. Cp. Wild v. Waygood, ’92, 1 Q. B. 783, 61 L. J. Q. B. 391, C. A.

[(l) ]Cameron v. Nystrom (J. C. from N. Z.), ’93, A. C. 308, 62 L. J. P. C. 85, 1 R. 362; cp. Union Steamship Co. v. Claridge, ’94, A. C. 185, 6 R. June, 39.

[(m) ]Rourke v. White Moss Colliery Co. (1877) 2 C. P. Div. 205, 46 L. J. C. P. 283. See also Donovan v. Laing, ’93, 1 Q. B. 629, 4 R. 317, 63 L. J. Q. B. 25, C. A.

[(n) ]Johnson v. Lindsay, ’91, A. C. 371, 65 L. T. 97.

[(o) ]See Maude and Pollock, Merchant Shipping, i. 158, 4th ed.

[(p) ]Merchant Shipping Act, 1854, s. 388; The Halley (1868) L. R. 2 P. C. at p. 201. And see Marsden on Collisions at Sea, 3rd ed. ch. 5. On the other hand there may be a statutory relation which does resemble that of master and servant for the purpose of creating a duty to the public: King v. London Improved Cab Co. (1889) 23 Q. B. Div. 281; Keen v. Henry, ’94, 1 Q. B. 292, 9 R. Feb. 164, C. A.

[(q) ]9 B. & C. 591 (1829).

[(r) ]Maule J., Mitchell v. Crassweller (1853) 13 C. B. 237, 22 L. J. C. P. 100.

[(s) ]Croft v. Alison (1821) 4 B. & A. 590.

[(t) ]Parke B., Joel v. Morison (1834) 6 C. & P. 503: a nisi prius case, but often cited with approval; see Burns v. Poulsom (1873) L. R. 8 C. P. at p. 567, 42 L. J. C. P. 302.

[(u) ]L. R. 3 C. P. 422 (1868).

[(x) ]Byles J. at p. 425.

[(y) ](1869) L. R. 4 Q. B. 476, 38 L. J. Q. B. 223. Mitchell v. Crassweller, cited on p. 77, was a very similar case.

[(z) ]Lush J. at p. 480. It was “an entirely new and independent journey, which had nothing at all to do with his employment:” Cockburn C. J. “Every step he drove was away from his duty:” Mellor J., ibid. But it could have made no difference if the accident had happened as he was coming back. See the next case.

[(a) ]Rayner v. Mitchell (1877) 2 C. P. D. 357.

[(b) ]Williams v. Jones (1865) Ex. Ch. 3 H. & C. 256, 602, 33 L. J. Ex. 297; diss. Mellor and Blackburn JJ.

[(c) ]R. S. (now Mr. Justice) Wright, Emp. L. 1876, p. 47.

[(d) ]Bayley v. Manchester, Sheffield, and Lincolnshire R. Co. (1872-3) L. R. 7 C. P. 415, 41 L. J. C. P. 278, in Ex. Ch. 8 C. P. 148, 42 L. J. C. P. 78.

[(e) ]Per Willes J., Bayley v. Manchester, Sheffield, and Lincolnshire R. Co., L. R. 7 C. P. 415, 41 L. J. C. P. 278.

[(f) ]7 H. & N. 355, 30 L. J. Ex. 189, 327, Ex. Ch. (1861).

[(g) ]Blackburn J., Moore v. Metrop. R. Co. (1872) L. R. 8 Q. B. 36, 39, 42 L. J. Q. B. 23.

[(h) ]Ib., following Goff v. G. N. R. Co. (1861) 3 E. & E. 672, 30 L. J. Q. B. 148.

[(i) ]Poulton v. L. & S. W. R. Co. (1867) L. R. 2 Q. B. 534, 36 L. J. Q. B. 294.

[(k) ]Edwards v. L. & N. W. R. Co. (1870) L. R. 5 C. P. 445, 39 L. J. C. P. 241; cp. Allen v. L. & S. W. R. Co. (1870) L. R. 6 Q. B. 65, 40 L. J. Q. B. 55.

[(l) ]Bank of New South Wales v. Owston (1879) (J. C.) 4 App. Ca. 270, 48 L. J. P. C. 25.

[(m) ]Bolingbroke v. Swindon Local Board (1874) L. R. 9 C. P. 575, 43 L. J. C. P. 575.

[(n) ]Abrahams v. Deakin, ’91, 1 Q. B. 516 (C. A.), 60 L. J. Q. B. 238.

[(o) ]See per Blackburn J., 1 H. & C. 543.

[(p) ]1 H. & C. 526, 32 L. J. Ex. 34 (1862). This and Seymour v. Greenwood (above) overrule anything to the contrary in M‘Manus v. Crickett, 1 East, 106, 5 R. R. 518.

[(q) ]Williams, Crompton, Willes, Byles, Blackburn JJ., diss. Wightman, J.

[(r) ]Willes J. 1 H. & C. at p. 539.

[(s) ]This particular difficulty is fallacious. It is in truth neither more nor less easy to think of a corporation as deceiving (or being deceived) than as having a consenting mind. In no case can a corporation be invested with either rights or duties except through natural persons who are its agents. Cp. British Mutual Banking Co. v. Charnwood Forest R. Co. (1887) 18 Q. B. Div. 714, 56 L. J. Q. B. 449.

[(t) ]It makes no difference if the fraud includes a forgery: Shaw v. Port Philip Gold Mining Co. (1884) 13 Q. B. D. 103.

[(u) ](1867) L. R. 2 Ex. at p. 265.

[(x) ]Mackay v. Commercial Bank of New Brunswick (1874) L. R. 5 P. C. 412, 43 L. J. P. C. 31; Swire v. Francis (1877) 3 App. Ca. 106, 47 L. J. P. C. 18.

[(y) ]Addie v. Western Bank of Scotland (1867) L. R. 1 Sc. & D. 145, dicta at pp. 158, 166, 167.

[(z) ]Houldsworth v. City of Glasgow Bank (1880) 5 App. Ca. 317.

[(a) ]Ib., Lord Selborne at p. 326, Lord Hatherley at p. 331; Lord Blackburn’s language at p. 339 is more cautious, perhaps for the very reason that he was a party to the decision of Barwick v. English Joint Stock Bank. Shortly, the shareholder is in this dilemma: while he is a member of the company, he is damnified by the alleged deceit, if at all, solely in that he is liable as a shareholder to contribute to the company’s debts: this liability being of the essence of a shareholder’s position, claiming compensation from the company for it involves him in a new liability to contribute to that compensation itself, which is an absurd circuity. But if his liability as a shareholder has ceased, he is no longer damnified. Therefore restitution only (by rescission of his contract), not compensation, is the shareholder’s remedy as against the company: though the fraudulent agent remains personally liable.

[(b) ]British Mutual Banking Co. v. Charnwood Forest R. Co. (1887) 18 Q. B. Div. 714, 56 L. J. Q. B. 449.

[(c) ]L. R. 1 H. L. 93 (1864-6).

[(d) ]Partnership Act, 1890, ss. 10—12. Cp. Blair v. Bromley, 2 Ph. 354, and Cleather v. Twisden (1883) 24 Ch. D. 731, with Harman v. Johnson, 2 E. & B. 61, 22 L. J. Q. B. 297.

[(e) ]Ex parte Eyre, 1 Ph. 227. See more illustrations in my “Digest of the Law of Partnership,” 5th ed. pp. 43—46.

[(f) ]I have discussed it in Appendix K. to “Principles of Contract,” 6th ed. p. 711. See now Maddison v. Alderson (1883) 8 App. Ca. at p. 473, 51 L. J. Q. B. 737.

[(g) ]3 M. & W. 1. All the case actually decided was that a master does not warrant to his servant the sufficiency and safety of a carriage in which he sends him out.

[(h) ]Farwell v. Boston and Worcester Railroad Corporation, 4 Met. 49.

[(i) ]Sir Francis Jeune in The Petrel, ’93, P. 320, 323, 1 R. 651, 653.

[(k) ]See Wilson v. Merry (1868) L. R. 1 Sc. & D. 326.

[(l) ]Erle C. J. in Tunney v. Midland R. Co. (1866) L. R. 1 C. P. at p. 296; Archibald J. used very similar language in Lovell v. Howell (1876) 1 C. P. D. at p. 167, 45 L. J. C. P. 387.

[(m) ]Shaw C. J., Farwell v. Boston, &c. Corporation, 4 Met. 49. M. Sainctelette of Brussels, and M. Sauzet of Lyons, whom he quotes (op. cit. p. 140), differ from the current view among French-speaking lawyers, and agree with Shaw C. J. and our Courts, in referring the whole matter to the contract between the master and servant; but they arrive at the widely different result of holding the master bound, as an implied term of the contract, to insure the servant against all accidents in the course of the service, and not due to the servant’s own fault or vis major.

[(n) ]Pollock C. B., Morgan v. Vale of Neath R. Co. (1865) Ex. Ch. L. R. 1 Q. B. 149, 155, 35 L. J. Q. B. 23.

[(o) ]See last note.

[(p) ]Thesiger L. J., Charles v. Taylor (1878) 3 C. P. Div. 492, 498.

[(q) ]Feltham v. England (1866) L. R. 2 Q. B. 33, 36 L. J. Q. B. 14; Wilson v. Merry (1868) L. R. 1 Sc. & D. 326: see per Lord Cairns at p. 333, and per Lord Colonsay at p. 345. The French word collaborateur, which does not mean “fellow-workman” at all, was at one time absurdly introduced into these cases, it is believed by Lord Brougham, and occurs as late as Wilson v. Merry.

[(r) ]Hedley v. Pinkney and Sons’ S. S. Co., ’92, 1 Q. B. 58, 61 L. J. Q. B. 179, C. A., affd. in H. L., ’94, A. C. 222, 6 R. Apr. 12.

[(s) ]According to some decisions, which seem on principle doubtful, he is bound only not to furnish means or resources which are to his own knowledge defective: Gallagher v. Piper (1864) 16 C. B. N. S. 669, 33 L. J. C. P. 329. And more lately it has been decided in the Court of Appeal that where a servant seeks to hold his master liable for injury caused by the dangerous condition of a building where he is employed, he must allege distinctly both that the master knew of the danger and that he, the servant, was ignorant of it: Griffiths v. London and St. Katharine Docks Co. (1884) 13 Q. B. Div. 259, 53 L. J. Q. B. 504. Cp. Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340.

[(t) ]Lord Cairns, as above: to same effect Lord Wensleydale, Weems v. Mathieson (1861) 4 Macq. at p. 227: “All that the master is bound to do is to provide machinery fit and proper for the work, and to take care to have it superintended by himself or his workmen in a fit and proper manner.” In Skipp v. E. C. R. Co. (1853) 9 Ex. 223, 23 L. J. Ex. 23, it was said that this duty does not extend to having a sufficient number of servants for the work: sed qu. The decision was partly on the ground that the plaintiff was in fact well acquainted with the risk and had never made any complaint.

[(u) ]Johnson v. Lindsay, ’91, A. C. 371, 65 L. T. 97, overruling Wiggett v. Fox, 11 Ex. 832, 25 L. J. Ex. 188. Cp. Cameron v. Nystrom (J. C.) ’93, A. C. 308, 62 L. J. P. C. 85, 1 R. 362, p. 75, above.

[(x) ]Potter v. Faulkner (1861) Ex. Ch. 1 B. & S. 800, 31 L. J. Q. B. 30, approving Degg v. Midland R. Co. (1857) 1 H. & N. 773, 26 L. J. Ex. 174.

[(y) ]Ashworth v. Stanwix (1861) 3 E. & E. 701, 30 L. J. Q. B. 183.

[(z) ]They are well collected by Mr. Horace Smith (Law of Negligence, pp. 73—76, 2nd ed.).

[(a) ]Further legislation has been expected and attempted, but hitherto (1894) without result.

[(b) ]Essays in Jurisprudence and Ethics (1882) ch. 5. See for very full information and discussion on the whole matter the evidence taken by the Select Committees of the House of Commons in 1876 and 1877 (Parl. Papers, H. C. 1876, 372; 1877, 285). And see the final Report of the Labour Commission, 1894, Part II. Appendix V. (Memorandum on Evidence relating to Employers’ Liability).

[(c) ]See Baltimore and Ohio R. R. Co. v. Baugh (1893) 149 U. S. 368.

[(d) ]Cooley on Torts, 560; Shearman and Redfield, ss. 86, 88, 102. And see Chicago M. & S. R. Co. v. Ross (1884) 112 U. S. 377. Also a stricter view than ours is taken of a master’s duty to disclose to his servant any non-apparent risks of the employment which are within his own knowledge: Wheeler v. Mason Manufacturing Co. (1883) 135 Mass. 294.

[(e) ]See Mr. McKinney’s Article in L. Q. R. vi. 189, April 1890, at p. 197.

[(f) ]Parl. Papers, Commercial, No. 21, 1886.

[(a) ]Justification seems to be the proper word when the harm suffered is inseparably incident to the performance of a legal duty or the exercise of a common right; excuse, when it is but an accident: but I do not know that the precise distinction is always possible to observe, or that anything turns on it.

[(b) ]History of the Criminal Law, ii. 61.

[(c) ]This includes a friendly alien living in “temporary allegiance” under the protection of English law: therefore an act of state in this sense cannot take place in England in time of peace.

[(d) ]Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 13 Moo. P. C. 22, 75.

[(e) ]See Doss v. Secretary of State for India in Council (1875) 19 Eq. 509, and the case last cited.

[(f) ](1847) 2 Ex. 167.

[(g) ]Vol. ii. p. 64.

[(h) ]Entick v. Carrington, 19 St. Tr. 1043.

[(i) ]Hill v. Bigge (1841) 3 Moo. P. C. 465; dissenting from Lord Mansfield’s dictum in Mostyn v. Fabrigas, Cowp. 172, that “locally during his government no civil or criminal action will lie against him;” though it may be that he is privileged from personal arrest where arrest would, by the local law, be part of the ordinary process.

[(j) ]Luby v. Wodehouse, 17 Ir. C. L. R. 618; Sullivan v. Spencer, Ir. R. 6 C. L. 173, following Tandy v. Westmoreland, 27 St. Tr. 1246. These cases go very far, for the Lord Lieutenant was not even called on to plead his privilege, but the Court stayed proceedings against him on motion. As to the effect of a local Act of indemnity, see Phillips v. Eyre (1870) Ex. Ch. L. R. 6 Q. B. 1.

[(k) ]Musgrave v. Chung Teeong Toy, ’91, A. C. 272, 60 L. J. P. C. 28.

[(l) ]Duke of Brunswick v. King of Hanover (1843-4) 6 Beav. 1, 57; affirmed in the House of Lords, 2 H. L. C. 1.

[(m) ]What if cattle belonging to a foreign ambassador were distrained damage feasant? It would seem he could not get them back without submitting to the jurisdiction.

[(n) ]The Parlement Belge (1880) 5 P. D. 197, 214.

[(o) ]I have not met with a distinct statement of this qualification in existing authorities, but it is evidently assumed by them, and is necessary for the preservation of every state’s sovereign rights within its own jurisdiction. Plainly the command of a foreign government would be no answer to an action for trespass to land, or for the arrest of an alleged offender against a foreign law, within the body of an English county.

[(p) ]Law of May 24, 1872. But the principle is ancient, and the old law is still cited on various points.

[(q) ]Scott v. Stansfield (1868) L. R. 3 Ex. 220, 37 L. J. Ex. 155, which confirms and sums up the effect of many previous decisions. The authorities were lately reviewed and confirmed by the C. A., Anderson v. Gorrie (1894), not yet reported.

[(r) ]28 & 29 Vict. c. 36, s. 16.

[(s) ]Willis v. Maclachlan (1876) 1 Ex. D. 376, 45 L. J. Q. B. 689.

[(t) ]Houlden v. Smith (1850) 14 Q. B. 841, 19 L. J. Q. B. 170.

[(u) ]Lowther v. Earl of Radnor (1806) 8 East 113, 118.

[(x) ]Calder v. Halket (1839) 3 Moo. P. C. 28, 78.

[(y) ]Kemp v. Neville (1861) 10 C. B. N. S. 523, 31 L. J. C. P. 158 (an action against the Vice-Chancellor of the University of Cambridge), and authorities there cited.

[(z) ]Fray v. Blackburn (1862) 3 B. & S. 576.

[(a) ]Scott v. Stansfield (1868) L. R. 3 Ex. 220, 37 L. J. Ex. 155.

[(b) ]31 Car. II. c. 2, s. 9.

[(c) ]13 Edw. I. (Stat. Westm. 2) c. 31, cf. Blackstone, iii. 372.

[(d) ]This may be collected from such authorities as Dawkins v. Lord Rokeby (1875) L. R. 7 H. L. 744, 45 L. J. Q. B. 8; Daukins v. Prince Edward of Saxe Weimar (1876) 1 Q. B. D. 499, 45 L. J. Q. B. 567, which however go to some extent on the doctrine of “privileged communications,” a doctrine wider in one sense, and more special in another sense, than the rule now in question. Partly, also, they deal with acts of authority not of a judicial kind, which will be mentioned presently.

[(e) ]Pappa v. Rose (1872) Ex. Ch. L. R. 7 C. P. 525, 41 L. J. C. P. 187 (broker authorized by sale note to decide on quality of goods); Tharsis Sulphur Co. v. Loftus (1872) L. R. 8 C. P. 1, 42 L. J. C. P. 6 (average adjuster nominated to ascertain proportion of loss as between ship and cargo); Stevenson v. Watson (1879) 4 C. P. D. 148, 48 L. J. C. P. 318 (architect nominated to certify what was due to contractor).

[(f) ]Cooley on Torts, Ch. 14.

[(g) ]The details of this subject belong to criminal law.

[(h) ]Mayor of London v. Cox (1867) L. R. 2 H. L. at p. 269 (in opinion of judges, per Willes J.). The law seems to be understood in the same way in the United States. Cooley on Torts, 459—462.

[(i) ]The case of The Marshalsea, 10 Co. Rep. 76 a; Clark v. Woods (1848) 2 Ex. 395, 17 L. J. M. C. 189.

[(k) ]24 Geo. II. c. 44, s. 6. (Action lies only if a demand in writing for perusal and copy of the warrant is refused or neglected for six days.)

[(l) ]56 & 57 Vict. c. 61. There are subsidiary but not unimportant provisions as to costs.

[(m) ]See Glasspoole v. Young (1829) 9 B. & C. 696; Balme v. Hutton Ex. Ch. (1833) 9 Bing. 471; Dunston v. Paterson (1857) 2 C. B. N. S. 495, 26 L. J. C. P. 267; and other authorities collected in Fisher’s Digest, ed. Mews, sub tit. Sheriff.

[(n) ]Johnstone v. Sutton (1786-7) Ex. Ch. 1 T. R. 510, 548; affirmed in H. L. ibid. 784, 1 Bro. P. C. 76, 1 R. R. 257. The Ex. Ch. thought the action did not lie, but the defendant was entitled to judgment even if it did. No reasons appear to have been given in the House of Lords.

[(o) ]See per Willes J. in Keighly v. Bell (1866) 4 F. & F. at p. 790. In time of war the protection may perhaps be more extensive. As to criminal responsibility in such cases, cf. Stephen, Dig. Cr. Law, art. 202, Hist. Cr. Law, i. 200—206.

[(p) ]Bradlaugh v. Gossett (1884) 12 Q. B. D. 271, 53 L. J. Q. B. 209. As to the limits of the privilege, see per Stephen J. at p. 283. As to the power of a colonial legislative assembly over its own members, see Barton v. Taylor (J. C. 1886) 11 App. Ca. 197, 55 L. J. P. C. 1.

[(q) ]See Allbutt v. General Council, &c. (1889) 23 Q. B. Div. 400, 58 L. J. Q. B. 606; Leeson v. General Council, &c. (1889) 43 Ch. Div. 366, 59 L. J. Ch. 233; Partridge v. General Council, &c. (1890) 25 Q. B. Div. 90, 59 L. J. Q. B. 475.

[(r) ]See Neate v. Denman (1874) 18 Eq. 127.

[(s) ]Inderwick v. Snell (1850) 2 Mac. & G. 216 (removal of a director of a company); Dawkins v. Antrobus (1881) 17 Ch. Div. 615 (expulsion of a member from a club); cf. 13 Ch. D. 352; Partridge v. General Council, &c., note (q) last page, although no notice was given, the council honestly thinking they had no option. In the case of a club an injunction will be granted only in respect of the member’s right of property, therefore where the club is proprietary the only remedy is in damages: Baird v. Wells (1890) 44 Ch. D. 661, 59 L. J. Ch. 673. As to objections against a member of a “domestic tribunal” on the ground of interest, Allinson v. General Council, &c., ’94, 1 Q. B. 750, 9 R. (March) 205, C. A.

[(t) ]Fisher v. Keane (1878) 11 Ch. D. 353, 49 L. J. Ch. 11 (a club case, no notice to the member); Labouchere v. Wharncliffe (1879) 13 Ch. D. 346 (the like, no sufficient inquiry or notice to the member, calling and proceedings of general meeting irregular); Dean v. Bennett (1870) 6 Ch. 489, 40 L. J. Ch. 452 (minister of Baptist chapel under deed of settlement, no sufficient notice of specific charges either to the minister or in calling special meeting).

[(u) ]Blisset v. Daniel (1853) 10 Ha. 493; Wood v. Woad (1874) L. R. 9 Ex. 190, 43 L. J. Ex. 190. Without an express power in the articles a partner cannot be expelled at all.

[(v) ]E. g. Dean v. Bennett, note (t) last page; Fisher v. Jackson, ’91, 2 Ch. 84, 60 L. J. Ch. 482 (power judicial); Hayman v. Governors of Rugby School (1874) 18 Eq. 28, 43 L. J. Ch. 834 (power absolute).

[(x) ]Tozer v. Child (1857) Ex. Ch. 7 E. & B. 377, 26 L. J. Q. B. 151, explaining Ashby v. White, Ld. Raym. 938, and in 1 Sm. L. C.; and see the special report of Holt’s judgment published in 1837 and referred to in Tozer v. Child. There is some difference of opinion in America, see Cooley on Torts, 413, 414.

[(y) ]6 & 7 Vict. c. 18, s. 82. As to presiding officers under the Ballot Act, 1872, Pickering v. James (1873) L. R. 8 C. P. 489, 42 L. J. C. P. 217; Ackers v. Howard (1886) 16 Q. B. D. 739, 55 L. J. Q. B. 273.

[(z) ]Blackstone, i. 452. See modern examples collected in Addison on Torts, 7th ed. p. 145. A schoolmaster’s delegated authority is not bounded by the walls of the school: Cleary v. Booth, ’93, 1 Q. B. 465, 62 L. J. M. C. 87, 5 R. 263.

[(a) ]The ancient right of a husband to beat his wife moderately (F. N. B. 80 F. 239 A.) was discredited by Blackstone (i. 445) and is not recognized at this day; but as a husband and wife cannot in any case sue one another for assault in a civil court, this does not concern us. As to imprisonment of a wife by a husband, Reg. v. Jackson, ’91, 1 Q. B. 671, 60 L. J. Q. B. 346, C. A.

[(b) ]Lord Stowell, The Agincourt (1824) 1 Hagg. 271, 274. This judgment is the classical authority on the subject. For further references see Maude and Pollock’s Merchant Shipping, 4th ed. i. 127.

[(c) ]Cf. Gaius (D. 50, 17, de div. reg. 55): “Nullus videtur dolo facere, qui suo iure utitur.”

[(d) ]Lord Blackburn, Geddis v. Proprietors of Bann Reservoir (1878) 3 App. Ca. at p. 455; Caledonian R. Co. v. Walker’s Trustees (1882) 7 App. Ca. at p. 293; Mersey Docks Trustees v. Gibbs (1864-6) L. R. 1 H. L. at p. 112.

[(e) ]Hammersmith R. Co. v. Brand (1869) L. R. 4 H. L. 171, 38 L. J. Q. B. 265; A.-G. v. Metropolitan R. Co., ’94, 1 Q. B. 384, 9 R. Sept. 252, C.A.

[(f) ]Hammersmith R. Co. v. Brand, last note, confirming and extending Rex v. Pease (1832) 4 B. & Ad. 30, where certain members and servants of the Stockton and Darlington Railway Company were indicted for a nuisance to persons using a high road near and parallel to the railway. Lord Bramwell must have forgotten this authority when he said in the Court of Appeal that Rex v. Pease was wrongly decided (5 Q. B. D. 601).

[(g) ]Vaughan v. Taff Vale R. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247. See below in Ch. XII. So of noise made by pumps in the authorized sinking of a shaft near a man’s land or house: Harrison v. Southwark and Vauxhall Water Co., ’91, 2 Ch. 409, 60 L. J. Ch. 630.

[(h) ]Cracknell v. Corporation of Thetford (1869) L. R. 4 C. P. 629, 38 L. J. C. P. 353, decided partly on the ground that the corporation were not even entitled to enter on land which did not belong to them to remove weeds, &c., for any purposes beyond those of the navigation. A rather similar case, but decided the other way in the last resort on the construction of the particular statute there in question, is Geddis v. Proprietors of Bann Reservoir, 3 App. Ca. 430. Cracknell’s case seems just on the line; cp. Biscoe v. G. E. R. Co. below.

[(i) ]Per Lord Truro, L. & N. W. R. Co. v. Bradley (1851) 3 Mac. & G. at p. 341.

[(k) ]Biscoe v. G. E. R. Co. (1873) 16 Eq. 636.

[(l) ]6 App. Ca. 203.

[(m) ]Metropolitan Asylum District v. Hill (1881) 6 App. Ca. 193; cp. Rapier v. London Tramways Co., ’93, 2 Ch. 588, 63 L. J. Ch. 36, 2 R. 448.

[(n) ]Attorney-General v. Gaslight and Coke Co. (1877) 7 Ch. D. 217, 221, 47 L. J. Ch. 534.

[(o) ]Rajmohun Bose v. East India R. Co. (High Court, Calcutta), 10 Ben. L. R. 241. Qu. whether this be consistent with the case next cited.

[(p) ]London and Brighton R. Co. v. Truman (1885) 11 App. Ca. 45, 55 L. J. Ch. 354, reversing the decision of the Court of Appeal, 29 Ch. Div. 89.

[(q) ]Gas Light and Coke Co. v. Vestry of St. Mary Abbott’s (1885) 15 Q. B. Div. 1, 54 L. J. Q. B. 414. The Court also relied, but only by way of confirmation, on certain special Acts dealing with the relations between the vestry and the company. See 15 Q. B. D. at p. 6.

[(r) ]Bowen L. J., 29 Ch. D. at p. 108.

[(s) ]See especially Lord Blackburn’s opinion in London and Brighton R. Co. v. Truman.

[(t) ]P. 32, above.

[(u) ]This, at any rate, is the view of modern juries; see Nichols v. Marsland (1875) L. R. 10 Ex. at p. 256, 46 L. J. Ex. 174; Holmes v. Mather, L. R. 10 Ex. at p. 262.

[(v) ]Trespass for assault by striking the plaintiff with a stick thrown by the defendant. Plea, not guilty. The jury were directed that, in the absence of evidence for what purpose the defendant threw the stick, they might conclude it was for a proper purpose, and the striking the plaintiff was a mere accident for which the defendant was not answerable: Alderson v. Waistell (1844) 1 C. & K. 358 (before Rolfe B.). This, if it could be accepted, would prove more than is here contended for. But it is evidently a rough and ready summing-up given without reference to the books.

[(x) ]Shaw C. J. would not concede even this in the leading Massachusetts case of Brown v. Kendall, 6 Cush. at p. 297.

[(y) ]See on the whole of this matter Mr. Justice Holmes’s chapter on “Trespass and Negligence,” and Mr. Wigmore’s articles in Harv. Law Rev. vii. 315, 383, 441, where materials are fully collected.

[(z) ]Heusler, Inst. des deutschen Privatrechts, ii. 263; Ll. Hen. Primi, c. 88 § 6. 90 § 11; see p. 129, below.

[(a) ]“Inpunitus est qui sine culpa et dolo malo casu quodam damnum committit.” Gai. 3. 211. Paulus indeed says (D. 9. 2, ad legem Aquiliam, 45, § 4), “Si defendendi mei causa lapidem in adversarium misero, sed non eum sed praetereuntem percussero, tenebor lege Aquilia; illum enim solum qui vim infert ferire conceditur.” But various explanations of this are possible. Perhaps it shows what kind of cases are referred to by the otherwise unexplained dictum of Ulpian in the preceding fragment, “in lege Aquilia et levissima culpa venit.” Paulus himself says there is no iniuria if the master of a slave, meaning to strike the slave, accidentally strikes a free man: D. 47. 10, de iniuriis, 4. According to the current English theory of the 16th—18th centuries an action on the case would not lie on such facts, but trespass vi et armis would.

[(b) ]15 Wall. 524 (1872).

[(c) ]The plaintiff’s proper remedy would have been against the consignor who despatched the explosive without informing the carriers of its nature. See Lyell v. Ganga Dai (1875) Indian Law Rep. 1 All. 60.

[(d) ]6 Cush. 292 (1850).

[(e) ]The consequence was involuntary or rather unintended, though the act itself was voluntary; and it was also unavoidable, i. e. not preventable by reasonable diligence.

[(f) ]Harvey v. Dunlap, Lalor 193, cited 15 Wall. 539; Morris v. Platt, 32 Conn. 75.

[(g) ]Cooley on Torts, 80.

[(h) ]2 Keyes 169 (1865).

[(i) ]It will be remembered that this was in the days of muzzle-loaders. A like accident, however, happened not many years ago at an Aldershot field day, fortunately without hurt to any one.

[(j) ]Erle C. J. obiter, in Potter v. Faulkner, 1 B. & S. at p. 805, 31 L. J. Q. B. 30; Dixon v. Bell, 5 M. & S. 198.

[(k) ]The reporter adds this significant note: “The Court did not pass upon the first branch of the case, discussed by the Chief Judge, as to the question of the general liability of the commanding officer.”

[(l) ]21 St. Tr. 1022 (ad 1783).

[(m) ]Would an indictment ever lie for simple trespass? I know not of any authority that it would, though the action of trespass originally had, and retained in form down to modern times, a public and penal character.

[(n) ]Maxims of the Law, Reg. 7, following the dictum of Rede J. in 21 Hen. VII. 28. We cite Bacon, not as a writer of authority, but as showing, like Erskine, the average legal mind of his time.

[(o) ]O. W. Holmes 103.

[(p) ]C. 88 § 6. “Si quis in ludo sagittandi vel alicuius exercitii iaculo vel huiusmodi casu aliquem occidat, reddat eum; legis enim est, qui inscienter peccat, scienter emendet.” C. 90 § 11 adds an English form of the maxim: “et qui brecht ungewealdes, bete gewealdes.”

[(q) ]6 Edw. IV. 7, pl. 18; O. W. Holmes 85; cf. 21 Hen VII. 27, pl. 5, a case of trespass to goods which does not really raise the question.

[(r) ]Hob. 134, ad 1616.

[(s) ]Dickeson v. Watson, Sir T. Jones 205, ad 1682. Lambert v. Bessey, T. Raym. 421, a case of false imprisonment in the same period, cites the foregoing authorities, and Raymond’s opinion certainly assumes the view that inevitable accident is no excuse even when the act is one of lawful self-defence. But then Raymond’s opinion is a dissenting one; s. c. nom. Bessey v. Olliott, T. Raym. 467; being given in the former place alone and without explanation, it has apparently been sometimes taken for the judgment of the Court. At most, therefore, his illustrations are evidence of the notions current at the time.

[(t) ]Underwood v. Hewson, 1 Strange 596, ad 1723 (defendant was uncocking a gun, plaintiff looking on). It looks very like contributory negligence, or at any rate voluntary exposure to the risk, on the plaintiff’s part. But the law of negligence was then quite undeveloped.

[(u) ]Scott v. Shepherd (1773) 2 W. Bl. 892, 3 Wils. 403.

[(x) ]3 East 593 (ad 1803), cp. Preface to 7 R. R. at p. vii.

[(y) ](1868) L. R. 3 H. L. at p. 341.

[(z) ]Sometimes the case of James v. Campbell (1832) 5 C. & P. 372, is cited in this connexion. But not only is it a Nisi Prius case with nothing particular to recommend it, but it is irrelevant. The facts there alleged were that A. in a quarrel with B. struck C. Nothing shows that A. would have been justified or excused in striking B. And if the blow he intended was not lawful it was clearly no excuse that he struck the wrong man (p. 29 above, and see R. v. Latimer (1886) 17 Q. B. D. 359, 55 L. J. M. C. 135).

[(a) ]Davis v. Saunders, 2 Chitty 639.

[(b) ]Gibbons v. Pepper, 1 Lord Raym. 38.

[(c) ]1 Bing. 213 (1823). The argument for the defendant seems to have been very well reasoned.

[(d) ]Hall v. Fearnley (1842) 3 Q. B. 919, 12 L. J. Q. B. 22. The line between this and Gibbons v. Pepper is rather fine.

[(e) ]L. R, 10 Ex. 261, 44 L. J. Ex. 176 (1875).

[(f) ]Bramwell B. at p. 267.

[(g) ]L. R. 1 Ex. at pp. 286, 287. But see per Lord Halsbury in Smith v. Baker, ’91, A. C. 325, 337, 60 L. J. Q. B. 683.

[(h) ]’91, 1 Q. B. 86, 60 L. J. Q. B. 52. This was a shooting case (a pellet glanced from a bough and wounded the plaintiff’s eye). A point might have been made for the plaintiff, but apparently was not, on the “extra-hazardous” character of fire-arms.

[(i) ]A.-G. v. Tomline (1880) 14 Ch. Div. 58, 49 L. J. Ch. 377, is a curious case, but does not make any real exception to this. It shows that (1) the Crown as owner of foreshore has duties for the protection of the land, though not enforceable duties; (2) those duties, where the Crown rights have become vested in a subject, are laid upon and may be enforced against that subject.

[(k) ]Ulpian wrote (D. 9. 1, si quadrupes, 1, § 3): “Pauperies est damnum sine iniuria facientis datum, nec enim potest animal iniuria fecisse, quod sensu caret.” This is in a very special context, and is far from warranting the use of “damnum sine iniuria” as a common formula. Being, however, adopted in the Institutes, 4, 9, pr. (with the unidiomatic variant “iniuriam fecisse”), it probably became, through Azo, the origin of the phrase now current. In Gaius 3. 211 (on the lex Aquilia) we read “Iniuria autem occidere intellegitur cuius dolo aut culpa id acciderit, nec ulla alia lege damnum quod sine iniuria datur reprehenditur.” This shows that “damnum sine iniuria dare” was a correct if not a common phrase: though it could never have for Gaius or Ulpian the wide meaning of “harm [of any kind] which gives no cause of action.” “Damnum sine iniuria” standing alone as a kind of compound noun, according to the modern use, is hardly good Latin.

[(l) ]Bracton says, fo. 221 a: “Si quis in fundo proprio construat aliquod molendinum, et sectam suam et aliorum vicinorum subtrahat vicino, facit vicino damnum et non iniuriam.” “Dampnum sine iniuria” occurs in 7 Ed. III. 65, pl. 67, “damnum absque iniuria” in 11 Hen. IV. 47, pl. 21 (see below).

[(m) ]Hil. 11 Hen. IV. 47, pl. 21 (ad 1410-11). In the course of argument the opinion is thrown out that the education of children is a spiritual matter, and therefore the right of appointing a schoolmaster cannot be tried by a temporal court. The plaintiff tried to set up a quasi franchise as holding an ancient office in the gift of the Prior of Lantone, near Gloucester (sic: probably Llanthony is meant).

[(n) ]22 Hen. VI. 14, pl. 23 (ad 1443). The school case is cited.

[(o) ]Mogul Steamship Co. v. McGregor (1889-91) 23 Q. B. Div. 598, affirmed in H. L., ’92, A. C. 25.

[(p) ]Bowen L. J., 23 Q. B. Div. at p. 615.

[(q) ]Fry L. J., ibid. at pp. 625, 626.

[(r) ]Lord Hannen, s. c. in H. L. ’92, A. C. at p. 59.

[(s) ]Per Cur., Ballacorkish Mining Co. v. Harrison (1873) L. R. 5 P. C. at p. 61, 43 L. J. P. C. 19.

[(t) ]12 M. & W. 324, 13 L. J. Ex. 289 (1843).

[(u) ]7 H. L. C. 349, 29 L. J. Ex. 81 (1859).

[(x) ]Cp., as to the distinction between the “natural user” of land and the maintenance of artificial works, Hurdman v. N. E. R. Co. (1878) 3 C. P. Div. at p. 174, 47 L. J. C. P. 368; and further as to the limits of “natural user,” Ballard v. Tomlinson (1885) 29 Ch. Div. 115, 54 L. J. Ch. 454.

[(y) ]Cooley on Torts 580.

[(z) ]Rogers v. Rajendro Dutt, 8 Moo. I. A. 103.

[(x) ]8 Moo. I. A. at p. 134.

[(y) ]See per Holt C. J. in Keeble v. Hiokeringill, 11 East at pp. 575, 576, 11 R. R. 274 n.

[(z) ]It is very difficult to say what “malice,” as a term of art, really means in any one of its generally similar but not identical uses; but I think the gloss here given is sufficiently correct for the matter in hand. At all events, the intention of causing disadvantage to the plaintiff as a competitor in business by acts in themselves lawful, and done in the course of that business, does not make such acts wrongful: Mogul Steamship Co. v. McGregor (1889) 23 Q. B. Div. 598, H. L., ’92, A. C. 25, 61 L. J. Q. B. 295.

[(a) ]7 H. L. C. at p. 388. But see per Fry L. J., 23 Q. B. Div. at p. 625, on the hypothetical case of “competition used as a mere engine of malice.”

[(b) ]See Sir W. Markby’s “Elements of Law,” s. 239.

[(bb) ]Corporation of Bradford v. Pickles, ’94, 3 Ch. 53 (North J)., where, although the plaintiff succeeded on the ground that the defendant had broken a statutory prohibition, the question of the defendant’s good faith was discussed and held immaterial, and the plaintiff lost half his costs. See at p. 71.

[(c) ]D. 39, 3, de aqua, 1, § 12 (Ulpian).

[(d) ]Bell’s Principles, 966 (referred to by Lord Wensleydale).

[(e) ]See Burgess v. Burgess (1853) 3 D. M. G. 896, 22 L. J. Ch. 675, a classical case; Du Boulay v. Du Boulay (1869) L. R. 2 P. C. 430, 38 L. J. P. C. 35; Day v. Brownrigg (1878) 10 Ch. Div. 294, 48 L. J. Ch. 173; Street v. Union Bank, &c. (1885) 30 Ch. D. 156, 55 L. J. Ch. 31. Cp. Montgomery v. Thompson, ’91, A. C. 217, 60 L. J. Ch. 757.

[(f) ]Jessel M. R., 10 Ch. Div. 304.

[(g) ]Unless we said that leave points to specific consent to an act, licence to general assent to the consequences of acts consented to: but such a distinction seems too fanciful.

[(h) ]See Addison on Torts, p. 384, 7th ed.; Cooley on Torts, 303, sqq.

[(i) ]Cp. Stephen, Digest of the Criminal Law, art. 204.

[(k) ]Commonwealth v. Collberg (1876) 119 Mass. 350, and 20 Am. Rep. 328, where authorities are collected. See also Reg. v. Coney (1882) 8 Q. B. D. 534, 538, 546, 549, 567, and next page.

[(l) ]Coleridge J. in Reg. v. Lewis (1844) 1 C. & K. at p. 421, cp. Buller N. P. 16. The passage there and elsewhere cited from Comberbach, apart from the slender authority of that reporter, is only a dictum. Buller’s own authority is really better.

[(m) ]Foster’s Crown Law, 260.

[(n) ]Foster, l. c. “Motive” is hardly the correct word, but the meaning is plain enough.

[(o) ]Cp. Pulton, De Pace Regis, 17 b. It might be a nice point whether the old English backswording (see “Tom Brown”) was lawful or not. And quaere of the old rules of Rugby football, which allowed deliberate kicking in some circumstances. Quaere, also, whether one monk might have lawfully licensed another to beat him by way of spiritual discipline. But anyhow he could not have sued, being civilly dead by his entering into religion.

[(p) ]8 Q. B. D. 534, 51 L. J. M. C. 66 (1882). For fuller collection and consideration of authorities, cp. Mr. Edward Manson’s note in L. Q. R. vi. 110.

[(q) ]8 Q. B. D. at p. 539. As to the limits of lawful boxing, see Reg. v. Orton (1878) 39 L. T. 293.

[(r) ]8 Q. B. D. at p. 549. Compare arts. 206, 208 of the learned judge’s “Digest of the Criminal Law.” The language of art. 208 follows the authorities, but I am not sure that it exactly hits the distinction.

[(s) ]Notwithstanding the doubt expressed by Hawkins J., 8 Q. B. D. at pp. 553, 554.

[(t) ]A rather curious illustration may be found in Davies v. Marshall (1861) 10 C. B. N. S. 697, 31 L. J. C. P. 61, where the so-called equitable plea and replication seems to have amounted to a common law plea of leave and licence and joinder of issue, or perhaps new assignment, thereon.

[(u) ]Illust. to s. 80. On the point of actual consent, cf. ss. 87 and 88.

[(x) ]3 B. & Ald. 304 (1820); cp. and dist. the later case of Bird v. Holbrook (1828) 4 Bing. 628. The argument that since the defendant could not have justified shooting a trespasser with his own hand, even after warning, he could not justify shooting him with a spring-gun, is weighed and found wanting, though perhaps it ought to have prevailed.

[(y) ]Per Bayley J. 3 B. & Ald. at p. 311, and Holroyd J. at p. 314.

[(z) ]Edin. Rev. xxxv. 123, 410 (reprinted in Sydney Smith’s works). Setting spring-guns, except by night in a dwelling house for the protection thereof, was made a criminal offence by 7 & 8 Geo. IV. c. 18, now repealed and substantially re-enacted (24 & 25 Vict. c. 95, s. 1, and c. 100, s. 31).

[(a) ]Holmes v. Mather (1875) L. R. 10 Ex. at p. 267; Rylands v. Fletcher (1866) L. R. 1 Ex. at p. 287.

[(b) ]Woodley v. Metr. Dist. R. Co. (1877) 2 Ex. Div. 384, 46 L. J. Ex. 521; Mellish and Baggallay L. JJ. diss.

[(c) ]Cp. Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340, and Lord Herschell’s judgment in Membery v. G. W. R. Co. (1889) 14 App. Ca. 179, 190.

[(d) ]Fry L. J. 18 Q. B. Div. at p. 701. And see Yarmouth v. France (1887) 19 Q. B. D. 647, 57 L. J. Q. B. 7.

[(e) ]Membery v. G. W. R. Co. note (c), last page. Lord Bramwell’s extra-judicial remarks cannot be supported: see per Lord Herschell, 14 App. Ca. at pp. 192, 193; and Smith v. Baker, note (i), p. 155.

[(f) ]Bowen L. J. in Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 694, 697, 56 L. J. Q. B. 340.

[(g) ]18 Q. B. Div. at p. 698.

[(h) ]Bowen L. J. 18 Q. B. Div. at p. 695.

[(i) ]Ibid. at p. 696; Lindley L.J. in Yarmouth v. France (1887) 19 Q. B. D. 647, 659, before judges of the C. A. sitting as a divisional Court.

[(k) ]Yarmouth v. France, last note; Thrussell v. Handyside (1888) 20 Q. B. D. 359, 57 L. J. Q. B. 347; Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683.

[(e) ]’91 A. C. 325.

[(f) ]Lord Herschell, ’91 A. C. at pp. 360, 362.

[(g) ]Lord Halsbury, ’91, A. C. at pp. 336—338.

[(h) ]Walsh v. Whiteley (1888) 21 Q. B. Div. 371, 57 L. J. Q. B. 586.

[(i) ]See Lord Morris’s remarks in Smith v. Baker, ’91, A. C. at p. 369. In Smith v. Baker itself, an appeal from a County Court, this point, not having been raised at the trial below, was not open on the appeal. It was nevertheless extra-judicially discussed, with considerable variety of opinion.

[(k) ]Cornish v. Accident Insurance Co. (1889) 23 Q. B. Div. 453, 58 L. J. Q. B. 591.

[(l) ]L. R. 10 Ex. at p. 267.

[(m) ]Lord Halsbury, ’91, A. C. at p. 337.

[(n) ]Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683; Thrussell v. Handyside (1888) 20 Q. B. D. 359, 57 L. J. Q. B. 347.

[(o) ]See Ges v. Metropolitan R. Co. (1873) Ex. Ch. L. R. 8 Q. B. 161, 42 L. J. Q. B. 105; Robson v. N. E. R. Co. (1875) L. R. 10 Q. B. at p. 274, 44 L. J. Q. B. 112; and per Bramwell L. J. (not referring to these authorities, and taking a somewhat different view), Lax v. Corporation of Darlington (1879) 5 Ex. D. at p. 35, 49 L. J. Ex. 105.

[(p) ]Dyer, 36 b. Cp. the opinion of Best C. J. in Dewey v. White (1827), M. & M. 56 (damage inevitably done to plaintiff’s house in throwing down chimneys ruined by fire, which were in danger of falling into the highway: a verdict for the defendants was acquiesced in).

[(q) ]Mouse’s case, 12 Co. Rep. 63, is only just worth citing as an illustration that no action lies.

[(r) ]Kingsmill J. 21 Hen. VII. 27, pl. 5; cp. Dyer, ubi supra. In 8 Ed. IV. 23, pl. 41, it is thought doubtful whether the justification should be by common law or by special custom.

[(s) ]Good will without real necessity would not do; there must be danger of total loss, and, it is said, without remedy for the owner against any person, per Rede C. J. 21 Hen. VII. 28, pl. 5; but if this be law, it must be limited to remedies against a trespasser, for it cannot be a trespass or a lawful act to save a man’s goods according as they are or are not insured. Cp. Y. B. 12 Hen. VIII. 2, where there is some curious discussion on the theory of trespass generally. A mere volunteer may not force his way into a house on fire already under the control of persons who are lawfully endeavouring to put down the fire, and are not manifestly insufficient for that purpose: Carter v. Thomas, ’93, 1 Q. B. 673, 5 R. 343 (judgment of Kennedy J.)

[(t) ]Cf. the Indian Penal Code,) s. 92, and the powers given to the London Fire Brigade by 28 & 29 Vict. c. 90, s. 12, which seem rather to assume a pre-existing right at common law.

[(u) ]See Kirk v. Gregory (1876) 1 Ex. D. 55, 59.

[(v) ]This is the term adopted in the Indian Penal Code.

[(w) ]Blackstone iii. 3; and see the opinion of all the justices of K. B., 21 Hen. VII. 39, pl. 50. There has been some doubt whether a master could justify on the ground of the defence of his servant. But the practice and the better opinion have always been otherwise. Before the Conquest it was understood that a lord might fight in defence of his men as well as they in his. Ll. Alf. c. 42, § 5.

[(x) ]See Stephen, Digest of Criminal Law, art. 200. Most of the authority on this subject is in the early treatises on Pleas of the Crown.

[(y) ]N. O. & N. E. R. R. Co. v. Jopes (1891) 142 U. S. 18.

[(z) ]Aldrich v. Wright (1873) 53 N. H. 398, 16 Am. Rep. 339. The decision was that the penalty of a statute ordaining a close time for minks did not apply to a man who shot on his own land, in the close season, minks which he reasonably thought were in pursuit of his geese. Compare Taylor app. Newman resp. (1863) 4 B. & S. 89, 32 L. J. M. C. 186.

[(a) ]7 Taunt. 489, the case of dog-spears, where the Court was equally divided (1817); Jordin v. Crump (1841) 8 M. & W. 782, where the Court took the view of Gibbs C. J. in the last case, on the ground that setting dog-spears was not in itself illegal. Notice, however, was pleaded.

[(b) ]Dicey, Law of the Constitution, 4th ed. 1893, appx. note (N), which see for fuller discussion.

[(c) ]Dicey, op. cit. 426.

[(d) ]2 W. Bl. 892.

[(e) ]Blackstone J. in his dissenting judgment, 2 W. Bl. at p. 895.

[(f) ]D. 9. 2, ad 1. Aquil. 45, § 4; supra, p. 124.

[(g) ]Whalley v. Lanc. and Yorkshire R. Co. (1884) 13 Q. B. Div. 131, 53 L. J. Q. B. 285, distinguishing the case of acts lawful in themselves which are done by way of precaution against an impending common danger.

[(h) ](1828) 4 Bing. 628. Cp. p. 151, above. The cause of action arose, and the trial took place, before the passing of the Act which made the setting of spring-guns unlawful.

[(i) ]Barnes v. Ward (1850) 9 C. B. 392, 19 L. J. C. P. 195.

[(k) ]P. 32, above.

[(l) ]Sutton v. Town of Wauwatosa (Wisconsin, 1871) Bigelow L. C. 711, and notes thereto, pp. 721-2; S. C. in Jer. Smith’s Cases on Torts, ii. 115, see note, ib.; Cooley on Torts, 156. And see White v. Lang, 128 Mass. 598; Bucher v. Cheshire R. R. Co., 125 U. S. 555.

[(m) ]Newcomb v. Boston Protective Depart. (1888), 146 Mass. 596, Jer. Smith, op. cit. ii. 123.

[(n) ]Maule J., Fivaz v. Nicholls (1846) 2 C. B. 501, 512.

[(a) ]Possession could be recovered, of course, in an action of ejectment. But this was an action of trespass in form only. In substance it took the place of the old real actions, and it is sometimes called a real action. Detinue was not only not a substantial exception, but hardly even a formal one, for the action was not really in tort.

[(b) ]I do not think any of the powers of the superior courts of common law to issue specific commands (e.g. mandamus) were applicable to the redress of purely private wrongs, though they might be available for a private person wronged by a breach of public duty. Under the Common Law Procedure Acts the superior courts of common law had limited powers of granting injunctions and administering equitable relief. These were found of little importance in practice, and there is now no reason for dwelling on them.

[(c) ]This is well noted in Cooley on Torts, 50.

[(d) ]Cp. Blackstone, Bk. iii. c. 1.

[(e) ]It is hardly needful to refer the reader for fuller illustration of the subject to so well known a work as “Mayne on Damages.”

[(f) ]P. 27, above.

[(g) ]The principle is familiar. See it stated, e.g. 5 Q. B. Div. 85.

[(h) ]See Metropolitan R. Co. v. Wright (1886) 11 App. Ca. 152, 55 L. J. Q. B. 401.

[(i) ]Phillips v. L. & S. W. R. Co. (1879) 5 Q. B. Div. 78, 49 L. J. Q. B. 233, where, on the facts shown, a verdict for 7000l. was set aside on the ground of the damages being insufficient.

[(j) ]Falvey v. Stanford (1874) L. R. 10 Q. B. 54, 44 L. J. Q. B. 7.

[(k) ]Maule J. 2 C. B. 499.

[(l) ]Under the various statutes as to costs which were in force before the Judicature Acts, 40s. was, subject to a few exceptions, the least amount of damages which carried costs without a special certificate from the judge. Frequently juries asked before giving their verdict what was the least sum that would carry costs: the general practice of the judges was to refuse this information.

[(m) ]Kelly v. Sherlock (1866) L. R. 1 Q. B. 686, 35 L. J. Q. B. 209, is a case of this kind where, notwithstanding that the libels sued for were very gross, the jury gave a farthing damages, and the Court, though not satisfied with the verdict, refused to disturb it.

[(n) ]Harrison v. Duke of Rutland, ’93, 1 Q. B. 142, 62 L. J. Q. B. 117, 4 R. 155, C. A.

[(o) ]By Maule J. (1846), in Beaumont v. Greathead, 2 C. B. 499. Under the present procedure costs are in the discretion of the Court; the costs of a cause tried by jury follow the event (without regard to amount of damages) unless the judge or the Court otherwise orders: Order LXV. r. 1, &c. The effect of the Judicature Acts and Rules of Court in abrogating the older statutes was settled in 1878 by Garnett v. Bradley, 3 App. Ca. 944, 48 L. J. Ex. 186. A sketch of the history of the subject is given in Lord Blackburn’s judgment, pp. 962 sqq.

[(p) ]2 Lord Raym. at p. 955.

[(q) ]Backhouse v. Bonomi (1861) 9 H. L. C. 503, 34 L. J. Q. B. 181; Darley Main Colliery Co. v. Mitchell (1886) 11 App. Ca. 127, 55 L. J. Q. B. 529.

[(r) ]Pontifex v. Bignold (1841) 3 Man. & G. 63, is sometimes quoted as if it were an authority that no actual damage is necessary to sustain an action of deceit. But careful examination will show that it is far from deciding this.

[(s) ]See more in Ch. VII. below.

[(t) ]A jury has been known to find a verdict for a greater sum than was claimed, and the judge to amend the statement of claim to enable himself to give judgment for that greater sum. But this is an extreme use of the power of the Court, justifiable only in an extraordinary case. “It will not do for Mr. Justice Kay, or for this Court, to exercise that unknown equity which is sometimes exercised by juries:” Cotton L. J., Dreyfus v. Peruvian Guano Co. (1889) 43 Ch. Div. 316, 327, 62 L. T. 518.

[(u) ]Whitham v. Kershaw (1885-6) 16 Q. B. Div. 613, 54 L. T. 124; cp. Rust v. Victoria Graving Dock Co. (1887) 36 Ch. Div. 113, 56 L. T. 216; Chifferiel v. Watson (1888) 40 Ch. D. 45, 58 L. J. Ch. 137 (compensation under conditions of sale).

[(v) ]See Mayne on Damages, 5th ed. c. 13.

[(x) ]See the summing-up of Field J. in Phillips v. L. & S. W. R. Co. (1879) 5 Q. B. Div. 78, 49 L. J. Q. B. 233, which was in the main approved by the Court of Appeal.

[(y) ]Huckle v. Money (1763) 2 Wils. 205, one of the branches of the great case of general warrants: the plaintiff was detained about six hours and civilly treated, “entertained with beef-steaks and beer,” but the jury was upheld in giving 300l. damages, because “it was a most daring public attack made upon the liberty of the subject.”

[(z) ]Merest v. Harvey (1814) 5 Taunt. 442, 15 R. R. 548: the defendant was drunk, and passing by the plaintiff’s land on which the plaintiff was shooting, insisted, with oaths and threats, on joining in the sport; a verdict passed for 500l., the full amount claimed, and it was laid down that juries ought to be allowed to punish insult by exemplary damages.

[(a) ]Tullidge v. Wade (1769) 3 Wils. 18: “Actions of this sort are brought for example’s sake.”

[(b) ]See Forsdike v. Stone (1868) L. R. 3 C. P. 607, 37 L. J. C. P. 301, where a verdict for 1s. was not disturbed, though the imputation was a gross one; cp. Kelly v. Sherlock, p. 170, note (m), above.

[(c) ]Per Denman C. J. in Ex. Ch., Rogers v. Spence, 13 M. & W. at p. 581, 15 L. J. Ex. 49.

[(d) ]Emblen v. Myers (1860) 6 H. & N. 54, 30 L. J. Ex. 71.

[(e) ]Wennhak v. Morgan (1888) 20 Q. B. D. 635, 57 L. J. Q. B. 241.

[(f) ]Pollock C. B. 6 H. & N. 58, 30 L. J. Ex. 72. Cp. per Bowen L. J. in Whitham v. Kershaw (1886) 16 Q. B. Div. at p. 618.

[(g) ]Bell v. Midland R. Co. (1861) 10 C. B. N. S. 287, 307, 30 L. J. C. P. 273, 281.

[(h) ]See, e.g., Berry v. Da Costa (1866) L. R. 1 C. P. 331, 35 L. J. C. P. 191; and the last chapter of the present work, ad fin.

[(i) ]Mayne on Damages, 119 (5th ed.).

[(k) ]Brunsden v. Humphrey (1884) 14 Q. B. Div. 141, 53 L. J. Q. B. 476, by Brett M. R. and Bowen L. J., diss. Lord Coleridge C. J. Cp. per Lord Bramwell, 11 App. Ca. at p. 144.

[(l) ]Liber homo suo nomine utilem Aquiliae habet actionem: directam enim non habet, quoniam dominus membrorum suorum nemo videtur: Ulpian, D. 9. 2, ad 1. Aquil. 13 pr.

[(m) ]Judicature Act, 1873, s. 25, sub-s. 8. Per Jessel M. R., Beddow v. Beddow (1878) 9 Ch. D. 89, 93, 47 L. J. Ch. 588; Quartz Hill &c. Co. v. Beall (1882) 20 Ch. Div. at p. 507.

[(n) ]Thorley’s Cattle Food Co. v. Massam (1880) 14 Ch. Div. 763; Thomas v. Williams, ib. 864.

[(o) ]Quartz Hill Consolidated Gold Mining Co. v. Beall (1882) 20 Ch. Div. 501, 51 L. J. Ch. 874; Collard v. Marshall, ’92, 1 Ch. 571, 61 L. J. Ch. 268.

[(p) ]Hermann Loog v. Bean (1884) 26 Ch. Div. 306, 53 L. J. Ch. 1128.

[(q) ]Bonnard v. Perryman, ’91, 2 Ch. 269, 60 L. J. Ch. 617, C. A.

[(r) ]Salomons v. Knight, ’91, 2 Ch. 294, 60 L. J. Ch. 743, C. A.

[(s) ]In Mogul Steamship Co. v. M‘Gregor, Gow & Co. (1885) 15 Q. B. D. 476, 54 L. J. Q. B. 540, the Court refused to grant an interlocutory injunction to restrain a course of conduct alleged to amount to a conspiracy of rival shipowners to drive the plaintiffs’ ships out of the China trade. The decision of the case on the merits is dealt with elsewhere.

[(t) ]Burrowes v. Lock (1805) 10 Ves. 470, 8 R. R. 33, 856; Slim v. Croucher (1860) 1 D. F. J. 518, 29 L. J. Ch. 273 (these cases are now cited only as historical illustration); Peek v. Gurney (1871-3) L. R. 13 Eq. 79, 6 H. L. 377, 43 L. J. Ch. 19. See under the head of Deceit, Ch. VIII. below.

[(u) ]Jones v. Gooday (1841) 8 M. & W. 146, 10 L. J. Ex. 275; Wigsell v. School for Indigent Blind (1882) 8 Q. B. D. 357, 51 L. J. Q. B. 330; Whitham v. Kershaw (1885-6) 16 Q. B. Div. 613. In an action for inducing the plaintiff by false statements to take shares in a company, it is said that the measure of damages is the difference between the sum paid for the shares and their real value (the market value may, of course, have been fictitious) at the date of allotment: Peek v. Derry (1887) 37 Ch. Div. 591, 57 L. J. Ch. 347.

[(v) ]Ross v. Rugge-Price (1876) 1 Ex. D. 269, 45 L. J. Ex. 777: but qu. whether this case can now be relied on; it was decided partly on the authority of Atkinson v. Newcastle Waterworks Co. (1871) L. R. 6 Ex. 404, afterwards reversed in the Court of Appeal (see below).

[(w) ]Couch v. Steel (1854) 3 E. & B. 402, 23 L. J. Q. B. 121.

[(w) ]Atkinson v. Newcastle Waterworks Co. (1877) 2 Ex. Div. 441, 46 L. J. Ex. 775. Cp. Stevens v. Jeacocke (1847) 11 Q. B. 731, 17 L. J. Q. B. 163, where it was held that the local Act regulating, under penalties, the pilchard fishery of St. Ives, Cornwall, did not create private rights enforceable by action; Vestry of St. Pancras v. Batterbury (1857) 2 C. B. N. S. 477, 26 L. J. C. P. 243, where a statutory provision for recovery by summary proceedings was held to exclude any right of action (here, however, no private damage was in question); and Vallance v. Falle (1884) 13 Q. B. D. 109, 53 L. J. Q. B. 459. See further, as to highways, Cowley v. Newmarket Local Board, ’92, A. C. 345, 67 L. T. 486; Thompson v. Mayor of Brighton, Oliver v. Local Board of Horsham, ’94, 1 Q. B. 332, 9 R. Feb. 173, C. A.

[(x) ]Gorris v. Scott (1874) L. R. 9 Ex. 125, 43 L. J. Ex. 92.

[(y) ]See per Pollock B., L. R. 9 Ex. at p. 131.

[(z) ]Blamires v. Lanc. and Yorkshire R. Co. (1873) Ex. Ch. L. R. 8 Ex. 283, 42 L. J. Ex. 182.

[(a) ]Page 67.

[(b) ]Brinsmead v. Harrison (1872) Ex. Ch. L. R. 7 C. P. 547, 41 L. J. C. P. 190, finally settled the point. It was formerly doubtful whether judgment without satisfaction was a bar. And in the United States it seems to be generally held that it is not: Cooley on Torts, 138, and see L. R. 7 C. P. 549.

[(c) ]Merryweather v. Nixan (1799) 8 T. R. 186, 16 R. R. 810, where the doctrine is too widely laid down.

[(d) ]Adamson v. Jarvis (1827) 4 Bing. at p. 73. This qualification of the supposed rule in Merryweather v. Nixan is strongly confirmed by the dicta, especially Lord Herschell’s, in Palmer v. Wick and Pulteneytown Steam Shipping Co., ’94, A. C. 318, 324, 6 R. Aug. 39. The actual decision was that no such rule exists in Scotland.

[(e) ]Betts v. Gibbins, 2 A. & E. 57.

[(f) ]Adamson v. Jarvis (1827) 4 Bing. 66, 72. The ground of the action for indemnity may be either deceit or warranty: see at p. 73.

[(g) ]Betts v. Gibbins (1834) 2 A. & E. 57. See too Collins v. Evans (1844) (Ex. Ch.) 5 Q. B. at p. 830, 13 L. J. Q. B. 180.

[(h) ]I am not sure that authority covers this. But I do not think an agent could claim indemnity for acts which a reasonable man in his place would know to be beyond the lawful power of the principal. See Indian Contract Act, s. 223. The peculiar statutory liability created by the Directors’ Liability Act, 1890, is qualified by a right to recover contribution in all cases, see s. 5.

[(i) ]It is settled that there is no rule to prevent the suing of a person who was not party or privy to the felony. Stolen goods, or their value, e. g. can be recovered from an innocent possessor who has not bought in market overt, whether the thief has been prosecuted or not: Marsh v. Keating (1834) 1 Bing. N. C. 198, 217; White v. Spettigue (1845) 13 M. & W. 603, 14 L. J. Ex. 99. In these cases indeed the cause of action is not the offence itself, but something else which is wrongful because an offence has been committed.

[(j) ]33 & 34 Vict. c. 23.

[(k) ]See the judgment of Baggallay L. J. in Ex parte Ball (1879) 10 Ch. Div. at p. 673. For the difficulties see per Bramwell L. J., ib. at p. 671.

[(l) ]Lush J., Wells v. Abrahams (1872) L. R. 7 Q. B. at p. 563.

[(m) ]Blackburn J. ibid.

[(n) ]Roope v. D’Avigdor (1883) 10 Q. B. D. 412, cp. Midland Insurance Co. v. Smith (1881) 6 Q. B. D. 561, 50 L. J. Q. B. 329.

[(o) ]Wells v. Abrahams (1872) L. R. 7 Q. B. 554, 41 L. J. Q. B. 306, dissenting from Wellock v. Constantine (1863) 2 H. & C. 146, 32 L. J. Ex. 285, a very indecisive case, but the nearest approach to an authority for the enforcement of the supposed rule in a court of common law.

[(p) ]Blackburn J., L. R. 7 Q. B. at p. 559. In a later Irish case, S. v. S. (1882) 16 Cox, 566, it was said that, in a proper case, the Court might stay the action of its own motion; and one member thought the case before them a proper one, but the majority did not.

[(q) ]Ex parte Ball (1879) 10 Ch. D. 667, 48 L. J. Bk. 57.

[(r) ]See the historical discussion in the judgment of Blackburn J. in Wells v. Abrahams, L. R. 7 Q. B. 560, sqq. And see per Maule J. in Ward v. Lloyd (1843) 7 Scott N. R. 499, 507, a case of alleged compounding of felony: “It would be a strong thing to say that every man is bound to prosecute all the felonies that come to his knowledge; and I do not know why it is the duty of the party who suffers by the felony to prosecute the felon, rather than that of any other person: on the contrary, it is a Christian duty to forgive one’s enemies; and I think he does a very humane and charitable and Christian-like thing in abstaining from prosecuting.”

[(s) ]1 Bing. N. C. 198, 217 (1834).

[(t) ]3 Mont. & A. 110 (1837).

[(u) ]The Halley (1868) L. R. 2 P. C. 193, 204, 37 L. J. Adm. 33; The M. Moxham (1876) 1 P. Div. 107.

[(x) ]Blad’s Case, Blad v. Bamfield (1673-4) in P. C. and Ch., 3 Swanst. 603-4, from Lord Nottingham’s MSS.; The M. Moxham 1 P. Div. 107.

[(y) ]Ex. Ch. L. R. 6 Q. B. 1, 40 L. J. Q. B. 28 (1870).

[(z) ]Scott v. Seymour (1862) Ex. Ch. 1 H. & C. 219, 32 L. J. Ex. 61.

[(a) ]Ib. per Wightman and Willes JJ.

[(b) ]Per Cur., The Halley, L. R. 2 P. C. at p. 202.

[(c) ]British South Africa Co. v. Companhia de Moçambique, ’93, A. C. 602, 6 R. 1.

[(d) ]4 T. R. 503, 2 R. R. 448 (1792: no action here for trespass to land in Canada): approved in British South Africa Co. v. Companhia de Moçambique, last page.

[(e) ]L. R. 2 P. C. 193, 37 L. J. Adm. 33 (1868).

[(f) ]3 Swanst. 603.

[(g) ]3 Swanst. 604.

[(h) ]2 Bing. N. C. 781 (1836).

[(i) ]Bell C. C. 220, 29 L. J. M. C. 97 (1860).

[(k) ]2 Bing. N. C. 202.

[(l) ]5 East 124, 1 Smith, 351, 7 R. R. 663.

[(m) ]Cooke’s Bankrupt Law, 487.

[(n) ]See the text of the statutes, Appendix C.

[(o) ]See Blake Odgers, Digest of Law of Libel, 2nd ed. 520.

[(p) ]Plaintiffs imprisoned or being beyond the seas had the same right by the statute of James I., but this was abrogated by 19 & 20 Vict. c. 97 (the Mercantile Law Amendment Act, 1856), s. 10. The existing law as to defendants beyond seas is the result of 4 & 5 Anne, c. 3 [al. 16], s. 19, as explained by 19 & 20 Vict. c. 97, s. 12. As to the retrospective effect of s. 10, see Pardo v. Bingham (1869) 4 Ch. 735, 39 L. J. Ch. 170.

[(q) ]See p. 52, above.

[(r) ]Cp. Borrows v. Ellison (1871) L. R. 6 Ex. 128, 40 L. J. Ex. 131 (on the Real Property Limitation Act, 3 & 4 Wm. IV. c. 27); but the language of the two statutes might be distinguished.

[(s) ]Backhouse v. Bonomi (1861) 9 H. L. C. 503, 34 L. J. Q. B. 181; Darley Main Colliery Co. v. Mitchell (1886) 11 App. Ca. 127, 55 L. J. Q. B. 529, affirming S.C. 14 Q. B. Div. 125. The same principle applies, of course, to special periods of limitation of actions against public bodies or officers: see Crumbie v. Wallsend Local Board, ’91, 1 Q. B. 503, 60 L. J. Q. B. 392.

[(u) ]Miller v. Dell, ’91, 1 Q. B. 468, 60 L. J. Q. B. 404, C. A.

[(x) ]11 & 12 Vict. c. 44, s. 8.

[(y) ]24 Geo. II. c. 44, s. 8.

[(z) ]Public Authorities Protection Act, 1893, 56 & 57 Vict. c. 61.

[(a) ]See 9 Q. B. Div. 68, per Brett L. J.

[(b) ]Gibbs v. Guild (1882) 9 Q. B. Div. 59, 51 L. J. Q. B. 313, which makes the equitable doctrine of general application without regard to the question whether before the Judicature Acts the Court of Chancery would or would not have had jurisdiction in the case.

[(c) ]Weldon v. Neal (1887) 19 Q. B. Div. 394, 56 L. J. Q. B. 621.