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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.

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.

Book II.

SPECIFIC WRONGS.

[(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.