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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 II.

SPECIFIC WRONGS.

CHAPTER VI.

PERSONAL WRONGS.

I.—

Assault and Battery.

Preliminary.Security for the person is among the first conditions of civilized life. The law therefore protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehension of any of these things. The application of unlawful force to another constitutes the wrong called battery: an action which puts another in instant fear of unlawful force, though no force be actually applied, is the wrong called assault. These wrongs are likewise indictable offences, and under modern statutes can be dealt with by magistrates in the way of summary jurisdiction, which is the kind of redress most in use. Most of the learning of assault and battery, considered as civil injuries, turns on the determination of the occasions and purposes by which the use of force is justified. The elementary notions are so well settled as to require little illustration.

What shall be said a battery. “The least touching of another in anger is a battery”(a) ; “for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it in any the slightest manner”(b) . It is immaterial not only whether the force applied be sufficient in degree to cause actual hurt, but whether it be of such a kind as is likely to cause it. Some interferences with the person which cause no bodily harm are beyond comparison more insulting and annoying than others which do cause it. Spitting in a man’s face is more offensive than a blow, and is as much a battery in law(c) . Again, it does not matter whether the force used is applied directly or indirectly, to the human body itself or to anything in contact with it; nor whether with the hand or anything held in it, or with a missile(d) .

What an assault. Battery includes assault, and though assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. No reason appears for maintaining the distinction of terms in our modern practice: and in the draft Criminal Code of 1879 “assault” is deliberately used in the larger popular sense. “An assault” (so runs the proposed definition) “is the act of intentionally applying force to the person of another directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat causes the other to believe(e) upon reasonable grounds that he has present ability to effect his purpose”(f) .

Examples of acts which amount to assaulting a man are the following: “Striking at him with or without a weapon, or presenting a gun at him at a distance to which the gun will carry, or pointing a pitchfork at him, standing within the reach of it, or holding up one’s fist at him, or drawing a sword and waving it in a menacing manner”(g) . The essence of the wrong is putting a man in present fear of violence, so that any act fitted to have that effect on a reasonable man may be an assault, though there is no real present ability to do the harm threatened. Thus it may be an assault to present an unloaded fire-arm(h) , or even, it is apprehended, anything that looks like a fire-arm. So if a man is advancing upon another with apparent intent to strike him, and is stopped by a third person before he is actually within striking distance, he has committed an assault(i) . Acts capable in themselves of being an assault may on the other hand be explained or qualified by words or circumstances contradicting what might otherwise be inferred from them. A man put his hand on his sword and said, “If it were not assize-time, I would not take such language from you;” this was no assault, because the words excluded an intention of actually striking(k) .

Excusable acts. Hostile or unlawful intention is necessary to constitute an indictable assault; and such touching, pushing, or the like as belongs to the ordinary conduct of life, and is free from the use of unnecessary force, is neither an offence nor wrong. “If two or more meet in a narrow passage, and without any violence or design of harm the one touches the other gentle, it will be no battery”(l) . The same rule holds of a crowd of people going into a theatre or the like(m) . Such accidents are treated as inevitable, and create no right of action even for nominal damages. In other cases an intentional touching is justified by the common usage of civil intercourse, as when a man gently lays his hand on another to attract attention. But the use of needless force for this purpose, though it does not seem to entail criminal liability where no actual hurt is done, probably makes the act civilly wrongful(n) .

Mere passive obstruction is not an assault, as where a man by standing in a doorway prevents another from coming in(o) .

Words cannot of themselves amount to an assault under any circumstances, though there is evidence of an earlier contrary opinion:

• “For Meade’s case proves, or my Report’s in fault,
• That singing can’t be reckoned an assault”(p) .

There is little direct authority on the point, but no doubt is possible as to the modern law.

Consent, or in the common phrase “leave and licence,” will justify many acts which would otherwise be assaults(q) , striking in sport for example; or even, if coupled with reasonable cause, wounding and other acts of a dangerous kind, as in the practice of surgery. But consent will not make acts lawful which are a breach of the peace, or otherwise criminal in themselves, or unwarrantably dangerous. To the authorities already cited(r) under the head of General Exceptions we may add Hawkins’ paragraph on the matter.

“It seems to be the better opinion that a man is in no danger of such a forfeiture [of recognizances for keeping the peace] from any hurt done to another by playing at cudgels, or such like sport, by consent, because the intent of the parties seems no way unlawful, but rather commendable, and tending mutually to promote activity and courage. Yet it is said that he who wounds another in fighting with naked swords does in strictness forfeit such a recognizance, because no consent can make so dangerous a diversion lawful”(s) .

It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect(t) . The same principles would no doubt be applied by courts of civil jurisdiction if necessary.

Self-defence. When one is wrongfully assaulted it is lawful to repel force by force (as also to use force in the defence of those whom one is bound to protect, or for keeping the peace), provided that no unnecessary violence be used. How much force, and of what kind, it is reasonable and proper to use in the circumstances must always be a question of fact, and as it is incapable of being concluded beforehand by authority, so we do not find any decisions which attempt a definition. We must be content to say that the resistance must “not exceed the bounds of mere defence and prevention”(u) , or that the force used in defence must be not more than “commensurate” with that which provoked it(v) . It is obvious, however, that the matter is of much graver importance in criminal than in civil law(w) .

Menace distinguished from assault. Menace without assault is in some cases actionable. But this is on the ground of its causing a certain special kind of damage; and then the person menaced need not be the person who suffers damage. In fact the old authorities are all, or nearly all, on intimidation of a man’s servants or tenants whereby he loses their service or dues. Therefore, though under the old forms of action this wrong was of the same genus with assault and battery, we shall find it more convenient to consider it under another head. Verbal threats of personal violence are not, as such, a ground of civil action at all. If a man is thereby put in reasonable bodily fear he has his remedy, but not a civil one, namely by security of the peace.

Summary proceedings when a bar to civil action. Where an assault is complained of before justices under 24 & 25 Vict. c. 100, and the complaint has been dismissed (after an actual hearing on the merits)(x) , either for want of proof, or on the ground that the assault or battery was “justified or so trifling as not to merit any punishment,” or the defendant has been convicted and paid the fine or suffered the sentence, as the case may be, no further proceedings either civil or criminal can be taken in respect of the same assault(y) .

II.—

False Imprisonment.

False imprisonment. Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The infliction of such restraint is the wrong of false imprisonment; which, though generally coupled with assault, is nevertheless a distinct wrong. Laying on of hands or other actual constraint of the body is not a necessary element; and, if “stone walls do not a prison make” for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. “Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets”(z) . And when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is(a) . The detainer, however, must be such as to limit the party’s freedom of motion in all directions. (It is not an imprisonment to obstruct a man’s passage in one direction only. “A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only; it may in itself be moveable or fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined.” Otherwise every obstruction of the exercise of a right of way may be treated as an imprisonment(b) . A man is not imprisoned who has an escape open to him(c) ; that is, we apprehend, a means of escape which a man of ordinary ability can use without peril of life or limb. The verge of a cliff, or the foot of an apparently impracticable wall of rock, would in law be a sufficient boundary, though peradventure not sufficient in fact to restrain an expert diver or mountaineer. So much as to what amounts to an imprisonment.

Justification of arrest and imprisonment. When an action for false imprisonment is brought and defended, the real question in dispute is mostly, though not always, whether the imprisonment was justified. One could not account for all possible justifications except by a full enumeration of all the causes for which one man may lawfully put constraint on the person of another: an undertaking not within our purpose in this work. We have considered, under the head of General Exceptions(d) , the principles on which persons acting in the exercise of special duties and authorities are entitled to absolute or qualified immunity. With regard to the lawfulness of arrest and imprisonment in particular, there are divers and somewhat minute distinctions between the powers of a peace-officer and those of a private citizen(e) : of which the chief is that an officer may without a warrant arrest on reasonable suspicion of felony, even though a felony has not in fact been committed, whereas a private person so arresting, or causing to be arrested, an alleged offender, must show not only that he had reasonable grounds of suspicion but that a felony had actually been committed(f) . The modern policeman is a statutory constable having all the powers which a constable has by the common law(g) , and special statutory powers for dealing with various particular offences(h) .

Who is answerable. Every one is answerable for specifically directing the arrest or imprisonment of another, as for any other act that he specifically commands or ratifies; and a superior officer who finds a person taken into custody by a constable under his orders, and then continues the custody, is liable to an action if the original arrest was unlawful(i) . Nor does it matter whether he acts in his own interest or another’s(j) . But one is not answerable for acts done upon his information or suggestion by an officer of the law, if they are done not as merely ministerial acts, but in the exercise of the officer’s proper authority or discretion. Rather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this sense discretionary, or ministerial only. The distinction between a servant and an “independent contractor”(k) with regard to the employer’s responsibility is in some measure analogous. A party who sets the law in motion without making its act his own is not necessarily free from liability. He may be liable for malicious prosecution (of which hereafter)(l) ; but he cannot be sued for false imprisonment, or in a court which has not jurisdiction over cases of malicious prosecution. “The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment”(m) . Where an officer has taken a supposed offender into custody of his own motion, a person who at his request signs the charge-sheet does not thereby make the act his own(n) , any more than one who certifies work done under a contract thereby makes the contractor his servant. But where an officer consents to take a person into custody only upon a charge being distinctly made by the complainant, and the charge-sheet signed by him, there the person signing the charge-sheet must answer for the imprisonment as well as the officer(o) .

Again, where a man is given into custody on a mistaken charge, and then brought before a magistrate who remands him, damages can be given against the prosecutor in an action for false imprisonment only for the trespass in arresting, not for the remand, which is the act of the magistrate(p) .

Reasonable and probable cause. What is reasonable cause of suspicion to justify arrest may be said, paradoxical as the statement looks, to be neither a question of law nor of fact, at any rate in the common sense of the terms. Not of fact, because it is for the judge and not for the jury(q) ; not of law, because “no definite rule can be laid down for the exercise of the judge’s judgment”(r) . It is a matter of judicial discretion such as is familiar enough in the classes of cases which are disposed of by a judge sitting alone; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury and the determination of the law to the judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority(s) . The truth seems to be that the question was formerly held to be one of law, and has for some time been tending to become one of fact, but the change has never been formally recognized. The only thing which can be certainly affirmed in general terms about the meaning of “reasonable cause” in this connexion is that on the one hand a belief honestly entertained is not of itself enough(t) ; on the other hand, a man is not bound to wait until he is in possession of such evidence as would be admissible and sufficient for prosecuting the offence to conviction, or even of the best evidence which he might obtain by further inquiry. “It does not follow that because it would be very reasonable to make further inquiry, it is not reasonable to act without doing so”(u) . It is obvious, also, that the existence or non-existence of reasonable cause must be judged, not by the event, but by the party’s means of knowledge at the time.

Although the judge ought not to leave the whole question of reasonable cause to the jury, there seems to be no objection to his asking the jury, as separate questions, whether the defendant acted on an honest belief, and whether he used reasonable care to inform himself of the facts(x) .

III.—

Injuries in Family Relations.

Protection of personal relations. Next to the sanctity of the person comes that of the personal relations constituting the family. Depriving a husband of the society of his wife, a parent of the companionship and confidence of his children, is not less a personal injury, though a less tangible one, than beating or imprisonment. The same may to some extent be said of the relation of master and servant, which in modern law is created by contract, but is still regarded for some purposes as belonging to the permanent organism of the family, and having the nature of status. It seems natural enough that an action should lie at the suit of the head of a household for enticing away a person who is under his lawful authority, be it wife, child, or servant; there may be difficulty in fixing the boundary where the sphere of domestic relations ends and that of pure contract begins, but that is a difficulty of degree. That the same rule should extend to any wrong done to a wife, child, or servant, and followed as a proximate consequence by loss of their society or service, is equally to be expected. Then, if seduction in its ordinary sense of physical and moral corruption is part of the wrong-doer’s conduct, it is quite in accordance with principles admitted in other parts of the law that this should be a recognized ground for awarding exemplary damages. It is equally plain that on general principle a daughter or servant can herself have no civil remedy against the seducer, though the parent or master may; no civil remedy, we say, for other remedies have existed and exist. She cannot complain of that which took place by her own consent. Any different rule would be an anomaly. Positive legislation might introduce it on grounds of moral expediency; the courts, which have the power and the duty of applying known principles to new cases, but cannot abrogate or modify the principles themselves, are unable to take any such step.

Historical accidents of the common law herein. There seems, in short, no reason why this class of wrongs should not be treated by the common law in a fairly simple and rational manner, and with results generally not much unlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cumbrous fictions. But as matter of history (and pretty modern history) the development of the law has been strangely halting and one-sided. Starting from the particular case of a hired servant, the authorities have dealt with other relations, not by openly treating them as analogous in principle, but by importing into them the fiction of actual service; with the result that in the class of cases most prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff’s right has come to be, not whether he has been injured as the head of a family, but whether he can make out a constructive “loss of service”(y) .

Trespass for taking away wife, &c. and per quod servitium amisit. The common law provided a remedy by writ of trespass for the actual taking away of a wife, servant, or heir, and perhaps younger child also(z) . An action of trespass also lay for wrongs done to the plaintiff’s wife or servant (not to a child as such), whereby he lost the society of the former or the services of the latter. The language of pleading was per quod consortium, or servitium amisit. Such a cause of action was quite distinct from that which the husband might acquire in right of the wife, or the servant in his own right. The trespass is one, but the remedies are “diversis respectibus”(a) . “If my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself for every small battery shall have an action; and the reason of this difference is that the master has not any damage by the personal beating of his servant, but by reason of a per quod, viz., per quod servitium, &c. amisit; so that the original act is not the cause of his action, but the consequent upon it, viz., the loss of his service, is the cause of his action; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action”(b) . The same rule applies to the beating or maltreatment of a man’s wife, provided it be “very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife”(c) .

“Criminal conversation.” Against an adulterer the husband had an action at common law, commonly known as an action of criminal conversation. In form it was generally trespass vi et armis, on the theory that “a wife is not, as regards her husband, a free agent or separate person”(d) , and therefore her consent was immaterial, and the husband might sue the adulterer as he might have sued any mere trespasser who beat, imprisoned, or carried away his wife against her will. Actions for criminal conversation were abolished in England on the Establishment of the Divorce Court in 1857, but damages can be claimed on the same principles in proceedings under the jurisdiction then instituted(e) .

In practice these actions were always or almost always instituted with a view to obtaining a divorce by private Act of Parliament; the rules of the House of Lords (in which alone such Bills were brought in) requiring the applicant to have obtained both the verdict of a jury in an action, and a sentence of separation a mensa et toro in the Ecclesiastical Court.

Enticing away servants. An action also lay for enticing away a servant (that is, procuring him or her to depart voluntarily from the master’s service), and also for knowingly harbouring a servant during breach of service; whether by the common law, or only after and by virtue of the Statute of Labourers(f) , is doubtful. Quite modern examples are not wanting(g) .

Much later the experiment was tried with success of a husband bringing a like action “against such as persuade and entice the wife to live separate from him without a sufficient cause”(h) .

Still later the action for enticing away a servant per quod servitium amisit, was turned to the purpose for which alone it may now be said to survive, that of punishing seducers; for the latitude allowed in estimating damages makes the proceeding in substance almost a penal one.

Actions for seduction in modern practice: proof or presumption of service. In this kind of action it is not necessary to prove the existence of a binding contract of service between the plaintiff and the person seduced or enticed away. The presence or absence of seduction in the common sense (whether the defendant “debauched the plaintiff’s daughter,” in the forensic phrase) makes no difference in this respect; it is not a necessary part of the cause of action, but only a circumstance of aggravation(i) . Whether that element be present or absent, proof of a de facto relation of service is enough; and any fraud whereby the servant is induced to absent himself or herself affords a ground of action, “when once the relation of master and servant at the time of the acts complained of is established”(k) .

This applies even to an actual contract of hiring made by the defendant with a female servant whom he has seduced, if it is found as a fact that the hiring was a merely colourable one, undertaken with a view to the seduction which followed(l) . And a de facto service is not the less recognized because a third party may have a paramount claim: a married woman living apart from her husband in her father’s house may be her father’s servant, even though that relation might be determined at the will of the husband(m) . Some evidence of such a relation there must be, but very little will serve. A grown-up daughter keeping a separate establishment cannot be deemed her father’s servant(n) ; nor can a daughter, whether of full age or not, who at the time of the seduction is actually another person’s servant, so that no part of her services is at her parents’ disposal(o) . On the other hand, the fact of a child living with a parent, or any other person in loco parentis, as a member of the family of which that person is the head, is deemed enough to support the inference “that the relation of master and servant, determinable at the will of either party, exists between them”(p) . And a daughter under age, returning home from service with another person which has been determined, may be deemed to have re-entered the service of her father(q) . “The right to the service is sufficient”(r) .

Partial attendance in the parents’ house is enough to constitute service, as where a daughter employed elsewhere in the daytime is without consulting her employer free to assist, and does assist, in the household when she comes home in the evening(s) .

Damages. Some loss of service, or possibility of service, must be shown as consequent on the seduction, since that is, in theory, the ground of action(t) ; but when that condition is once satisfied, the damages that may be given are by no means limited to an amount commensurate with the actual loss of service proved or inferred. The awarding of exemplary damages is indeed rather encouraged than otherwise(u) . It is immaterial whether the plaintiff be a parent or kinsman, or a stranger in blood who has adopted the person seduced(x) .

Services of young child. On the same principle or fiction of law a parent can sue in his own name for any injury done to a child living under his care and control, provided the child is old enough to be capable of rendering service; otherwise not, for “the gist of the action depends upon the capacity of the child to perform acts of service”(y) .

Capricious operation of the law. The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Serjeant Manning wrote more than forty years ago: “the quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers”(z) . All devices for obtaining what is virtually a new remedy by straining old forms and ideas beyond their original intention are liable to this kind of inconvenience. It has been truly said(a) that the enforcement of a substantially just claim “ought not to depend upon a mere fiction over which the courts possess no control.” We have already pointed out the bolder course which might have been taken without doing violence to any legal principle. Now it is too late to go back upon the cases, and legislation would also be difficult and troublesome, not so much from the nature of the subject in itself as from the variety of irrelevant matters that would probably be imported into any discussion of it at large.

Constructive service in early cases. It would be merely curious, and hardly profitable in any just proportion to the labour, to inquire how far the fiction of constructive service is borne out by the old law of the action for beating or carrying away a servant. Early in the 15th century we find a dictum that if a man serves me, and stays with me at his own will, I shall have an action for beating him, on the ground of the loss of his service(b) : but this is reported with a quaere. A generation later(c) we find Newton C. J. saying that a relation of service between father and son cannot be presumed: “for he may serve where it pleaseth him, and I cannot constrain him to serve without his good will:” this must apply only to a son of full age, but as to that case Newton’s opinion is express that some positive evidence of service, beyond living with the parent as a member of the household, is required to support an action. Unless the case of a daughter can be distinguished, the modern authorities do not agree with this. But the same Year Book bears them out (as noted by Willes J.)(d) in holding that a binding contract of service need not be shown. Indeed, it was better merely to allege the service as a fact (in servitio suo existentem cepit), for an action under the Statute of Labourers would not lie where there was a special contract varying from the retainer contemplated by the statute, and amounting to matter of covenant(e) .

Intimidation of servants and tenants. A similar cause of action, but not quite the same, was recognized by the medieval common law where a man’s servants or tenants at will(f) were compelled by force or menace to depart from their service or tenure. “There is another writ of trespass,” writes Fitzherbert, “against those who lie near the plaintiff’s house, and will not suffer his servants to go into the house, nor the servants who are in the house to come out thereof”(g) . Examples of this kind are not uncommon down to the sixteenth century or even later; we find in the pleadings considerable variety of circumstance, which may be taken as expansion or specification of the alia enormia regularly mentioned in the conclusion of the writ(h) .

In the early years of the eighteenth century the genius of Holt found the way to use this, together with other special classes of authorities, as a foundation for the broader principle that “he that hinders another in his trade or livelihood is liable to an action for so hindering him”(i) , subject, of course, to the exception that no wrong is done by pursuing one’s own trade or livelihood in the accustomed manner though loss to another may be the result(k) and even the intended result(l) . Historically both this principle and that of Lumley v. Gye(m) are developments of the old “per quod servitium amisit”; but in the modern law they depend on different and much wider reasons, and raise questions which are not technical but fundamental. We shall therefore deal with them not here but under another head.

CHAPTER VII.

DEFAMATION.

Civil and criminal jurisdiction distinguished.Reputation and honour are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself. Thus it is needful for the peace and well-being of a civilized commonwealth that the law should protect the reputation as well as the person of the citizen. In our law some kinds of defamation are the subject of criminal proceedings, as endangering public order, or being offensive to public decency or morality. We are not here concerned with libel as a criminal offence, but only with the civil wrong and the right to redress in a civil action: and we may therefore leave aside all questions exclusively proper to the criminal law and procedure, some of which are of great difficulty(a) .

Slander and libel distinguished. The wrong of defamation may be committed either by way of speech, or by way of writing or its equivalent. For this purpose it may be taken that significant gestures (as the finger-language of the deaf and dumb) are in the same case with audible words; and there is no doubt that drawing, printing, engraving, and every other use of permanent visible symbols to convey distinct ideas, are in the same case with writing. The term slander is appropriated to the former kind of utterances, libel to the latter(aa) . Using the terms “written” and “spoken” in an extended sense, to include the analogous cases just mentioned, we may say that slander is a spoken and libel is a written defamation. The law has made a great difference between the two. Libel is an offence as well as a wrong, but slander is a civil wrong only(b) . Written utterances are, in the absence of special ground of justification or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are actionable only when special damage can be proved to have been their proximate consequence, or when they convey imputations of certain kinds.

No branch of the law has been more fertile of litigation than this (whether plaintiffs be more moved by a keen sense of honour, or by the delight of carrying on personal controversies under the protection and with the solemnities of civil justice), nor has any been more perplexed with minute and barren distinctions. This latter remark applies especially to the law of slander; for the law of libel, as a civil cause of action, is indeed overgrown with a great mass of detail, but is in the main sufficiently rational. In a work like the present it is not possible to give more than an outline of the subject. Those who desire full information will find it in Mr. Blake Odgers’ excellent and exhaustive monograph(c) . We shall, as a rule, confine our authorities and illustrations to recent cases.

1.—

Slander.

When slander is actionable. Slander is an actionable wrong when special damage can be shown to have followed from the utterance of the words complained of, and also in the following cases:

Where the words impute a criminal offence.

Where they impute having a contagious disease which would cause the person having it to be excluded from society.

Where they convey a charge of unfitness, dishonesty, or incompetence in an office of profit, profession, or trade, in short, where they manifestly tend to prejudice a man in his calling.

Spoken words which afford a cause of action without proof of special damage are said to be actionable per se: the theory being that their tendency to injure the plaintiff’s reputation is so manifest that the law does not require evidence of their having actually injured it. There is much cause however to deem this and other like reasons given in our modern books mere afterthoughts, devised to justify the results of historical accident: a thing so common in current expositions of English law that we need not dwell upon this example of it(d) .

Meaning of “prima facie libellous.” No such distinctions exist in the case of libel: it is enough to make a written statement primâ facie libellous that it is injurious to the character or credit (domestic, public, or professional) of the person concerning whom it is uttered, or in any way tends to cause men to shun his society, or to bring him into hatred, contempt, or ridicule. When we call a statement prima facie libellous, we do not mean that the person making it is necessarily a wrongdoer, but that he will be so held unless the statement is found to be within some recognized ground of justification or excuse.

Such are the rules as to the actionable quality of words, if that be a correct expression. The authorities by which they are illustrated, and on which they ultimately rest, are to a great extent antiquated or trivial(e) ; the rules themselves are well settled in modern practice.

Special damage. Where “special damage” is the ground of action, we have to do with principles already considered in a former chapter(f) : namely, the damage must be in a legal sense the natural and probable result of the words complained of. It has been said that it must also be “the legal and natural consequence of the words spoken” in this sense, that if A. speaks words in disparagement of B. which are not actionable per se, by reason of which speech C. does something to B.’s disadvantage that is itself wrongful as against B. (such as dismissing B. from his service in breach of a subsisting contract), B. has no remedy against A., but only against C.(g) . But this doctrine is contrary to principle: the question is not whether C.’s act was lawful or unlawful, but whether it might have been in fact reasonably expected to result from the original act of A. And, though not directly overruled, it has been disapproved by so much and such weighty authority that we may say it is not law(h) . There is authority for the proposition that where spoken words, defamatory but not actionable in themselves, are followed by special damage, the cause of action is not the original speaking, but the damage itself(i) . This does not seem to affect the general test of liability. Either way the speaker will be liable if the damage is an intended or natural consequence of his words, otherwise not.

Repetition of spoken words. It is settled however that no cause of action is afforded by special damage arising merely from the voluntary repetition of spoken words by some hearer who was not under a legal or moral duty to repeat them. Such a consequence is deemed too remote(j) . But if the first speaker authorized the repetition of what he said, or (it seems) spoke to or in the hearing of some one who in the performance of a legal, official, or moral duty ought to repeat it, he will be liable for the consequences(k) .

Special damage involves a definite temporal loss. Losing the general good opinion of one’s neighbours, consortium vicinorum as the phrase goes, is not of itself special damage. A loss of some material advantage must be shown. Defamatory words not actionable per se were spoken of a member of a religious society who by reason thereof was excluded from membership: there was not any allegation or proof that such membership carried with it as of right any definite temporal advantage. It was held that no loss appeared beyond that of consortium vicinorum, and therefore there was no ground of action(l) . Yet the loss of consortium as between husband and wife is a special damage of which the law will take notice(m) , and so is the loss of the voluntary hospitality of friends, this last on the ground that a dinner in a friend’s house and at his expense is a thing of some temporal value(n) . Actual membership of a club is perhaps a thing of temporal value for this purpose, but the mere chance of being elected is not: so that an action will not lie for speaking disparaging words of a candidate for a club, by means whereof the majority of the club decline to alter the rules in a manner which would be favourable to his election. “The risk of temporal loss is not the same as temporal loss”(o) . Trouble of mind caused by defamatory words is not sufficient special damage, and illness consequent upon such trouble is too remote. “Bodily pain or suffering cannot be said to be the natural result in all persons”(p) .

Imputations of criminal offence. As to the several classes of spoken words that may be actionable without special damage: words sued on as imputing crime must amount to a charge of some offence which, if proved against the party to whom it is imputed, would expose him to imprisonment or other corporal penalty (not merely to a fine in the first instance, with possible imprisonment in default of payment)(q) . The offence need not be specified with legal precision, indeed it need not be specified at all if the words impute felony generally. But if particulars are given they must be legally consistent with the offence imputed. It is not actionable per se to say of a man that he stole the parish bell-ropes when he was churchwarden, for the legal property is vested in him ex officio(r) ; it might be otherwise to say that he fraudulently converted them to his own use. The practical inference seems to be that minute and copious vituperation is safer than terms of general reproach, such as “thief,” inasmuch as a layman who enters on details will probably make some impossible combination.

It is not a libel as against a corporation (though it may be as against individual members or officers) to charge the body as a whole with an offence which a corporate body cannot commit(s) .

Other charges of mere immorality not actionable. False accusation of immorality or disreputable conduct not punishable by a temporal court is at common law not actionable per se, however gross. The Slander of Women Act, 1891 (54 & 55 Vict. c. 51), has abolished the need of showing special damage in the case of “words . . . which impute unchastity or adultery to any woman or girl.” The courts might without violence have presumed that a man’s reputation for courage,Slander of Women Act. honour, and truthfulness, a woman’s for chastity and modest conduct, was something of which the loss would naturally lead to damage in any lawful walk of life. But the rule was otherwise(t) , and remains so as regards all slander of this kind against men, and against women also as regards all charges of improper conduct short of unchastity, which yet may sometimes be quite as vexatious, and more mischievous because more plausible. The law went wrong from the beginning in making the damage and not the insult the cause of action; and this seems the stranger when we have seen that with regard to assault a sounder principle is well established(u) .

A person who has committed a felony and been convicted may not be called a felon after he has undergone the sentence, and been discharged, for he is then no longer a felon in law(v) .

Imputations of contagious disease. Little need be said concerning imputations of contagious disease unfitting a person for society: that is, in the modern law, venereal disease(x) . The only notable point is that “charging another with having had a contagious disorder is not actionable; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the gist of the action fails; for such a charge cannot produce the effect which makes it the subject of an action, namely, his being avoided by society”(y) . There does not seem to be more than one reported English case of the kind within the present century(z) .

Evil-speaking of a man in the way of his business. Concerning words spoken of a man to his disparagement in his office, profession, or other business: they are actionable on the following conditions:—They must be spoken of him in relation to or “in the way of” a position which he holds, or a business he carries on, at the time of speaking. Whether they have reference to his office or business is, in case of doubt, a question of fact. And they must either amount to a direct charge of incompetence or unfitness, or impute something so inconsistent with competence or fitness that, if believed, it would tend to the loss of the party’s employment or business. To call a stonemason a “ringleader of the nine hours system” is not on the face of it against his competence or conduct as a workman, or a natural and probable cause why he should not get work; such words therefore, in default of anything showing more distinctly how they were connected with the plaintiff’s occupation, were held not to be actionable(a) . Spoken charges of habitual immoral conduct against a clergyman or a domestic servant are actionable, as naturally tending, if believed, to the party’s deprivation or other ecclesiastical censure in the one case, and dismissal in the other. Of a clerk or messenger, and even of a medical man, it is otherwise, unless the imputation is in some way specifically connected with his occupation. It is actionable to charge a barrister with being a dunce, or being ignorant of the law; but not a justice of the peace, for he need not be learned. It is actionable to charge a solicitor with cheating his clients, but not with cheating other people on occasions unconnected with his business(b) . But this must not be pressed too far, for it would seem to be actionable to charge a solicitor with anything for which he might be struck off the roll, and the power of the court to strike a solicitor off the roll is not confined to cases of professional misconduct(c) .

It makes no difference whether the office or profession carries with it any legal right to temporal profit, or in point of law is wholly or to some extent honorary, as in the case of a barrister or a fellow of the College of Physicians; but where there is no profit in fact, an oral charge of unfitness is not actionable unless, if true, it would be a ground for removal(d) . Nor does it matter what the nature of the employment is, provided it be lawful(e) ; or whether the conduct imputed is such as in itself the law will blame or not, provided it is inconsistent with the due fulfilment of what the party, in virtue of his employment or office, has undertaken. A gamekeeper may have an action against one who says of him, as gamekeeper, that he trapped foxes(f) . As regards the reputation of traders the law has taken a broader view than elsewhere. To impute insolvency to a tradesman, in any form whatever, is actionable. Substantial damages have been given by a jury, and allowed by the court, for a mere clerical error by which an advertisement of a dissolution of partnership was printed among a list of meetings under the Bankruptcy Act(g) . A trading corporation may be defamed in relation to the conduct of its business(h) .

Words indirectly causing damage to a man in his business. There are cases, though not common in our books, in which a man suffers loss in his business as the intended or “natural and probable result” of words spoken in relation to that business, but not against the man’s own character or conduct: as where a wife or servant dwelling at his place of business is charged with misbehaviour, and the credit of the business is thereby impaired: or where a statement is made about the business not in itself defamatory, but tending to a like result, such as that the firm has ceased to exist(i) . In such a case an action lies, but is not properly an action of slander, but rather a special action (on the case in the old system of pleading) “for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.” General loss of business is sufficient “special damage” to be a cause of action in such a case(k) .

2.—

Defamation in general.

Rules as to defamation generally. We now pass to the general law of defamation, which applies to both slander and libel, subject, as to slander, to the conditions and distinctions we have just gone through. Considerations of the same kind may affect the measure of damages for written defamation, though not the right of action itself.

“Implied malice.” It is commonly said that defamation to be actionable must be malicious, and the old form of pleading added “maliciously” to “falsely.” Whatever may have been the origin or the original meaning of this language(l) , malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse(m) ; and to say that the law implies malice from the publication of matter calculated to convey an actionable imputation is only to say in an artificial form that the person who so publishes is responsible for the natural consequences of his act(n) . “Express malice” means something different, of which hereafter.

What is publication. Evil-speaking, of whatever kind, is not actionable if communicated only to the person spoken of. The cause of action is not insult, but proved or presumed injury to reputation. Therefore there must be a communication by the speaker or writer to at least one third person; and this necessary element of the wrongful act is technically called publication. It need not amount to anything like publication in the common usage of the word. That an open message passes through the hands of a telegraph clerk(o) , or a manuscript through those of a compositor in a printing-office(p) , or a letter dictated by a principal is taken down in shorthand and type-written by a clerk(q) , is enough to constitute a publication to those persons if they are capable of understanding the matters so delivered to them. The opening of a letter addressed to a firm by a clerk of that firm authorized to open letters is a publication to him(q) . Every repetition of defamatory words is a new publication, and a distinct cause of action. The sale of a copy of a newspaper, published (in the popular sense) many years ago, to a person sent to the newspaper office by the plaintiff on purpose to buy it, is a fresh publication(r) . It appears on the whole that if the defendant has placed defamatory matter within a person’s reach, whether it is likely or not that he will attend to the meaning of it, this throws on the defendant the burden of proving that the paper was not read, or the words heard by that person; but if it is proved that the matter did not come to his knowledge, there is no publication(s) . A person who is an unconscious instrument in circulating libellous matter, not knowing or having reason to believe that the document he circulates contains any such matter, is free from liability if he proves his ignorance. Such is the case of a newsvendor, as distinguished from the publishers, printers, and owners of newspapers. “A newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury”(t) . If A is justified in making a disparaging communication about B.’s character to C. (as, under certain conditions, we shall see that he may be), it follows, upon the tendency and analogy of the authorities now before us, that this will be no excuse if, exchanging the envelopes of two letters by inadvertence, or the like, he does in fact communicate the matter to D. It has been held otherwise, but the decision was never generally accepted, and is now overruled(u) . In fact, as had been suggested in former editions of this book, it could not stand with the earlier authorities on “publication.”

Sending a defamatory letter to a wife about her husband is a publication: “man and wife are in the eye of the law, for many purposes, one person, and for many purposes”—of which this is one—“different persons”(x) .

Vicarious publication. On the general principles of liability, a man is deemed to publish that which is published by his authority. And the authority need not be to publish a particular form of words. A general request, or words intended and acted on as such, to take public notice of a matter, may make the speaker answerable for what is published in conformity to the general “sense and substance” of his request(y) .

A person who is generally responsible for publication (such as an editor), and who has admitted publication, is not as a rule bound to disclose the name of the actual author(z) .

Construction of words: innuendo. Supposing the authorship of the words complained of to be proved or admitted, many questions may remain.

The construction of words alleged to be libellous (we shall now use this term as equivalent to “defamatory,” unless the context requires us to advert to any distinction between libel and slander) is often a matter of doubt. In the first place the Court has to be satisfied that they are capable of the defamatory meaning ascribed to them. Whether they are so is a question of law(a) . If they are, and if there is some other meaning which they are also capable of, it is a question of fact which meaning they did convey under all the circumstances of the publication in question. An averment by the plaintiff that words not libellous in their ordinary meaning or without a special application were used with a specified libellous meaning or application is called an innuendo, from the old form of pleading. The old cases contain much minute, not to say frivolous, technicality; but the substance of the doctrine is now reduced to something like what is expressed above. The requirement of an innuendo, where the words are not on the face of them libellous, is not affected by the abolition of forms of pleading. It is a matter of substance, for a plaintiff who sues on words not in themselves libellous, and does not allege in his claim that they conveyed a libellous meaning, and show what that meaning was, has failed to show any cause of action(b) . Again, explanation is required if the words have not, for judicial purposes, any received ordinary meaning at all, as being foreign, provincial, or the like(c) . This however is not quite the same thing as an innuendo. A libel in a foreign language might need both a translation to show the ordinary meaning of the words, and a distinct further innuendo to show that they bore a special injurious meaning.

Libellous tendency must be probable in law and proved in fact. The actionable or innocent character of words depends not on the intention with which they were published, but on their actual meaning and tendency when published(d) . A man is bound to know the natural effect of the language he uses. But where the plaintiff seeks to put an actionable meaning on words by which it is not obviously conveyed, he must make out that the words are capable of that meaning (which is matter of law) and that they did convey it (which is matter of fact): so that he has to convince both the Court and the jury, and will lose his cause if he fail with either(e) . Words are not deemed capable of a particular meaning merely because it might by possibility be attached to them: there must be something in either the context or the circumstances that would suggest the alleged meaning to a reasonable mind(f) . In scholastic language, it is not enough that the terms should be “patient” of the injurious construction; they must not only suffer it, but be fairly capable of it. And it is left to the jury, within large limits, to find whether they do convey a serious imputation, or are mere rhetorical or jocular exaggeration(ff) .

Repetition and reports may be libellous. The publication is no less the speaker’s or writer’s own act, and none the less makes him answerable, because he only repeats what he has heard. Libel may consist in a fair report of statements which were actually made, and on an occasion which then and there justified the original speaker in making them(g) ; slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth(h) . “A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion,” and “as great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander”(i) . Circumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all.

From this principle it follows, as regards spoken words, that if A. speak of Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action against B., but not against A.(k) . As to the defendant’s belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Good faith occurs as a material legal element only when we come to the exceptions from the general law that a man utters defamatory matter at his own peril.

3.—

Exceptions.

Exceptions: fair comment. We now have to mention the conditions which exclude, if present, liability for words apparently injurious to reputation.

Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situation(l) ; and it is not correct to speak of utterances protected by it as being privileged. A man is no more privileged to make fair comments in public on the public conduct of others than to compete fairly with them in trade, or to build on his own land so as to darken their newly-made windows. There is not a cause of action with an excuse, but no cause of action at all. “The question is not whether the article is privileged, but whether it is a libel”(m) . This is settled by the leading case of Campbell v. Spottiswoode(n) , confirmed by the Court of Appeal in Merivale v. Carson(o) . On the other hand, the honesty of the critic’s belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand. Whatever goes beyond this, even if well meant, is libellous. The courts have, perhaps purposely, not fixed any standard of “fair criticism”(p) . One test very commonly applicable is the distinction between action and motive; public acts and performances may be freely censured as to their merits or probable consequences, but wicked or dishonest motives must not be imputed upon mere surmise. Such imputations, even if honestly made, are wrongful, unless there is in fact good cause for them. “Where a person has done or published anything which may fairly be said to have invited comment . . . . every one has a right to make a fair and proper comment; and as long as he keeps within that limit, what he writes is not a libel; but that is not a privilege at all. . . . Honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair comment; but it cannot in itself prevent the matter being libellous”(q) .

The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise, and it need not be here discussed(r) . On principle it seems that the motive is immaterial; for if the criticism be in itself justifiable, there is nothing to complain of, unless it can be said that comment proceeding from an indirect and dishonest intention to injure the plaintiff is not criticism at all(s) . Evidence tending to show the presence of improper motives might well also tend to show that the comment was not fair in itself, and thus be material on either view; as on the other hand to say of some kinds of criticism that there is no evidence of malice is practically equivalent to saying there is no evidence of the comment being otherwise than fair(t) .

What is open to comment, matter of law. What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition. Subject-matter of this kind may be broadly classed under two types.

The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs(u) , of those in authority, whether imperial or local(x) , in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like.

Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits.

Whether comment is fair, matter of fact (if libellous construction possible). What is actually fair criticism is a question of fact, provided the words are capable of being understood in a sense beyond the fair (that is, honest) expression of an unfavourable opinion, however strong, on that which the plaintiff has submitted to the public: this is only an application of the wider principle above stated as to the construction of a supposed libel(y) .

In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of the subject-matter. Courts of justice have not the means of applying so fine a test: and a right of criticism limited to experts would be no longer a common right but a privilege.

The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of misconduct(z) , or purporting to describe the actual contents of the work being criticised(a) .

Justification on ground of truth. Defamation is not actionable if the defendant shows that the defamatory matter was true; and if it was so, the purpose or motive with which it was published is irrelevant. For although in the current phrase the statement of matter “true in substance and in fact” is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth in season and out of season (indeed it may be a criminal offence), but because of the demerit attaching to the plaintiff if the imputation is true, whereby he is deemed to have no ground of complaint for the fact being communicated to his neighbours. It is not that uttering truth always carries its own justification, but that the law bars the other party of redress which he does not deserve. Thus the old rule is explained, that where truth is relied on for justification, it must be specially pleaded; the cause of action was confessed, but the special matter avoided the plaintiff’s right(b) . “The law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess”(c) . This defence, as authority and experience show, is not a favoured one. To adopt it is to forego the usual advantages of the defending party, and commit oneself to a counter-attack in which only complete success will be profitable, and failure will be disastrous.

Must be substantially complete. What the defendant has to prove is truth in substance, that is, he must show that the imputation made or repeated by him was true as a whole and in every material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not(d) . What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact(e) .

There may be a further question whether the matter alleged as justification is sufficient, if proved, to cover the whole cause of action arising on the words complained of; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed. It is a rule of law that one may not justify calling the editor of a journal a “felon editor” by showing that he was once convicted of felony. For a felon is one who has actually committed felony, and who has not ceased to be a felon by full endurance of the sentence of the law, or by a pardon; not a man erroneously convicted, or one who has been convicted and duly discharged. But it may be for a jury to say whether calling a man a “convicted felon” imputed the quality of felony generally, or only conveyed the fact that at some time he was convicted(f) . Where the libel charges a criminal offence with circumstances of moral aggravation, it is not a sufficient justification to aver the committing of the offence without those circumstances, though in law they may be irrelevant, or relevant only as evidence of some element or condition of the offence(g) . The limits of the authority which the Court will exercise over juries in handling questions of “mixed fact and law” must be admitted to be hard to define in this and other branches of the law of defamation.

Defendant’s belief immaterial. Apparently it would make no difference in law that the defendant had made a defamatory statement without any belief in its truth, if it turned out afterwards to have been true when made: as, conversely, it is certain that the most honest and even reasonable belief is of itself no justification. Costs, however, are now in the discretion of the Court.

Immunity of members of Parliament and judges. In order that public duties may be discharged without fear, unqualified protection is given to language used in the exercise of parliamentary and judicial functions. A member of Parliament cannot be lawfully molested outside Parliament by civil action, or otherwise, on account of anything said by him in his place in either House(h) . An action will not lie against a judge for any words used by him in his judicial capacity in a court of justice(i) . It is not open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith.

Other persons in judicial proceedings. Parties, advocates, and witnesses in a court of justice are under the like protection. They are subject to the authority of the Court itself, but whatever they say in the course of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner’s counsel to make insinuations against the prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be(k) ; nor for a witness after his cross-examination to volunteer a statement of opinion by way of vindicating his credit, which involves a criminal accusation against a person wholly unconnected with the case(l) . The only limitation is that the words must in some way have reference to the inquiry the Court is engaged in. A duly constituted military court of inquiry is for this purpose on the same footing as an ordinary court of justice(m) . So is a select committee of the House of Commons(n) . Statements coming within this rule are said to be “absolutely privileged.” The reason for precluding all discussion of their reasonableness or good faith before another tribunal is one of public policy, laid down to the same effect in all the authorities. The law does not seek to protect a dishonest witness or a reckless advocate, but deems this a less evil than exposing honest witnesses and advocates to vexatious actions.

Reports of officers, &c. As to reports made in the course of naval or military duty, but not with reference to any pending judicial proceeding, it is doubtful whether they come under this head or that of “qualified privilege.” A majority of the Court of Queen’s Bench has held (against a strong dissent), not exactly that they are “absolutely privileged,” but that an ordinary court of law will not determine questions of naval or military discipline and duty. But the decision is not received as conclusive(o) .

Qualified immunity of “privilege l communications.” There is an important class of cases in which a middle course is taken between the common rule of unqualified responsibility for one’s statements, and the exceptional rules which give, as we have just seen, absolute protection to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest expression of opinion concerning the character and merits of persons, to the extent appropriate to the nature of the occasion, but not necessary to prevent the person affected from showing, if he can, that an unfavourable opinion expressed concerning him is not honest. Occasions of this kind are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term “qualified privilege” is often used to mark the requirement of good faith in such cases, in contrast to the cases of “absolute privilege” above mentioned. Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will; and this although the matter reported was “absolutely privileged” as to the original utterance of it.

Conditions of the privilege. The conditions of immunity may be thus summed up:—

The occasion must be privileged; and if the defendant establishes this, he will not be liable unless the plaintiff can prove(p) that the communication was not honestly made for the purpose of discharging a legal, moral or social duty, or with a view to the just protection of some private interest or of the public good by giving information appearing proper to be given, but from some improper motive and without due regard to truth.

Such proof may consist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, “in excess of the occasion,” as we say.

“Express malice.” The rule formerly was, and still sometimes is, expressed in an artificial manner derived from the style of pleading at common law.

The law, it is said, presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing that the words were uttered on a privileged occasion; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. He need not prove malice in the first instance, because the law presumes it; when the presumption is removed, the field is still open to proof. But the “malice in law” which was said to be presumed is not the same as the “express malice” which is matter of proof. To have a lawful occasion and abuse it may be as bad as doing harm without any lawful occasion, or worse; but it is a different thing in substance. It is better to say that where there is a duty, though of imperfect obligation, or a right, though not answering to any legal duty, to communicate matter of a certain kind, a person acting on that occasion in discharge of the duty or exercise of the right incurs no liability, and the burden of proof is on those who allege that he was not so acting(q) .

What are privileged occasions. The occasions giving rise to privileged communications may be in matters of legal or social duty, as where a confidential report is made to an official superior, or in the common case of giving a character to a servant; or the communications may be in the way of self-defence, or the defence of an interest common to those between whom the words or writing pass; or they may be addressed to persons in public authority with a view to the exercise of their authority for the public good; they may also be matter published in the ordinary sense of the word for purposes of general information.

Moral or social duty. As to occasions of private duty; the result of the authorities appears to be that any state of facts making it right in the interests of society for one person to communicate to another what he believes or has heard regarding any person’s conduct or character will constitute a privileged occasion(r) .

Answers to confidential inquiries, or to any inquiries made in the course of affairs for a reasonable purpose, are clearly privileged. So are communications made by a person to one to whom it is his especial duty to give information by virtue of a standing relation between them, as by a solicitor to his client about the soundness of a security, by a father to his daughter of full age about the character and standing of a suitor, and the like. Statements made without request and apart from any special relation of confidence may or may not be privileged according to the circumstances; but it cannot be prudently assumed that they will be(s) . The nature of the interest for the sake of which the communication is made (as whether it be public or private, whether it is one touching the preservation of life, honour, or morals, or only matters of ordinary business), the apparent importance and urgency of the occasion, and other such points of discretion for which no general rule can be laid down, will all have their weight; how far any of them will outweigh the general presumption against officious interference must always be more or less doubtful(t) .

Self-protection. Examples of privileged communications in self-protection, or the protection of a common interest, are a warning given by a master to his servants not to associate with a former fellow-servant whom he has discharged on the ground of dishonesty(u) ; a letter from a creditor of a firm in liquidation to another of the creditors, conveying information and warning as to the conduct of a member of the debtor firm in its affairs(x) . The privilege of an occasion of legitimate self-interest extends to a solicitor writing as an interested party’s solicitor in the ordinary course of his duty(y) . The holder of a public office, when an attack is publicly made on his official conduct, may defend himself with the like publicity(z) .

Information for public good. Communications addressed in good faith to persons in a public position for the purpose of giving them information to be used for the redress of grievances, the punishment of crime, or the security of public morals, are in like manner privileged, provided the subject-matter is within the competence of the person addressed(a) . The communication to an incumbent of reports affecting the character of his curate is privileged, at all events if made by a neighbour or parishioner; so are consultations between the clergy of the immediate neighbourhood arising out of the same matter(b) .

Fair reports. Fair reports (as distinguished from comment) are a distinct class of publications enjoying the protection of “qualified privilege” to the extent to be mentioned. The fact that imputations have been made on a privileged occasion will, of course, not exempt from liability a person who repeats them on an occasion not privileged. Even if the original statement be made with circumstances of publicity, and be of the kind known as “absolutely privileged,” it cannot be stated as a general rule that republication is justifiable. Certain specific immunities have been ordained by modern decisions and statutes. They rest on particular grounds, and are not to be extended(c) . Matter not coming under any of them must stand on its own merits, if it can, as a fair comment on a subject of public interest.

Parliamentary papers. By statute (3 & 4 Vict. c. 9, ad 1840) the publication of any reports, papers, votes, or proceedings of either House of Parliament by the order or under the authority of that House is absolutely protected, and so is the republication in full. Extracts and abstracts are protected if in the opinion of the jury they were published bona fide and without malice(d) .

Parliamentary debates and judicial proceedings. Fair reports of parliamentary and public judicial proceedings are treated as privileged communications. It has long been settled(e) that fair and substantially accurate reports of proceedings in courts of justice are on this footing. As late as 1868 it was decided(f) that the same measure of immunity extends to reports of parliamentary debates, notwithstanding that proceedings in Parliament are technically not public, and, still later, that it extends to fair reports of the quasi-judicial proceedings of a body established for public purposes, and invested with quasi-judicial authority for effecting those purposes(g) . In the case of judicial proceedings it is immaterial whether they are preliminary or final (provided that they are such as will lead to some final decision)(h) and whether contested or ex parte(h) , and also whether the Court actually has jurisdiction or not, provided that it is acting in an apparently regular manner(i) . The report need not be a report of the whole proceedings, provided it gives a fair and substantially complete account of the case: but whether it does give such an account has been thought to be a pure question of fact, even if the part which is separately reported be a judgment purporting to state the facts(k) . The report must not in any case be partial to the extent of misrepresenting the judgment(l) . It may be libellous to publish even a correct extract from a register of judgments in such a way as to suggest that a judgment is outstanding when it is in fact satisfied(m) ; but a correct copy of a document open to the public is not libellous without some such further defamatory addition(n) . By statute “a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority” is, “if published contemporaneously with such proceedings,” privileged: which seems to mean absolutely privileged, as otherwise the statute would not add to the protection already given by the common law(o) . The rule does not extend to justify the reproduction of matter in itself obscene, or otherwise unfit for general publication(p) , or of proceedings of which the publication is forbidden by the Court in which they took place. The burden of proof is on the defendant to show that the report is fair and accurate. But if it really is so, the plaintiff’s own evidence will often prove that the facts happened as reported(q) .

Volunteered reports. An ordinary newspaper report furnished by a regular reporter is all but conclusively presumed, if in fact fair and substantially correct, to have been published in good faith; but an outsider who sends to a public print even a fair report of judicial proceedings containing personal imputations invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility; if the latter is found to be the fact, he is liable to an action(r) .

Newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary commissions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888(s) . A public meeting is for this purpose “any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted.” The defendant must not have refused on request to insert in the same newspaper a reasonable contradiction or explanation. Moreover “the publication of any matter not of public concern, and the publication of which is not for the public benefit,” is not protected(t) .

Excess of privilege. In the case of privileged communications of a confidential kind, the failure to use ordinary means of ensuring privacy—as if the matter is sent on a post-card instead of in a sealed letter, or telegraphed without evident necessity—will destroy the privilege; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one(u) . But the privilege of a person making a statement as matter of public duty at a meeting of a public body is not affected by unprivileged persons being present who are not there at his individual request or desire, or in any way under his individual control, though they may not have any strict right to be there, newspaper reporters for example(x) . It is now decided that if a communication intended to be made on a privileged occasion is by the sender’s ignorance (as by making it to persons whom he thinks to have some duty or interest in the matter, but who have none), or mere negligence (as by putting letters in wrong envelopes) delivered to a person who is a stranger to that occasion, the sender has not any benefit of privilege(y) .

Honest belief is not necessarily reasonable belief. Where the existence of a privileged occasion is established, we have seen that the plaintiff must give affirmative proof of malice, that is, dishonest or reckless ill-will(z) , in order to succeed. It is not for the defendant to prove that his belief was founded on reasonable grounds, and there is no difference in this respect between different kinds of privileged communication(a) . To constitute malice there must be something more than the absence of reasonable ground for belief in the matter communicated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous; or it may be proper for him to communicate reports or suspicions which he himself does not believe. In either case he is within the protection of the rule(b) . It has been found difficult to impress this distinction upon juries, and the involved language of the authorities about “implied” and “express” malice has, no doubt, added to the difficulty. The result is that the power of the Court to withhold a case from the jury on the ground of a total want of evidence has on this point been carried very far(c) . In theory, however, the relation of the Court to the jury is the same as in other questions of “mixed fact and law.” Similar difficulties have been felt in the law of Negligence, as we shall see under that head.

Power of jury in assessing damages. In assessing damages the jury “are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in Court during the trial.” And the verdict will not be set aside on the ground of the damages being excessive, unless the Court thinks the amount such as no twelve men could reasonably have given(d) .

Special procedure in actions for newspaper libels. Lord Campbell’s Act (6 & 7 Vict. c. 96, ss. 1, 2), contains special provisions as to proving the offer of an apology in mitigation of damages in actions for defamation, and payment into court together with apology in actions for libel in a public print(e) .

Limits of interrogatories in action for libel. Where money has been paid into court in an action for libel, the plaintiff is not entitled to interrogate the defendant as to the sources of his information or the means used to verify it(f) .

Bad reputation of plaintiff. A plaintiff’s general bad repute cannot be pleaded as part of the defence to an action for defamation, for it is not directly material to the issue, but can be proved only in mitigation of damages(g) .

Injunctions. We have already seen(h) that an injunction may be granted to restrain the publication of defamatory matter, but, on an interlocutory application, only in a clear case(h) , and not where the libel complained of is on the face of it too gross and absurd to do the plaintiff any material harm(i) . Cases of this last kind may be more fitly dealt with by criminal proceedings.

CHAPTER VIII.

WRONGS OF FRAUD AND MALICE.

I.—

Deceit.

Nature of the wrong.In the foregoing chapters we dealt with wrongs affecting the so-called primary rights to security for a man’s person, to the enjoyment of the society and obedience of his family, and to his reputation and good name. In these cases, exceptional conditions excepted, the knowledge or state of mind of the person violating the right is not material for determining his legal responsibility. This is so even in the law of defamation, as we have just seen, the artificial use of the word “malice” notwithstanding. We now come to a kind of wrongs in which either a positive wrongful intention, or such ignorance or indifference as amounts to guilty recklessness (in Roman terms either dolus or culpa lata) is a necessary element; so that liability is founded not in an absolute right of the plaintiff, but in the unrighteousness of the defendant.

Concurrent jurisdiction of common law and equity. The wrong called Deceit consists in leading a man into damage by wilfully or recklessly causing him to believe and act on a falsehood. It is a cause of action by the common law (the action being an action on the case founded on the ancient writ of deceit(a) , which had a much narrower scope): and it has likewise been dealt with by courts of equity under the general jurisdiction of the Chancery in matters of fraud. The principles worked out in the two jurisdictions are believed to be identical(b) , though there may be a theoretical difference as to the character of the remedy, which in the Court of Chancery did not purport to be damages but restitution(c) . Since 1875, therefore, we have in this case a real and perfect fusion of rules of common law and equity which formerly were distinct, though parallel and similar.

Difficulties of the subject: complication with contract. The subject has been one of considerable difficulty for several reasons.

First, the law of tort is here much complicated with the law of contract. A false statement may be the inducement to a contract, or may be part of a contract, and in these capacities may give rise to a claim for the rescission of the contract obtained by its means, or for compensation for breach of the contract or of a collateral warranty. A false statement unconnected with any contract may likewise create, by way of estoppel, an obligation analogous to contract. And a statement capable of being regarded in one or more of these ways may at the same time afford a cause of action in tort for deceit. “If, when a man thinks it highly probable that a thing exists, he chooses to say he knows the thing exists, that is really asserting what is false: it is positive fraud. That has been repeatedly laid down. . . . If you choose to say, and say without inquiry, ‘I warrant that,’ that is a contract. If you say, ‘I know it,’ and if you say that in order to save the trouble of inquiry, that is a false representation—you are saying what is false to induce them to act upon it”(d) .

The grounds and results of these forms of liability are largely similar, but cannot be assumed to be identical. The authorities establishing what is a cause of action for deceit are to a large extent convertible with those which define the right to rescind a contract for fraud or misrepresentation, and the two classes of cases used to be cited without any express discrimination. We shall see however that discrimination is needful.

Questions of fraudulent intent. Secondly, there are difficulties as to the amount of actual fraudulent intention that must be proved against a defendant. A man may be, to all practical intents, deceived and led into loss by relying on words or conduct of another which did not proceed from any set purpose to deceive, but perhaps from an unfounded expectation that what he stated or suggested would be justified by the event. In such a case it seems hard that the party misled should not have a remedy, and yet there is something harsh in saying that the other is guilty of fraud or deceit. An over-sanguine and careless man may do as much harm as a deliberately fraudulent one, but the moral blame is not equal. Again, the jurisdiction of courts of equity in these matters has always been said to be founded on fraud. Equity judges, therefore, were unable to frame a terminology which should clearly distinguish fraud from culpable misrepresentation not amounting to fraud, but having similar consequences in law: and on the contrary they were driven, in order to maintain and extend a righteous and beneficial jurisdiction, to such vague and confusing phrases as “constructive fraud,” or “conduct fraudulent in the eyes of this Court.” Thus they obtained in a cumbrous fashion the results of the bolder Roman maxim culpa lata dolo acquiparatur. The results were good, but, being so obtained, entailed the cost of much laxity in terms and some laxity of thought. Of late years there has been a reaction against this habit, wholesome in the main, but not free from some danger of excess. “Legal fraud” is an objectionable term, but it does not follow that it has no real meaning(e) . One might as well say that the “common counts” for money had and received, and the like, which before the Judicature Acts were annexed to most declarations in contract, disclosed no real cause of action, because the “contract implied in law” which they supposed was not founded on any actual request or promise.

Fraud of agents. Thirdly, special difficulties of the same kind have arisen with regard to false statements made by an agent in the course of his business and for his principal’s purposes, but without express authority to make such statements. Under these conditions it has been thought harsh to hold the principal answerable; and there is a further aggravation of difficulty in that class of cases (perhaps the most important) where the principal is a corporation, for a corporation has been supposed not to be capable of a fraudulent intention. We have already touched on this point(f) ; and the other difficulties appear to have been surmounted, or to be in the way of being surmounted, by our modern authorities.

General conditions of the right of action. Having indicated the kind of problems to be met with, we proceed to the substance of the law.

To create a right of action for deceit there must be a statement made by the defendant, or for which he is answerable as principal, and with regard to that statement all the following conditions must concur:

• (a) It is untrue in fact.
• (b) The person making the statement, or the person responsible for it, either knows it to be untrue, or is culpably ignorant (that is, recklessly and consciously ignorant)(g) whether it be true or not.
• (c) It is made to the intent that the plaintiff shall act upon it, or in a manner apparently fitted to induce him to act upon it(h) .
• (d) The plaintiff does act in reliance on the statement in the manner contemplated or manifestly probable, and thereby suffers damage(i) .

There is no cause of action without both fraud(j) and actual damage, or the damage is the gist of the action(k) .

And according to the general principles of civil liability, the damage must be the natural and probable consequence of the plaintiff’s action on the faith of the defendant’s statement.

• (e) The statement must be in writing and signed in one class of cases, namely, where it amounts to a guaranty: but this requirement is statutory, and as it did not apply to the Court of Chancery, does not seem to apply to the High Court of Justice in its equitable jurisdiction.

Of these heads in order.

Falsehood in fact. (a) A statement can be untrue in fact only if it purports to state matter of fact. A promise is distinct from a statement of fact, and breach of contract, whether from want of power or of will to perform one’s promise, is a different thing from deceit. Again a mere statement of opinion or inference, the facts on which it purports to be founded being notorious or equally known to both parties, is different from a statement importing that certain matters of fact are within the particular knowledge of the speaker. A man cannot hold me to account because he has lost money by following me in an opinion which turned out to be erroneous. In particular cases, however, it may be hard to draw the line between a mere expression of opinion and an assertion of specific fact(l) . And a man’s intention or purpose at a given time is in itself a matter of fact, and capable (though the proof be seldom easy) of being found as a fact. “The state of a man’s mind is as much a fact as the state of his digestion”(m) . It is settled that the vendor of goods can rescind the contract on the ground of fraud if he discovers within due time that the buyer intended not to pay the price(n) .

When a prospectus is issued to shareholders in a company or the like to invite subscriptions to a loan, a statement of the purposes for which the money is wanted—in other words, of the borrower’s intention as to its application—is a material statement of fact, and if untrue may be ground for an action of deceit(n) . The same principle would seem to apply to a man’s statement of the reasons for his conduct, if intended or calculated to influence the conduct of those with whom he is dealing(o) ; as if an agent employed to buy falsely names, not merely as the highest price he is willing to give, but as the actual limit of his authority, a sum lower than that which he is really empowered to deal for.

Misrepresentations of law. A representation concerning a man’s private rights, though it may involve matters of law, is as a whole deemed to be a statement of fact. Where officers of a company incorporated by a private Act of Parliament accept a bill in the name of the company, this is a representation that they have power so to do under the Act of Parliament, and the existence of non-existence of such power is a matter of fact. “Suppose I were to say I have a private Act of Parliament which gives me power to do so and so. Is not that an assertion that I have such an Act of Parliament? It appears to me to be as much a representation of a matter of fact as if I had said I have a particular bound copy of Johnson’s Dictionary”(p) . A statement about the existence or actual text of a public Act of Parliament, or a reported decision, would seem to be no less a statement of fact. With regard to statements of matters of general law made only by implication, or statements of pure propositions of the law, the rule may perhaps be this, that in dealings between parties who have equal means of ascertaining the law, the one will not be presumed to rely upon a statement of matter of law made by the other(q) . It has never been decided whether proof of such reliance is admissible; it is submitted that if the case arose it could be received, though with caution. Of course a man will not in any event be liable to an action of deceit for misleading another by a statement of law, however erroneous, which at the time he really believed to be correct. That case would fall into the general category of honest though mistaken expressions of opinion. If there be any ground of liability, it is not fraud but negligence, and it must be shown that the duty of giving competent advice had been assumed or accepted.

Falsehood by garbled statements. It remains to be noted that a statement of which every part is literally true may be false as a whole, if by reason of the omission of material facts it is as a whole calculated to mislead a person ignorant of those facts into an inference contrary to the truth(r) . “A suppression of the truth may amount to a suggestion of falsehood”(s) .

Knowledge or belief of defendant. (b) As to the knowledge and belief of the person making the statement.

He may believe it to be true(t) . In that case he incurs no liability, nor is he bound to show that his belief was founded on such grounds as would produce the same belief in a prudent and competent man(u) , except so far as the absence of reasonable cause may tend to the inference that there was not any real belief. An honest though dull man cannot be held guilty of fraud any more than of “express malice,” although there is a point beyond which courts will not believe in honest stupidity. “If an untrue statement is made,” said Lord Chelmsford, “founded upon a belief which is destitute of all reasonable grounds, or which the least inquiry would immediately correct, I do not see that it is not fairly and correctly characterized as misrepresentation and deceit”(x) ; Lord Cranworth preferred to say that such circumstances might be strong evidence, but only evidence, that the statement was not really believed to be true, and any liability of the parties “would be the consequence not of their having stated as true what they had not reasonable ground to believe to be true, but of their having stated as true what they did not believe to be true”(y) . Lord Cranworth’s opinion has been declared by the House of Lords(z) , reversing the judgment of the Court of Appeal(a) , to be the correct one. “The ground upon which an alleged belief was founded” is allowed to be “a most important test of its reality”(b) ; but if it can be found as a fact that a belief was really and honestly held, whether on reasonable grounds or not, a statement embodying that belief cannot render its maker liable in an action for deceit(c) , however grossly negligent it may be, and however mischievous in its results(d) .

I have given reasons elsewhere(e) for thinking this decision of the House of Lords an unfortunate one. It would be out of place to repeat those reasons here. But it may be pointed out that the reversed opinion of the Court of Appeal coincides with that which has for many years prevailed in the leading American Courts(f) , and has lately been thus expressed in Massachusetts:—

“It is well settled in this Commonwealth that the charge of fraudulent intent, in an action for deceit, may be maintained by proof of a statement made, as of the party’s own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud consists in stating that the party knows the thing to exist, when he does not know it to exist; and if he does not know it to exist, he must ordinarily be deemed to know that he does not”(g) .

And so, still more lately, the Supreme Court of the United States not only said that “a person who makes representations of material facts, assuming or intending to convey the impression that he has adequate knowledge of the existence of such facts, when he is conscious that he has no such knowledge,” is answerable as if he actually knew them to be false—which is admitted everywhere—but went on to say that a vendor or lessor may be held guilty of deceit by reason of material untrue representations “in respect to his own business or property, the truth of which representations the vendor or lessor is bound and must be presumed to know”(h) . This appears to be precisely the step which in this country the Court of Appeal was prepared, but the House of Lords refused, to take.

In England, on the contrary, “negligence, however great, does not of itself constitute fraud,”(i) nor, it seems, even cast upon the defendant the burden of proving actual belief in the truth of the matter stated(i) . Even the grossest carelessness, in the absence of contract, will not make a man liable for a false statement without a specific finding of fact that he knew the statement to be false or was recklessly ignorant whether it was true or false(k) .

Perhaps it would have been better on principle to hold the duty in these cases to be quasi ex contractu, and evade the barren controversy about “legal fraud.” One who makes a statement as of fact to another, intending him to act thereon, might well be held to request him to act upon it; and it might also have been held to be an implied term or warranty in every such request that the party making it has some reasonable ground for believing what he affirms; not necessarily sufficient ground, but such as might then and there have seemed sufficient to a man of ordinary understanding. This would not have been more artificial than holding, as the Exchequer Chamber was once prepared to hold, that the highest bona fide bidder at an auction, advertised to be without reserve, can sue the auctioneer as on a contract that the sale is really without reserve, or that he has authority to sell without reserve(l) .

And such a development would have been quite parallel to others which have taken place in the modern history of the law. No one now regards an express warranty on a sale otherwise than as a matter of contract; yet until the latter part of the eighteenth century the common practice was to declare on such warranties in tort(m) . But it seems now too late, at all events in this country, to follow such a line of speculation.

It has been suggested that it would be highly inconvenient to admit “inquiry into the reasonableness of a belief admitted to be honestly entertained”(n) . I cannot see that the inquiry is more difficult or inconvenient than that which constantly takes place in questions of negligence, or that it is so difficult as those which are necessary in cases of malicious prosecution and abuse of privileged communications. Besides, we do not admit beliefs to be honest first and ask whether they were reasonable afterwards.

Representations subsequently discovered to be untrue. If, having honestly made a representation, a man discovers that it is not true before the other party has acted upon it, what is his position? It seems on principle that, as the offer of a contract is deemed to continue till revocation or acceptance, here the representation must be taken to be continuously made until it is acted upon, so that from the moment the party making it discovers that it is false and, having the means of communicating the truth to the other party, omits to do so, he is in point of law making a false representation with knowledge of its untruth. And such has been declared to be the rule of the Court of Chancery for the purpose of setting aside a deed. “The case is not at all varied by the circumstance that the untrue representation, or any of the untrue representations, may in the first instance have been the result of innocent error. If, after the error has been discovered, the party who has innocently made the incorrect representation suffers the other party to continue in error and act on the belief that no mistake has been made; this from the time of the discovery becomes, in the contemplation of this Court, a fraudulent misrepresentation, even though it was not so originally”(o) . We do not know of any authority against this being the true doctrine of common law as well as of equity, or as applicable to an action for deceit as to the setting aside of a contract or conveyance. Analogy seems in its favour(p) . Since the Judicature Acts, however, it is sufficient for English purposes to accept the doctrine from equity. The same rule holds if the representation was true when first made, but ceases to be true by reason of some event within the knowledge of the party making it and not within the knowledge of the party to whom it is made(q) .

Assertions made in reckless ignorance. On the other hand if a man states as fact what he does not believe to be fact, he speaks at his peril; and this whether he knows the contrary to be true or has no knowledge of the matter at all, for the pretence of having certain information which he has not is itself a deceit. “He takes upon himself to warrant his own belief of the truth of that which he so asserts”(r) . “If persons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they had asserted that which they knew to be untrue”(s) . These dicta, one of an eminent common law judge, the other of an eminent chancellor, are now both classical; their direct application was to the repudiation of contracts obtained by fraud or misrepresentation, but they state a principle which is well understood to include liability in an action for deceit(t) . The ignorance referred to is conscious ignorance, the state of mind of a man who asserts his belief in a fact “when he is conscious that he knows not whether it be true or false, and when he has therefore no such belief”(u) .

Breach of a special duty to give correct information. With regard to transactions in which a more or less stringent duty of giving full and correct information (not merely of abstaining from falsehood or concealment equivalent to falsehood) is imposed on one of the parties, it may be doubted whether an obligation of this kind annexed by law to particular classes of contracts can ever be treated as independent of contract. If a misrepresentation by a vendor of real property, for example, is wilfully or recklessly false, it comes within the general description of deceit. But there are errors of mere inadvertence which constantly suffice to avoid contracts of these kinds, and in such cases I do not think an action for deceit (or the analogous suit in equity) is known to have been maintained. Since Derry v. Peek it seems clear that it could not be. As regards these kinds of contracts, therefore—but, it is submitted, these only—the right of action for misrepresentation as a wrong is not co-extensive with the right of rescission. In some cases compensation may be recovered as an exclusive or alternative remedy, but on different grounds, and subject to the special character and terms of the contract.

Estoppel. Burrowes v. Lock: former supposed rule of equity. In the absence of a positive duty to give correct information or full and correct answers to inquiry, and in the absence of fraud, there is still a limited class of cases in which a man may be held to make good his statement on the ground of estoppel. Until quite lately it was supposed to be a distinct rule of equity that a man who has misrepresented, in a matter of business, facts which were specially within his knowledge, cannot be heard to say that at the time of making his statement he forgot those facts. But since Derry v. Peek(x) this is not the rule of English courts. There is no general duty to use care, much or little, in making statements of fact on which other persons are likely to act(y) . If there is no contract and no breach of specific duty, nothing short of fraud or estoppel will suffice. And we have to remember that estoppel does not give a cause of action but only supplies a kind of artificial evidence(z) . One of the cases hitherto relied on for the supposed rule(a) can be supported on the ground of estoppel, but on that ground only; a later and apparently not less considered and authoritative one(b) cannot be supported at all.

In short the decision of the House of Lords in Derry v. Peek is that even the grossest carelessness in stating material facts is not equivalent to fraud; and the substance of the decision is not altered by the results turning out to be of wider scope, and to have more effect on other doctrines supposed to be settled, than at the time was apprehended by a tribunal of whose acting members not one had any working acquaintance with courts of equity.

The effects of Derry v. Peek, as regards the particular class of company cases to which the decision immediately applied, have been neutralized by the Directors’ Liability Act, 1890(c) . As this Act “is framed to meet a particular grievance, and does not replace an unsound doctrine which leads to unfortunate results by a sounder principle which would avoid them”(d) , we have no occasion to do more than mention its existence.

Intention of the statement. (c) It is not a necessary condition of liability that the misrepresentation complained of should have been made directly to the plaintiff, or that the defendant should have intended or desired any harm to come to him. It is enough that the representation was intended for him to act upon, and that he has acted in the manner contemplated, and suffered damage which was a natural and probable consequence. If the seller of a gun asserts that it is the work of a well-known maker and safe to use, that as between him and the buyer, is a warranty, and the buyer has a complete remedy in contract if the assertion is found untrue; and this will generally be his better remedy, as he need not then allege or prove anything about the defendant’s knowledge; but he may none the less treat the warranty, if it be fraudulent, as a substantive ground of action in tort. If the buyer wants the gun not for his own use, but for the use of a son to whom he means to give it, and the seller knows this, the seller’s assertion is a representation on which he intends or expects the buyer’s son to act. And if the seller has wilfully or recklessly asserted that which is false, and the gun, being in fact of inferior and unsafe manufacture, bursts in the hands of the purchaser’s son and wounds him, the seller is liable to that son, not on his warranty (for there is no contract between them, and no consideration for any), but for a deceit(e) . He meant no other wrong than obtaining a better price than the gun was worth; probably he hoped it would be good enough not to burst, though not so good as he said it was; but he has put another in danger of life and limb by his falsehood, and he must abide the risk. We have to follow the authorities yet farther.

Representations to a class of persons: Polhill v. Walter. A statement circulated or published in order to be acted on by a certain class of persons, or at the pleasure of any one to whose hands it may come, is deemed to be made to that person who acts upon it, though he may be wholly unknown to the issuer of the statement. A bill is presented for acceptance at a merchant’s office. He is not there, but a friend, not his partner or agent, who does his own business at the same place, is on the spot, and, assuming without inquiry that the bill is drawn and presented in the regular course of business, takes upon himself to accept the bill as agent for the drawee. Thereby he represents to every one who may become a holder of the bill in due course that he has authority to accept; and if he has in fact no authority, and his acceptance is not ratified by the nominal principal, he is liable to an action for deceit, though he may have thought his conduct was for the benefit of all parties, and expected that the acceptance would be ratified(f) .

Denton v. G. N. R. Co. Again the current time-table of a railway company is a representation to persons meaning to travel by the company’s trains that the company will use reasonable diligence to despatch trains at or about the stated times for the stated places. If a train which has been taken off is announced as still running, this is a false representation, and (belief in its truth on the part of the company’s servants being out of the question) a person who by relying on it has missed an appointment and incurred loss may have an action for deceit against the company(g) . Here there is no fraudulent intention. The default is really a negligent omission; a page of the tables should have been cancelled, or an erratum-slip added. And the negligence could hardly be called gross, but for the manifest importance to the public of accuracy in these announcements.

Peek v. Gurney. Again the prospectus of a new company, so far forth as it alleges matters of fact concerning the position and prospects of the undertaking, is a representation addressed to all persons who may apply for shares in the company; but it is not deemed to be addressed to persons who after the establishment of the company become purchasers of shares at one or more removes from the original holders(h) , for the office of the prospectus is exhausted when once the shares are allotted. As regards those to whom it is addressed, it matters not whether the promoters wilfully use misleading language or not, or do or do not expect that the undertaking will ultimately be successful. The material question is, “Was there or was there not misrepresentation in point of fact?”(i) . Innocent or benevolent motives do not justify an unlawful intention in law, though they are too often allowed to do so in popular morality.

Reliance on the representation. (d) As to the plaintiff’s action on the faith of the defendant’s representation.

A. by words or acts represents to B. that a certain state of things exists, in order to induce B. to act in a certain way. The simplest case is where B., relying wholly on A.’s statement, and having no other source of information, acts in the manner contemplated. This needs no further comment. The case of B. disbelieving and rejecting A.’s assertion is equally simple.

Another case is that A.’s representation is never communicated to B. Here, though A. may have intended to deceive B., it is plain that he has not deceived him; and an unsuccessful attempt to deceive, however unrighteous it may be, does not cause damage, and is not an actionable wrong. A fraudulent seller of defective goods who patches up a flaw for the purpose of deceiving an inspection cannot be said to have thereby deceived a buyer who omits to make any inspection at all. We should say this was an obvious proposition, if it had not been judicially doubted(k) . The buyer may be protected by a condition or warranty, express or implied by law from the nature of the particular transaction; but he cannot complain of a merely potential fraud directed against precautions which he did not use. A false witness who is in readiness but is not called is a bad man, but he does not commit perjury.

Means of knowledge immaterial without actual independent inquiry. Yet another case is that the plaintiff has at hand the means of testing the defendant’s statement, indicated by the defendant himself, or otherwise within the plaintiff’s power, and either does not use them or uses them in a partial and imperfect manner. Here it seems plausible at first sight to contend that a man who does not use obvious means of verifying the representations made to him does not deserve to be compensated for any loss he may incur by relying on them without inquiry. But the ground of this kind of redress is not the merit of the plaintiff, but the demerit of the defendant: and it is now settled law that one who chooses to make positive assertions without warrant shall not excuse himself by saying that the other party need not have relied upon them. He must show that his representation was not in fact relied upon. In the same spirit it is now understood (as we shall see in due place) that the defence of contributory negligence does not mean that the plaintiff is to be punished for his want of caution, but that an act or default of his own, and not the negligence of the defendant, was the proximate cause of his damage. If the seller of a business fraudulently overstates the amount of the business and returns, and thereby obtains an excessive price, he is liable to an action for deceit at the suit of the buyer, although the books were accessible to the buyer before the sale was concluded(l) .

Perfunctory inquiry will not do. And the same principle applies as long as the party substantially puts his trust in the representation made to him, even if he does use some observation of his own.

A cursory view of a house asserted by the vendor to be in good repair does not preclude the purchaser from complaining of substantial defects in repair which he afterwards discovers. “The purchaser is induced to make a less accurate examination by the representation, which he had a right to believe”(m) . The buyer of a business is not deprived of redress for misrepresentation of the amount of profits, because he has seen or held in his hand a bundle of papers alleged to contain the entries showing those profits(n) . An original shareholder in a company who was induced to apply for his shares by exaggerated and untrue statements in the prospectus is not less entitled to relief because facts negativing those statements are disclosed by documents referred to in the prospectus, which he might have seen by applying at the company’s office(o) .

In short, nothing will excuse a culpable misrepresentation short of proof that it was not relied on, either because the other party knew the truth, or because he relied wholly on his own investigation, or because the alleged fact did not influence his action at all. And the burden of this proof is on the person who has been proved guilty of material misrepresentation(p) . He may prove any of these things if he can. It is not an absolute proposition of law that one who, having a certain allegation before him, acts as belief in that allegation would naturally induce a man to act, is deemed to have acted on the faith of that allegation. It is an inference of fact, and may be excluded by contrary proof. But the inference is often irresistible(q) .

Ambiguous statements. Difficulties may arise on the construction of the statement alleged to be deceitful. Of course a man is responsible for the obvious meaning of his assertions but where the meaning is obscure, it is for the party complaining to show that he relied upon the words in a sense in which they were false and misleading, and of which they were fairly capable(r) . As most persons take the first construction of obscure words which happens to strike them for the obviously right and only reasonable construction, there must always be room for perplexity in questions of this kind. Even judicial minds will differ widely upon such points, after full discussion and consideration of the various constructions proposed(s) .

Lord Tenterden’s Act. (e) It has already been observed in general that a false representation may at the same time be a promise or term of a contract. In particular it may be such as to amount to, or to be in the nature of, a guaranty. Now by the Statute of Frauds a guaranty cannot be sued on as a promise unless it is in writing and signed by the party to be charged or his agent. If an oral guaranty could be sued on in tort by treating it as a fraudulent affirmation instead of a promise, the statute might be largely evaded. Such actions, in fact, were a novelty a century and a quarter after the statute had been passed(t) , much less were they foreseen at the time. It was pointed out, after the modern action for deceit was established, that the jurisdiction thus created was of dangerous latitude(u) ; and, at a time when the parties could not be witnesses in a court of common law, the objection had much force. By Lord Tenterden’s Act, as it is commonly called(x) , the following provision was made:—

“No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon(y) , unless such representation or assurance be made in writing, signed by the party to be charged therewith.”

This is something more stringent than the Statute of Frauds, for nothing is said, as in that statute, about the signature of a person “thereunto lawfully authorized,” and it has been decided that signature by an agent will not do(z) . Some doubt exists whether the word “ability” does or does not extend the enactment to cases where the representation is not in the nature of a guaranty at all, but an affirmation about some specific circumstance in a person’s affairs. The better opinion seems to be that only statements really going to an assurance of personal credit are within the statute(a) . Such a statement is not the less within it, however, because it includes the allegation of a specific collateral circumstance as a reason(b) .

Quaere as to the law under the Judicature Acts. A more serious doubt is whether the enactment be now practically operative in England. The word “action” of course did not include a suit in equity at the date of the Act, and the High Court has succeeded to all (and in some points more than all) the equitable jurisdiction and powers of the Court of Chancery. But that Court would not in a case of fraud, however undoubted its jurisdiction, act on the plaintiff’s oath against the defendant’s, without the corroboration of documents or other material facts; and it would seem that in every case of this kind where the Court of Chancery had concurrent jurisdiction with the courts of common law (and it is difficult to assign any where it had not), Lord Tenterden’s Act is now superseded by this rule of evidence or judicial prudence.

Misrepresentations made by agents. There still remain the questions which arise in the case of a false representation made by an agent on account of his principal. Bearing in mind that reckless ignorance is equivalent to guilty knowledge, we may state the alternatives to be considered as follows:—

The principal knows the representation to be false and authorizes the making of it. Here the principal is clearly liable; the agent is or is not liable according as he does not or does himself believe the representation to be true.

The principal knows the contrary of the representation to be true, and it is made by the agent in the general course of his employment but without specific authority.

Here, if the agent does not believe his representation to be true, he commits a fraud in the course of his employment and for the principal’s purposes, and, according to the general rule of liability for the acts and defaults of an agent, the principal is liable(c) .

If the agent does believe the representation to be true, there is a difficulty; for the agent has not done any wrong and the principal has not authorized any. Yet the other party’s damage is the same. That he may rescind the contract, if he has been misled into a contract, may now be taken as settled law(d) . But what if there was not any contract, or rescission has become impossible? Has he a distinct ground of action, and if so, how? Shall we say that the agent had apparent authority to pledge the belief of his principal, and therefore the principal is liable? in other words, that the principal holds out the agent as having not only authority but sufficient information to enable third persons to deal with the agent as they would with the principal? Or shall we say, less artificially, that it is gross negligence to withhold from the agent information so material that for want of it he is likely to mislead third persons dealing with the principal through him, and such negligence is justly deemed equivalent to fraud? Such a thing may certainly be done with fraudulent purpose, in the hope that the agent will, by a statement imperfect or erroneous in that very particular, though not so to his knowledge, deceive the other party. Now this would beyond question be actual fraud in the principal, with the ordinary consequences(e) . If the same thing happens by inadvertence, it seems inconvenient to treat such inadvertence as venial, or exempt it from the like consequences. We think, therefore, that an action lies against the principal; whether properly to be described, under common law forms of pleading, as an action for deceit, or as an analogous but special action on the case, there is no occasion to consider(f) .

On the other hand an honest and prudent agent may say, “To the best of my own belief such and such is the case,” adding in express terms or by other clear indication—“but I have no information from my principal.” Here there is no ground for complaint, the other party being fairly put on inquiry.

Liability of corporations herein. If the principal does not expressly authorize the representation, and does not know the contrary to be true, but the agent does, the representation being in a matter within the general scope of his authority, the principal is liable as he would be for any other wrongful act of an agent about his business. And as this liability is not founded on any personal default in the principal, it equally holds when the principal is a corporation(g) . It has been suggested, but never decided, that it is limited to the amount by which the principal has profited through the agent’s fraud. The Judicial Committee have held a principal liable who got no profit at all(h) .

But it seems to be still arguable that the proposed limitation holds in the case of the defendant being a corporation(i) , though it has been disregarded in at least one comparatively early decision of an English superior court, the bearing of which on this point has apparently been overlooked(k) . Ulpian, on the other hand, may be cited in its favour(l) .

Reason of an apparently hard law. The hardest case that can be put for the principal, and by no means an impossible one, is that the principal authorizes a specific statement which he believes to be true, and which at the time of giving the authority is true; before the agent has executed his authority the facts are materially changed to the knowledge of the agent, but unknown to the principal; the agent conceals this from the principal, and makes the statement as originally authorized. But the case is no harder than that of a manufacturer or carrier who finds himself exposed to heavy damages at the suit of an utter stranger by reason of the negligence of a servant, although he has used all diligence in choosing his servants and providing for the careful direction of their work. The necessary and sufficient condition of the master’s responsibility is that the act or default of the servant or agent belonged to the class of acts which he was put in the master’s place to do, and was committed for the master’s purposes. And “no sensible distinction can be drawn between the case of fraud and the case of any other wrong.” The authority of Barwick v. English Joint Stock Bank(m) is believed, notwithstanding the doubts still sometimes expressed, to be conclusive.

II.—

Slander of Title.

Slander of title. The wrong called Slander of Title is in truth a special variety of deceit, which differs from the ordinary type in that third persons, not the plaintiff himself, are induced by the defendant’s falsehood to act in a manner causing damage to the plaintiff. Notwithstanding the current name, an action for this cause is not like an action for ordinary defamation; it is “an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff’s title”(n) . Also the wrong is a malicious one in the only proper sense of the word, that is, absence of good faith is an essential condition of liability(o) ; or actual malice, no less than special damage, is of the gist of the action. The special damage required to support this kind of action is actual damage, not necessarily damage proved with certainty in every particular. Such damage as is the natural consequence of the false statement may be special enough though the connexion may be not specifically proved(p) .

Recent extensions of the principle. This kind of action is not frequent. Formerly it appears to have been applied only to statements in disparagement of the plaintiff’s title to real property. It is now understood that the same reason applies to the protection of title to chattels, and of exclusive interests analogous to property, though not property in the strict sense, like patent rights and copyright. But an assertion of title made by way of self-defence or warning in any of these matters is not actionable, though the claim be mistaken, if it is made in good faith(q) . In America the law has been extended to the protection of inchoate interests under an agreement. If A. has agreed to sell certain chattels to B., and C. by sending to A. a false telegram in the name of B., or by other wilfully false representation, induces A. to believe that B. does not want the goods, and to sell to C. instead, B. has an action against C. for the resulting loss to him, and it is held to make no difference that the original agreement was not enforceable for want of satisfying the Statute of Frauds(r) .

A disparaging statement concerning a man’s title to use an invention, design, or trade name, or his conduct in the matter of a contract, may amount to a libel or slander on him in the way of his business: in other words the special wrong of slander of title may be included in defamation, but it is evidently better for the plaintiff to rely on the general law of defamation if he can, as thus he escapes the troublesome burden of proving malice(s) . Again an action in the nature of slander of title lies for damage caused by wilfully false statements tending to damage the plaintiff’s business, such as that he has ceased to carry it on; and it is immaterial whether the statements are or are not injurious to the plaintiff’s personal character(t) . In short, “that an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law”(u) .

It has been held in Massachusetts that if A. has exclusive privileges under a contract with B., and X. by purposely misleading statements or signs induces the public to believe that X. has the same rights, and thereby diverts custom from A., X. is liable to an action at the suit of A.(v) . In that case the defendants, who were coach owners, used the name of a hotel on their coaches and the drivers’ caps, so as to suggest that they were authorized and employed by the hotel-keeper to ply between the hotel and the railway station; and there was some evidence of express statements by the defendants’ servants that their coach was “the regular coach.” The plaintiffs were the coach owners in fact authorized and employed by the hotel. The Court said that the defendants were free to compete with the plaintiffs for the carriage of passengers and goods to that hotel, and to advertise their intention of so doing in any honest way; but they must not falsely hold themselves out as having the patronage of the hotel, and there was evidence on which a jury might well find such holding out as a fact. The case forms, by the nature of its facts, a somewhat curious link between the general law of false representation and the special rules as to the infringement of rights to a trade mark or trade name(w) . No English case much like it has been met with: its peculiarity is that no title to any property or to a defined legal right was in question. The hotel-keeper could not give a monopoly, but only a sort of preferential comity. But this is practically a valuable privilege in the nature of goodwill, and equally capable of being legally recognized and protected against fraudulent infringement. Goodwill in the accustomed sense does not need the same kind of protection, since it exists by virtue of some express contract which affords a more convenient remedy. Some years ago an attempt was made, by way of analogy to slander of title, to set up an exclusive right to the name of a house on behalf of the owner as against an adjacent owner. Such a right is not known to the law(x) .

Trade marks and trade names. The protection of trade marks and trade names was originally undertaken by the courts on the ground of preventing fraud(y) . But the right to a trade mark, after being more and more assimilated to proprietary rights(z) , has become a statutory franchise analogous to patent rights and copyright(a) ; and in the case of a trade name, although the use of a similar name cannot be complained of unless it is shown to have a tendency to deceive customers, yet the tendency is enough; the plaintiff is not bound to prove any fraudulent intention or even negligence against the defendant(b) . The wrong to be redressed is conceived no longer as a species of fraud, but as being to an incorporeal franchise what trespass is to the possession, or right to possession, of the corporeal subjects of property. We therefore do not pursue the topic here.

III.—

Malicious Prosecution and Abuse of Process.

Malicious prosecution. We have here one of the few cases in which proof of evil motive is required to complete an actionable wrong. “In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause(c) ; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice”(d) . And the plaintiff’s case fails if his proof fails at any one of these points. So the law has been defined by the Court of Appeal and approved by the House of Lords. It seems needless for the purposes of this work to add illustrations from earlier authorities.

It is no excuse for the defendant that he instituted the prosecution under the order of a Court, if the Court was moved by the defendant’s false evidence (though not at his request) to give that order, and if the proceedings in the prosecution involved the repetition of the same falsehood. For otherwise the defendant would be allowed to take advantage of his own fraud upon the Court which ordered the prosecution(e) .

As in the case of deceit, and for similar reasons, it has been doubted whether an action for malicious prosecution will lie against a corporation. It seems, on principle, that such an action will lie if the wrongful act was done by a servant of the corporation in the course of his employment and in the company’s supposed interest, and it has been so held(f) ; but there are dicta to the contrary(g) , and in particular a recent emphatic opinion of Lord Bramwell’s(h) , which, however, as pointed out by some of his colleagues at the time(i) , was extra-judicial.

Malicious civil proceedings. Generally speaking, it is not an actionable wrong to institute civil proceedings without reasonable and probable cause, even if malice be proved. For in contemplation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour which gives him his costs against the plaintiff(k) . And special damage beyond the expense to which he has been put cannot well be so connected with the suit as a natural and probable consequence that the unrighteous plaintiff, on the ordinary principles of liability for indirect consequences, will be answerable for them(l) . “In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution”(m) .

But there are proceedings which, though civil, are not ordinary actions, and fall within the reason of the law which allows an action to lie for the malicious prosecution of a criminal charge. That reason is that prosecution on a charge “involving either scandal to reputation, or the possible loss of liberty to the person”(n) , necessarily and manifestly imports damage. Now the commencement of proceedings in bankruptcy against a trader, or the analogous process of a petition to wind up a company, is in itself a blow struck at the credit of the person or company whose affairs are thus brought in question. Therefore such a proceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong(o) . Other similar exceptional cases were possible so long as there were forms of civil process commencing with personal attachment; but such procedure has not now any place in our system; and the rule that in an ordinary way a fresh action does not lie for suing a civil action without cause has been settled and accepted for a much longer time(p) . In common law jurisdictions where a suit can be commenced by arrest of the defendant or attachment of his property, the old authorities and distinctions may still be material(q) . The principles are the same as in actions for malicious prosecution, mutatis mutandis: thus an action for maliciously procuring the plaintiff to be adjudicated a bankrupt will not lie unless and until the adjudication has been set aside(r) .

Probably an action will lie for bringing and prosecuting an action in the name of a third person maliciously (which must mean from ill-will to the defendant in the action, and without an honest belief that the proceedings are or will be authorized by the nominal plaintiff), and without reasonable or probable cause, whereby the party against whom that action is brought sustains damage; but certainly such an action does not lie without actual damage(s) .

The explanation of malice as “improper and indirect motive” appears to have been introduced by the judges of the King’s Bench between sixty and seventy years ago. But “motive” is perhaps not a much clearer term. “A wish to injure the party rather than to vindicate the law” would be more intelligible(ss) .

IV.—

Other Malicious Wrongs.

Conspiracy. The modern action for malicious prosecution has taken the place of the old writ of conspiracy and the action on the case grounded thereon(t) , out of which it seems to have developed. Whether conspiracy is known to the law as a substantive wrong, or in other words whether two or more persons can ever be joint wrong-doers, and liable to an action as such, by doing in execution of a previous agreement something it would not have been unlawful for them to do without such agreement, is a question of mixed history and speculation not wholly free from doubt. It seems however to be now settled for practical purposes that the conspiracy or “confederation” is only matter of inducement or evidence(u) . “As a rule it is the damage wrongfully done, and not the conspiracy, that is the gist of actions on the case for conspiracy”(x) . “In all such cases it will be found that there existed either an ultimate object of malice or wrong, or wrongful means of execution involving elements of injury to the public, or at least negativing the pursuit of a lawful object”(y) . Either the wrongful acts by which the plaintiff has suffered were such as one person could not commit alone(z) , say a riot, or they were wrongful because malicious, and the malice is proved by showing that they were done in execution of a concerted design. In the singular case of Gregory v. Duke of Brunsicick(a) the action was in effect for hissing the plaintiff off the stage of a theatre in pursuance of a malicious conspiracy between the defendants. The Court were of opinion that in point of law the conspiracy was material only as evidence of malice, but that in point of fact there was no other such evidence, and therefore the jury were rightly directed that without proof of it the plaintiff’s case must fail.

“It may be true, in point of law, that, on the declaration as framed, one defendant might be convicted though the other were acquitted; but whether, as a matter of fact, the plaintiff could entitle himself to a verdict against one alone, is a very different question. It is to be borne in mind that the act of hissing in a public theatre is, prima facie, a lawful act; and even if it should be conceded that such an act, though done without concert with others, if done from a malicious motive, might furnish a ground of action, yet it would be very difficult to infer such a motive from the insulated acts of one person unconnected with others. Whether, on the facts capable of proof, such a case of malice could be made out against one of the defendants, as, apart from any combination between the two, would warrant the expectation of a verdict against the one alone, was for the consideration of the plaintiff’s counsel; and, when he thought proper to rest his case wholly on proof of conspiracy, we think the judge was well warranted in treating the case as one in which, unless the conspiracy were established, there was no ground for saying that the plaintiff was entitled to a verdict; and it would have been unfair towards the defendants to submit it to the jury as a case against one of the defendants to the exclusion of the other, when the attention of their counsel had never been called to that view of the case, nor had any opportunity [been ?] given them to advert to or to answer it. The case proved was, in fact, a case of conspiracy, or it was no case at all on which the jury could properly find a verdict for the plaintiff”(b) .

Soon after this case was dealt with by the Court of Common Pleas in England, the Supreme Court of New York laid it down (not without examination of the earlier authorities) that conspiracy is not in itself a cause of action(c) .

In 1889 the question was raised in a curious and important case in this country. The material facts may, perhaps, be fairly summarized, for the present purpose, as follows:—A., B., and C. were the only persons engaged in a certain foreign trade, and desired to keep the trade in their own hands. Q. threatened, and in fact commenced, to compete with them. A., B., and C. thereupon agreed to offer specially favourable terms to all customers who would agree to deal with themselves to the exclusion of Q. and all other competitors outside the combination. This action had the effect of driving Q. out of the market in question, as it was intended to do. It was held by the majority of the Court of Appeal, and unanimously by the House of Lords, that A., B., and C. had done nothing which would have been unlawful if done by a single trader in his own sole interest, and that their action did not become unlawful by reason of being undertaken in concert by several persons for a common interest. The agreement was in restraint of trade, and could not have been enforced by any of the parties if the others had refused to execute it, but that did not make it punishable or wrongful(d) .

It is possible, however, that an agreement of this kind might in some cases be held to amount to an indictable conspiracy on the ground of obvious and excessive public inconvenience(e) . At the same time, even if this be admitted, it would not be easy for a court to say beforehand how far any particular trade combination was likely to have permanently mischievous results(f) .

Relation of conspiracy to lawful acts or forbearances of third persons. It would seem to follow from the principles of the modern cases that it cannot be an actionable conspiracy for two or more persons, by lawful means, to induce another or others to do what they are by law free to do or to abstain from doing what they are not bound by law to do. Yet the Court of Appeal has held that procuring persons—not to break a contract, but—not to renew expiring contracts or make a fresh contract, may be actionable if done “maliciously,” without any allegation that intimidation or other unlawful means were used(g) . It is submitted that not even the authority of the Court of Appeal will make this decision correct, and that it is not really consistent with the decision of the House of Lords in the Mogul Company’s case.

Malicious interference with one’s occupation, contract, or franchise. There may be other malicious injuries not capable of more specific definition “where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood”; as where the plaintiff is owner of a decoy for catching wild fowl, and the defendant, without entering on the plaintiff’s land, wilfully fires off guns near to the decoy, and frightens wild fowl away from it(h) . Not many examples of the kind are to be found, and this is natural; for they have to be sought in a kind of obscure middle region where the acts complained of are neither wrongful in themselves as amounting to trespass against the plaintiff or some third person(i) , nuisance(k) , or breach of an absolute specific duty, nor yet exempt from search into their motives as being done in the exercise of common right in the pursuit of a man’s lawful occupation or the ordinary use of his property(l) . Mere competition carried on for the purpose of gain, not out of actual malice, and not by unlawful means, such as molestation or intimidation, is not actionable, even though it be intended to drive a rival trader out of the field, and produce that result(m) . “The policy of our law, as at present declared by the legislature, is against all fetters on combination and competition unaccompanied by violence or fraud or other like injurious acts”(n) . Beyond generally forbidding the use of means unlawful in themselves, the law does not impose any restriction upon competition by one trader with another with the sole view of benefiting himself. A different question would arise if there were evidence of an intention on the defendant’s part to injure the plaintiff without benefiting himself. “Thus, if several persons agree not to deal at all with a particular individual, as this could not, under ordinary circumstances, benefit the persons so agreeing”(o) . Driving a public performer off the stage by marks of disapprobation which proceed not from an honest opinion of the demerits of his performance or person, but from private enmity, is, as we have just seen, a possible but doubtful instance of this sort of wrong(p) . Holt put the case of a schoolmaster frightening away children from attendance at a rival school(q) . It is really on the same principle that an action has been held to lie for maliciously (that is, with the design of injuring the plaintiff or gaining some advantage at his expense) procuring a third person to break his contract with the plaintiff, and thereby causing damage to the plaintiff(r) . The precise extent and bearing of the doctrine are discussed in the final chapter of this book with reference to the difficulties that have been felt about it, and expressed in dissenting judgments and elsewhere. Those difficulties (I submit and shall in that place endeavour to prove) either disappear or are greatly reduced when the cause of action is considered as belonging to the class in which malice, in the sense of actual ill-will, is a necessary element.

Generally speaking, every wilful interference with the exercise of a franchise is actionable without regard to the defendant’s act being done in good faith, by reason of a mistaken notion of duty or claim of right, or being consciously wrongful. “If a man hath a franchise and is hindered in the enjoyment thereof, an action doth lie, which is an action upon the case”(s) . But persons may as public officers be in a quasi-judicial position in which they will not be liable for an honest though mistaken exercise of discretion in rejecting a vote or the like, but will be liable for a wilful and conscious, and in that sense malicious, denial of right(t) . In such cases the wrong, if any, belongs to the class we have just been considering.

Maintenance. The wrong of maintenance, or aiding a party in litigation without either interest in the suit, or lawful cause of kindred, affection, or charity for aiding him, is akin to malicious prosecution and other abuses of legal process; but the ground of it is not so much an independent wrong as particular damage resulting from “a wrong founded upon a prohibition by statute”—a series of early statutes said to be in affirmation of the common law—“which makes it a criminal act and a misdemeanor”(u) . Hence it seems that a corporation cannot be guilty of maintenance(u) . Actions for maintenance are in modern times rare though possible(x) ; and the decision of the Court of Appeal that mere charity, with or without reasonable ground, is an excuse for maintaining the suit of a stranger(y) , does not tend to encourage them.

CHAPTER IX.

WRONGS TO POSSESSION AND PROPERTY.

I.—

Duties regarding Property generally.

Absolute duty to respect others’ property.Every kind of intermeddling with anything which is the subject of property is a wrong unless it is either authorized by some person entitled to deal with the thing in that particular way, or justified by authority of law, or (in some cases but by no means generally) excusable on the ground that it is done under a reasonable though mistaken supposition of lawful title or authority. Broadly speaking, we touch the property of others at our peril, and honest mistake in acting for our own interest(a) , or even an honest intention to act for the benefit of the true owner(b) , will avail us nothing if we transgress.

Title, justification, excuse. A man may be entitled in divers ways to deal with property moveable or immoveable, and within a wider or narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undetermined though determinable, and of an extent which may vary from being hardly distinguishable from full dominion to being strictly limited to a specific purpose. It belongs to the law of property to tell us what are the rights of owners and possessors, and by what acts in the law they may be created, transferred, or destroyed. Again, a man may have the right of using property to a limited extent, and either to the exclusion of all other persons besides the owner or possessor, or concurrently with other persons, without himself being either owner or possessor. The definition of such rights belongs to that part of the law of property which deals with easements and profits. Again, he may be authorized by law, for the execution of justice or for purposes of public safety and convenience, or under exceptional conditions for the true owner’s benefit, to interfere with property to which he has no title and does not make any claim. We have seen somewhat of this in the chapter of “General Exceptions.” Again, he may be justified by a consent of the owner or possessor which does not give him any interest in the property, but merely excuses an act, or a series of acts, that otherwise would be wrongful. Such consent is known as a licence.

Title dependent on contract. Title to property, and authority to deal with property in specified ways, are commonly conferred by contract or in pursuance of some contract. Thus it oftentimes depends on the existence or on the true construction of a contract whether a right of property exists, or what is the extent of rights admitted to exist. A man obtains goods by fraud and sells them to another purchaser who buys in good faith, reasonably supposing that he is dealing with the true owner. The fraudulent re-seller may have made a contract which the original seller could have set aside, as against him, on the ground of fraud. If so, he acquires property in the goods, though a defeasible property, and the ultimate purchaser in good faith has a good title. But the circumstances of the fraud may have been such that there was no true consent on the part of the first owner, no contract at all, and no right of property whatever, not so much as lawful possession, acquired by the apparent purchaser. If so, the defrauder has not any lawful interest which he can transfer even to a person acting in good faith and reasonably: and the ultimate purchaser acquires no manner of title, and notwithstanding his innocence is liable as a wrong-doer(c) . Principles essentially similar, but affected in their application, and not unfrequently disguised, by the complexity of our law of real property, hold good of dealings with land(d) .

Exceptional protection of certain dealings in good faith. Acts of persons dealing in good faith with an apparent owner may be, and have been, protected in various ways and to a varying extent by different systems of law. The purchaser from an apparent owner may acquire, as under the common-law rule of sales in market overt, a better title than his vendor had; or, by an extension in the same line, the dealings of apparently authorized agents in the way of sale or pledge may, for the security of commerce, have a special validity conferred on them, as under our Factors Acts(e) ; or one who has innocently dealt with goods which he is now unable to produce or restore specifically may be held personally excused, saving the true owner’s liberty to retake the goods if he can find them, and subject to the remedies over, if any, which may be available under a contract of sale or a warranty for the person dispossessed by the true owner. Excuse of this kind is however rarely admitted, though much the same result may sometimes be arrived at on special technical grounds.

The rights and remedies known to the common law are possessory. It would seem that, apart from doubtful questions of title (which no system of law can wholly avoid), there ought not to be great difficulty in determining what amounts to a wrong to property, and who is the person wronged. But in fact the common law does present great difficulties; and this because its remedies were bound, until a recent date, to medieval forms, and limited by medieval conceptions. The forms of action brought not Ownership but Possession to the front in accordance with a habit of thought which, strange as it may now seem to us, found the utmost difficulty in conceiving rights of property as having full existence or being capable of transfer and succession unless in close connexion with the physical control of something which could be passed from hand to hand, or at least a part of it delivered in the name of the whole(f) . An owner in possession was protected against disturbance, but the rights of an owner out of possession were obscure and weak. To this day it continues so with regard to chattels. For many purposes the “true owner” of goods is the person, and only the person, entitled to immediate possession. The term is a short and convenient one, and may be used without scruple, but on condition of being rightly understood. Regularly the common law protects ownership only through possessory rights and remedies. The reversion or reversionary interest of the freeholder or general owner out of possession is indeed well known to our authorities, and by conveyancers it is regarded as a present estate or interest. But when it has to be defended in a court of common law, the forms of action treat it rather as the shadow cast before by a right to possess at a time still to come. It has been said that there is no doctrine of possession in our law. The reason of this appearance, an appearance capable of deceiving even learned persons, is that possession has all but swallowed up ownership; and the rights of a possessor, or one entitled to possess, have all but monopolized the very name of property. There is a common phrase in our books that possession is prima facie evidence of title. It would be less intelligible at first sight, but not less correct, to say that in the developed system of common law pleading and procedure, as it existed down to the middle of this century, proof of title was material only as evidence of a right to possess. And it must be remembered that although forms of action are no longer with us, causes of action are what they were, and cases may still occur where it is needful to go back to the vanished form as the witness and measure of subsisting rights. The sweeping protection given to rights of property at this day is made up by a number of theoretically distinct causes of action. The disturbed possessor had his action of trespass (in some special cases replevin); if at the time of the wrong done the person entitled to possess was not in actual legal possession, his remedy was detinue, or, in the developed system, trover. An owner who had neither possession nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any technical name.

Possession and detention. Notwithstanding first appearances, then, the common law has a theory of possession, and a highly elaborated one. To discuss it fully would not be appropriate here(g) ; but we have to bear in mind that it must be known who is in legal possession of any given subject of property, and who is entitled to possess it, before we can tell what wrongs are capable of being committed, and against whom, by the person having physical control over it, or by others. Legal possession does not necessarily coincide either with actual physical control or the present power thereof (the “detention” of Continental terminology), or with the right to possess (constantly called “property” in our books); and it need not have a rightful origin. The separation of detention, possession in the strict sense, and the right to possess, is both possible and frequent. A lends a book to B., gratuitously and not for any fixed time, and B. gives the book to his servant to carry home. Here B.’s servant has physical possession, better named custody or detention, but neither legal possession(h) nor the right to possess; B. has legal and rightful possession, and the right to possess as against every one but A.; while A. has not possession, but has a right to possess which he can make absolute at any moment by determining the bailment to B., and which the law regards for many purposes as if it were already absolute. As to an actual legal possession (besides and beyond mere detention) being acquired by wrong, the wrongful change of possession was the very substance of disseisin as to land, and is still the very substance of trespass by taking and carrying away goods (debonis asportatis), and as such it was and is a necessary condition of the offence of larceny at common law.

The common law, when it must choose between denying legal possession to the person apparently in possession, and attributing it to a wrong-doer, generally prefers the latter course. In Roman law there is no such general tendency, though the results are often similar(i) .

Trespass and conversion. Trespass is the wrongful disturbance of another person’s possession of land(j) or goods. Therefore it cannot be committed by a person who is himself in possession(k) ; though in certain exceptional cases a dispunishable or even a rightful possessor of goods may by his own act, during a continuous physical control, make himself a mere trespasser. But a possessor may do wrong in other ways. He may commit waste as to the land he holds, or he may become liable to an action of ejectment by holding over after his title or interest is determined. As to goods he may detain them without right after it has become his duty to return them, or he may convert them to his own use, a phrase of which the scope has been greatly extended in the modern law. Thus we have two kinds of duty, namely to refrain from meddling with what is lawfully possessed by another, and to refrain from abusing possession which we have lawfully gotten under a limited title; and the breach of these produces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intolerable results, and a working margin was given by beneficent fictions which (like most indirect and gradual reforms) extended the usefulness of the law at the cost of making it intricate and difficult to understand. On the one hand the remedies of an actual possessor were freely accorded to persons who had only the right to possess(l) ; on the other hand the person wronged was constantly allowed at his option to proceed against a mere trespasser as if the trespasser had only abused a lawful or at any rate excusable possession.

Alternative remedies. In the later history of common law pleading trespass and conversion became largely though not wholly interchangeable. Detinue, the older form of action for the recovery of chattels, was not abolished, but it was generally preferable to treat the detention as a conversion and sue in trover(m) , so that trover practically superseded detinue, as the writ of right and the various assizes, the older and once the only proper remedies whereby a freeholder could recover possession of the land, were superseded by ejectment, a remedy at first introduced merely for the protection of leasehold interests. With all their artificial extensions these forms of action did not completely suffice. There might still be circumstances in which a special action on the case was required. And these complications cannot be said to be even now wholly obsolete. For exceptional circumstances may still occur in which it is doubtful whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for the value of the goods wrongfully dealt with or only for his actual damage, which may be a nominal sum. Under such conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law(n) , but while it exists we must take account of it.

II.—

Trespass.

What shall be said a trespass. Trespass may be committed by various kinds of acts, of which the most obvious are entry on another’s land (trespass quare clausum fregit), and taking another’s goods (trespass de bonis asportatis)(o) . Notwithstanding that trespasses punishable in the king’s court were said to be vi et armis, and were supposed to be punishable as a breach of the king’s peace, neither the use of force, nor the breaking of an inclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise immaterial, in strictness of law, whether there be any actual damage or not. “Every invasion of private property, be it ever so minute, is a trespass”(p) . There is no doubt that if one walks across a stubble field without lawful authority or the occupier’s leave, one is technically a trespasser, and it may be doubted whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor(q) , a licence (as to which more presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified part of open land or private ways, or from doing injurious acts. In such cases there seems to be a general licence to use the land or ways in conformity with the owner’s will thus expressed. But even so, persons using the land are no more than “bare licensees,” and their right is of the slenderest. Loitering on a highway, not for the purpose of using it as a highway, but for the purpose of annoying the owner of the soil in his lawful use of the adjacent land, may be a trespass against that owner(r) .

Quaere concerning balloons. It has been doubted whether it is a trespass to pass over land without touching the soil, as one may in a balloon, or to cause a material object, as shot fired from a gun, to pass over it. Lord Ellenborough thought it was not in itself a trespass “to interfere with the column of air superincumbent on the close,” and that the remedy would be by action on the case for any actual damage: though he had no difficulty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his neighbour’s land(s) . Fifty years later Lord Blackburn inclined to think differently(t) , and his opinion seems the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why an entry at any height above the surface should not also be a trespass. The improbability of actual damage may be an excellent practical reason for not suing a man who sails over one’s land in a balloon; but this appears irrelevant to the pure legal theory. Trespasses clearly devoid of legal excuse are committed every day on the surface itself, and yet are of so harmless a kind that no reasonable occupier would or does take any notice of them. Then one can hardly doubt that it might be a nuisance, apart from any definite damage, to keep a balloon hovering over another man’s land: but if it is not a trespass in law to have the balloon there at all, one does not see how a continuing trespass is to be committed by keeping it there. Again, it would be strange if we could object to shots being fired across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. The doctrine suggested by Lord Ellenborough’s dictum, if generally accepted and acted on, would so far be for the benefit of the public service that the existence of a right of “innocent passage” for projectiles over the heads and lands of the Queen’s subjects would increase the somewhat limited facilities of the land forces for musketry and artillery practice at long ranges. But we are not aware that such a right has in fact been claimed or exercised.

Trespass by a man’s cattle is dealt with exactly like trespass by himself; but in the modern view of the law this is only part of a more general rule or body of rules imposing an exceptionally strict and unqualified duty of safe custody on grounds of public expediency. In that connexion we shall accordingly return to the subject(u) .

Encroachment under or above ground by the natural growth of roots or branches of a tree standing in adjacent land is not a trespass, though it may be a nuisance(v) .

Trespass to goods. Trespass to goods may be committed by taking possession of them, or by any other act “in itself immediately injurious” to the goods in respect of the possessor’s interest(x) , as by killing(y) , beating(z) , or chasing(a) animals, or defacing a work of art. Where the possession is changed the trespass is an asportation (from the old form of pleading, cepit et asportavit for inanimate chattels, abduxit for animals), and may amount to the offence of theft. Other trespasses to goods may be criminal offences under the head of malicious injury to property. The current but doubtful doctrine of the civil trespass being “merged in the felony” when the trespass is felonious has been considered in an earlier chapter(b) . Authority, so far as known to the present writer, does not clearly show whether it is in strictness a trespass merely to lay hands on another’s chattel without either dispossession(c) or actual damage. By the analogy of trespass to land it seems that it must be so. There is no doubt that the least actual damage would be enough(d) . And cases are conceivable in which the power of treating a mere unauthorized touching as a trespass might be salutary and necessary, as where valuable objects are exhibited in places either public or open to a large class of persons. In the old precedents trespass to goods hardly occurs except in conjunction with trespass to land(e) .

III.—

Injuries to Reversion.

Wrongs to an owner not in possession. A person in possession of property may do wrong by refusing to deliver possession to a person entitled, or by otherwise assuming to deal with the property as owner or adversely to the true owner, or by dealing with it under colour of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion. The law started from entirely distinct conceptions of the mere detaining of property from the person entitled, and the spoiling or altering it to the prejudice of one in reversion or remainder, or a general owner(f) . For the former case the common law provided its most ancient remedies—the writ of right (and later the various assizes and the writ of entry) for land, and the parallel writ of detinue (parallel as being merely a variation of the writ of debt, which was precisely similar in form to the writ of right) for goods; to this must be added, in special, but once frequent and important cases, replevin(g) . For the latter the writ of waste (as extended by the Statutes of Marlbridge and Gloucester) was available as to land; later this was supplanted by an action on the case(h) “in the nature of waste,” and in modern times the power and remedies of courts of equity have been found still more effectual(i) . The process of devising a practical remedy for owners of chattels was more circuitous; they were helped by an action on the case which became a distinct species under the name of trover, derived from the usual though not necessary form of pleading, which alleged that the defendant found the plaintiff’s goods and converted them to his own use(k) . The original notion of conversion in personal chattels answers closely to that of waste in tenements; but it was soon extended so as to cover the whole ground of detinue(l) , and largely overlap trespass; a mere trespasser whose acts would have amounted to conversion if done by a lawful possessor not being allowed to take exception to the true owner “waiving the trespass,” and professing to assume in the defendant’s favour that his possession had a lawful origin.

IV.—

Waste.

Waste. Waste is any unauthorized act of a tenant for a freehold estate not of inheritance, or for any lesser interest, which tends to the destruction of the tenement, or otherwise to the injury of the inheritance. Such injury need not consist in loss of market value; an alteration not otherwise mischievous may be waste in that it throws doubt on the identification of the property, and thereby impairs the evidence of title. It is said that every conversion of land from one species to another—as ploughing up woodland, or turning arable into pasture land—is waste, and it has even been said that building a new house is waste(m) . But modern authority does not bear this out; “in order to prove waste you must prove an injury to the inheritance” either “in the sense of value” or “in the sense of destroying identity”(n) . And in the United States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improving the land—clearing wild woods for example—which in England, or even in the Eastern States, would be manifest waste(o) . As to permissive waste, i.e., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the instrument creating his estate; otherwise he is not(p) . It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, “having regard to its character and to the purposes for which it was intended to be used”(q) , whatever the actual consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin(r) . Destructive waste by a tenant at will may amount to trespass, in the strict sense, against the lessor. The reason will be more conveniently explained hereafter(s) .

Modern law of waste: tenants for life. In modern practice, questions of waste arise either between a tenant for life(t) and those in remainder, or between landlord and tenant. In the former case, the unauthorized cutting of timber is the most usual ground of complaint; in the latter, the forms of misuse or neglect are as various as the uses, agricultural, commercial, or manufacturing, for which the tenement may be let and occupied. With regard to timber, it is to be observed that there are “timber estates” on which wood is grown for the purpose of periodical cutting and sale, so that “cutting the timber is the mode of cultivation”(u) . On such land cutting the timber is equivalent to taking a crop off arable land, and if done in the usual course is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timber and minerals for use, but, unless with further specific authority, he must not remove timber planted for ornament (save so far as the cutting of part is required for the preservation of the rest)(x) open a mine in a garden or pleasure-ground, or do like acts destructive to the individual character and amenity of the dwelling-place(y) . The commission of such waste may be restrained by injunction, without regard to pecuniary damage to the inheritance: but, when it is once committed, the normal measure of damages can only be the actual loss of value(z) . Further details on the subject would not be appropriate here. They belong rather to the law of Real Property.

Landlord and tenant. As between landlord and tenant the real matter in dispute, in a case of alleged waste, is commonly the extent of the tenant’s obligation, under his express or implied covenants, to keep the property demised in safe condition or repair. Yet the wrong of waste is none the less committed (and under the old procedure was no less remediable by the appropriate action on the case) because it is also a breach of the tenant’s contract(a) . Since the Judicature Acts it is impossible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort(b) : doubtless it would be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class.

V.—

Conversion.

Conversion: relation of trover to trespass. Conversion, according to recent authority, may be described as the wrong done by “an unauthorized act which deprives another of his property permanently or for an indefinite time”(c) . Such an act may or may not include a trespass; whether it does or not is immaterial as regards the right of the plaintiff in a civil action, for even under the old forms he might “waive the trespass”; though as regards the possibility of the wrong-doer being criminally liable it may still be a vital question, trespass by taking and carrying away the goods being a necessary element in the offence of larceny at common law. But the definition of theft (in the first instance narrow but strictly consistent, afterwards complicated by some judicial refinements and by numerous unsystematic statutory additions) does not concern us here. The “property” of which the plaintiff is deprived—the subject-matter of the right which is violated—must be something which he has the immediate right to possess; only on this condition could one maintain the action of trover under the old forms. Thus, where goods had been sold and remained in the vendor’s possession subject to the vendor’s lien for unpaid purchase-money, the purchaser could not bring an action of trover against a stranger who removed the goods, at all events without payment or tender of the unpaid balance(d) .

But an owner not entitled to immediate possession might have a special action on the case, not being trover, for any permanent injury to his interest, though the wrongful act might also be a trespass, conversion, or breach of contract as against the immediate possessor(e) . As under the Judicature Acts the difference of form between trover and a special action which is not trover does not exist, there seems to be no good reason why the idea and the name of conversion should not be extended to cover these last-mentioned cases.

What amounts to conversion. On the other hand, the name has been thought altogether objectionable by considerable authorities(f) : and certainly the natural meaning of converting property to one’s own use has long been left behind. It came to be seen that the actual diversion of the benefit arising from use and possession was only one aspect of the wrong, and not a constant one. It did not matter to the plaintiff whether it was the defendant, or a third person taking delivery from the defendant, who used his goods, or whether they were used at all; the essence of the injury was that the use and possession were dealt with in a manner adverse to the plaintiff and inconsistent with his right of dominion.

The grievance is the unauthorized assumption of the powers of the true owner. Actually dealing with another’s goods as owner for however short a time and however limited a purpose(g) is therefore conversion; so is an act which in fact enables a third person to deal with them as owner, and which would make such dealing lawful only if done by the person really entitled to possess the goods(h) . It makes no difference that such acts were done under a mistaken but honest and even reasonable supposition of being lawfully entitled(g) , or even with the intention of benefiting the true owner(h) ; nor is a servant, or other merely ministerial agent, excused for assuming the dominion of goods on his master’s or principal’s behalf, though he “acted under an unavoidable ignorance and for his master’s benefit”(i) . It is common learning that a refusal to deliver possession to the true owner on demand is evidence of a conversion, but evidence only(k) ; that is, one natural inference if I hold a thing and will not deliver it to the owner is that I repudiate his ownership and mean to exercise dominion in despite of his title either on my own behalf or on some other claimant’s. “If the refusal is in disregard of the plaintiff’s title, and for the purpose of claiming the goods either for the defendant or for a third person, it is a conversion”(l) . But this is not the only possible inference and may not be the right one. The refusal may be a qualified and provisional one: the possessor may say, “I am willing to do right, but that I may be sure I am doing right, give me reasonable proof that you are the true owner”: and such a possessor, even if over-cautious in the amount of satisfaction he requires, can hardly be said to repudiate the true owner’s claim(m) . Or a servant having the mere custody of goods under the possession of his master as bailee—say the servant of a warehouseman having the key of the warehouse—may reasonably and justifiably say to the bailor demanding his goods: “I cannot deliver them without my master’s order”; and this is no conversion. “An unqualified refusal is almost always conclusive evidence of a conversion; but if there be a qualification annexed to it, the question then is whether it be a reasonable one”(n) . Again there may be a wrongful dealing with goods, not under an adverse claim, but to avoid having anything to do with them or with their owner. Where a dispute arises between the master of a ferryboat and a passenger, and the master refuses to carry the passenger and puts his goods on shore, this may be a trespass, but it is not of itself a conversion(o) . This seems of little importance in modern practice, but we shall see that it might still affect the measure of damages.

In many cases the refusal to deliver on demand not only proves but constitutes the conversion. When this is so, the Statute of Limitation runs from the date of the refusal, without regard to any prior act of conversion by a third person(p) .

By a conversion the true owner is, in contemplation of law, totally deprived of his goods; therefore, except in a few very special cases(q) , the measure of damages in an action of trover was the full value of the goods, and by a satisfied judgment(r) for the plaintiff the property in the goods, if they still existed in specie, was transferred to the defendant.

Acts not amounting to conversion. The mere assertion of a pretended right to deal with goods or threatening to prevent the owner from dealing with them is not conversion, though it may perhaps be a cause of action, if special damage can be shown(s) ; indeed it is doubtful whether a person not already in possession can commit the wrong of conversion by any act of interference limited to a special purpose and falling short of a total assumption of dominion against the true owner(t) . An attempted sale of goods which does not affect the property, the seller having no title and the sale not being in market overt, nor yet the possession, there being no delivery, is not a conversion. If undertaken in good faith, it would seem not to be actionable at all; otherwise it might come within the analogy of slander of title. But if a wrongful sale is followed up by delivery, both the seller(u) and the buyer(x) are guilty of a conversion. Again, a mere collateral breach of contract in dealing with goods entrusted to one is not a conversion; as where the master of a ship would not sign a bill of lading except with special terms which he had no right to require, but took the cargo to the proper port and was willing to deliver it, on payment of freight, to the proper consignee(y) .

Dealings under authority of apparent owner. A merely ministerial dealing with goods, at the request of an apparent owner having the actual control of them, appears not to be conversion(z) ; but the extent of this limitation or exception is not precisely defined. The point is handled in the opinion delivered to the House of Lords in Hollins v. Fowler(a) by Lord Blackburn, then a Justice of the Queen’s Bench; an opinion which gives in a relatively small compass a lucid and instructive view of the whole theory of the action of trover. It is there said that “on principle, one who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodian is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession(b) , if he was a finder of the goods, or intrusted with their custody.” This excludes from protection, and was intended to exclude, such acts as those of the defendants in the case then at bar: they had bought cotton, innocently and without negligence, from a holder who had obtained it by fraud, and had no title, and they had immediately resold it to a firm for whom they habitually acted as cotton brokers, not making any profit beyond a broker’s commission. Still it appeared to the majority of the judges and to the House of Lords that the transaction was not a purchase on account of a certain customer as principal, but a purchase with a mere expectation of that customer (or some other customer) taking the goods; the defendants therefore exercised a real and effective though transitory dominion: and having thus assumed to dispose of the goods, they were liable to the true owner(c) . So would the ultimate purchasers have been (though they bought and used the cotton in good faith), had the plaintiffs thought fit to sue them(d) .

Acts of servants. But what of the servants of those purchasers, who handled the cotton under their authority and apparent title, and by making it into twist wholly changed its form? Assuredly this was conversion enough in fact and in the common sense of the word; but was it a conversion in law? Could any one of the factory hands have been made the nominal defendant and liable for the whole value of the cotton? Or if a thief brings corn to a miller, and the miller, honestly taking him to be the true owner, grinds the corn into meal and delivers the meal to him without notice of his want of title; is the miller, or are his servants, liable to the true owner for the value of the corn? Lord Blackburn thought these questions open and doubtful(e) . There appears to be nothing in the authorities to prevent it from being excusable to deal with goods merely as the servant or agent of an apparent owner in actual possession, or under a contract with such owner, according to the apparent owner’s direction; neither the act done, nor the contract (if any), purporting to involve a transfer of the supposed property in the goods, and the ostensible owner’s direction being one which he could lawfully give if he were really entitled to his apparent interest, and being obeyed in the honest(f) belief that he is so entitled. It might or might not be convenient to hold a person excused who in good faith assumes to dispose of goods as the servant and under the authority and for the benefit of a person apparently entitled to possession but not already in possession. But this could not be done without overruling accepted authorities(g) .

Redelivery by bailees. A bailee is prima facie estopped as between himself and the bailor from disputing the bailor’s title(h) . Hence, as he cannot be liable to two adverse claimants at once, he is also justified in redelivering to the bailor in pursuance of his employment, so long as he has not notice (or rather is not under the effective pressure)(h) of any paramount claim: it is only when he is in danger of such a claim that he is not bound to redeliver to the bailor(i) . When there are really conflicting claims, the contract of bailment does not prevent a bailee from taking interpleader proceedings(k) . This case evidently falls within the principle suggested by Lord Blackburn; but the rules depend on the special character of a bailee’s contract.

Abuse of limited interest. Where a bailee has an interest of his own in the goods (as in the common cases of hiring and pledge) and under colour of that interest deals with the goods in excess of his right, questions of another kind arise. Any excess whatever by the possessor of his rights under his contract with the owner will of course be a breach of contract, and it may be a wrong. But it will not be the wrong of conversion unless the possessor’s dealing is “wholly inconsistent with the contract under which he had the limited interest,” as if a hirer for example destroys or sells the goods(l) . That is a conversion, for it is deemed to be a repudiation of the contract, so that the owner who has parted with possession for a limited purpose is by the wrongful act itself restored to the immediate right of possession, and becomes the effectual “true owner” capable of suing for the goods or their value. But a merely irregular exercise of power, as a sub-pledge(m) or a premature sale(n) , is not a conversion; it is at most a wrong done to the reversionary interest of an owner out of possession, and that owner must show that he is really damnified(o) .

The technical distinction between an action of detinue or trover and a special action on the case here corresponds to the substantial and permanent difference between a wrongful act for which the defendant’s rightful possession is merely the opportunity, and a more or less plausible abuse of the right itself.

The case of a common law lien, which gives no power of disposal at all, is different; there the holder’s only right is to keep possession until his claim is satisfied. If he parts with possession, his right is gone, and his attempted disposal merely wrongful, and therefore he is liable for the full value(p) . But a seller remaining in possession who re-sells before the buyer is in default is liable to the buyer only for the damage really sustained, that is, the amount (if any) by which the market price of the goods, at the time when the seller ought to have delivered them, exceeds the contract price(q) . The seller cannot sue the buyer for the price of the goods, and if the buyer could recover the full value from the seller he would get it without any consideration: the real substance of the cause of action is the breach of contract, which is to be compensated according to the actual damage(r) . A mortgagor having the possession and use of goods under covenants entitling him thereto for a certain time, determinable by default after notice, is virtually a bailee for a term, and, like bailees in general, may be guilty of conversion by an absolute disposal of the goods; and so may assignees claiming through him with no better title than his own; the point being, as in the other cases, that the act is entirely inconsistent with the terms of the bailment(s) . One may be allowed to doubt, with Lord Blackburn, whether these fine distinctions have done much good, and to wish “it had been originally determined that even in such cases the owner should bring a special action on the case and recover the damage which he actually sustained”(t) . Certainly the law would have been simpler, perhaps it would have been juster. It may not be beyond the power of the House of Lords or the Court of Appeal to simplify it even now; but our business is to take account of the authorities as they stand. And, as they stand, we have to distinguish between—

• (i.) Ordinary cases of conversion where the full value can be recovered:
• (ii.) Cases where there is a conversion but only the plaintiff’s actual damage can be recovered:
• (iii.) Cases where there is a conversion but only nominal damages can be recovered; but such cases are anomalous, and depend on the substantial cause of action being the breach of a contract between the parties; it seems doubtful whether they ought ever to have been admitted:
• (iv.) Cases where there is not a conversion, but an action (formerly a special or innominate action on the case) lies to recover the actual damage.

Conversion by estoppel. A man may be liable by estoppel as for the conversion of goods which he has represented to be in his possession or control, although in fact they were not so at any time when the plaintiff was entitled to possession(u) . And he may be liable for conversion by refusal to deliver, when he has had possession and has wrongfully delivered the goods to a person having no title. He cannot deliver to the person entitled when the demand is made, but, having disabled himself by his own wrong, he is in the same position as if he still had the goods and refused to deliver(x) .

VI.—

Injuries between Tenants in Common.

Trespasses between tenants in common. As between tenants in common of either land or chattels there cannot be trespass unless the act amounts to an actual ouster, i.e. dispossession. Short of that “trespass will not lie by the one against the other so far as the land is concerned”(y) . In the same way acts of legitimate use of the common property cannot become a conversion through subsequent misappropriation, though the form in which the property exists may be wholly converted, in a wider sense, into other forms. There is no wrong to the co-tenant’s right of property until there is an act inconsistent with the enjoyment of the property by both. For every tenant or owner in common is equally entitled to the occupation and use of the tenement or property(z) ; he can therefore become a trespasser only by the manifest assumption of an exclusive and hostile possession. It was for some time doubted whether even an actual expulsion of one tenant in common by another were a trespass; but the law was settled, in the latest period of the old forms of pleading, that it is(a) . At first sight this seems an exception to the rule that a person who is lawfully in possession cannot commit trespass: but it is not so, for a tenant in common has legal possession only of his own share. Acts which involve the destruction of the property held in common, such as digging up and carrying away the soil, are deemed to include ouster(b) ; unless, of course, the very nature of the property (a coal-mine for example) be such that the working out of it is the natural and necessary course of use and enjoyment, in which case the working is treated as rightfully undertaken for the benefit of all entitled, and there is no question of trespass to property, but only, if dispute arises, of accounting for the proceeds(c) .

The normal rights of co-owners as to possession and use may be modified by contract. One of them may thus have the exclusive right to possess the chattel, and the other may have temporary possession or custody, as his bailee or servant, without the power of conferring any possessory right on a third person even as to his own share. In Nyberg v. Handelaar(d) , A. had sold a half share of a valuable chattel to B., on the terms that A. should retain possession until the chattel (a gold enamel box) could be sold for their common benefit. Afterwards A. let B. have the box to take it to an auction room. Then B., thus having manual possession of the box, delivered it to Z. by way of pledge for a debt of his own. The Court of Appeal held that Z. had no defence to an action by A. The judgments proceed on the assumption that B., while remaining owner in common as to half the property, had acquired possession only as bailee for a special purpose, and his wrongful dealing with it determined the bailment, and re-vested A.’s right to immediate possession(e) .

VII.—

Extended Protection of Possession.

Rights of de facto possessor against strangers. An important extension of legal protection and remedies has yet to be noticed. Trespass and other violations of possessory rights can be committed not only against the person who is lawfully in possession, but against any person who has legal possession, whether rightful in its origin or not, so long as the intruder cannot justify his act under a better title. A mere stranger cannot be heard to say that one whose possession he has violated was not entitled to possess. Unless and until a superior title or justification is shown, existing legal possession is not only presumptive but conclusive evidence of the right to possess. Sometimes mere detention may be sufficient: but on principle it seems more correct to say that physical control or occupation is prima facie evidence that the owner is in exercise (on his own behalf or on that of another) of an actual legal possession, and then, if the contrary does not appear, the incidents of legal possession follow. The practical result is that an outstanding claim of a third party (jus tertii, as it is called) cannot be set up to excuse either trespass or conversion: “against a wrong-doer, possession is a title”: “any possession is a legal possession against a wrong-doer”: or, as the Roman maxim runs, “adversus extraneos vitiosa possessio prodesse solet”(f) . As regards real property, a possession commencing by trespass can be defended against a stranger not only by the first wrongful occupier, but by those claiming through him; in fact it is a good root of title as against every one except the person really entitled(g) ; and ultimately, by the operation of the Statutes of Limitation, it may become so as against him also.

The authorities do not clearly decide, but seem to imply, that it would make no difference if the de facto possession violated by the defendant were not only without title, but obviously wrongful. But the rule is in aid of de facto possession only. It will not help a claimant who has been in possession but has been dispossessed in a lawful manner and has not any right to possess(h) .

This rule in favour of possessors is fundamental in both civil and criminal jurisdiction. It is indifferent for most practical purposes whether we deem the reason of the law to be that the existing possession is prima facie evidence of ownership or of the right to possess—“the presumption of law is that the person who has possession has the property”(i) :—or, that for the sake of public peace and security, and as “an extension of that protection which the law throws around the person”(k) , the existing possession is protected, without regard to its origin, against all men who cannot make out a better right:—or say(l) that the law protects possession for the sake of true owners, and to relieve them from the vexatious burden of continual proof of title, but cannot do this effectually without protecting wrongful possessors also. Such considerations may be guides and aids in the future development of the law, but none of them will adequately explain how or why it came to be what it is.

Rights of owner entitled to resume possession. Again, as de facto possession is thus protected, so de jure possession—if by that term we may designate an immediate right to possess when separated from actual legal possession—was even under the old system of pleading invested with the benefit of strictly possessory remedies; that is, an owner who had parted with possession, but was entitled to resume it at will, could sue in trespass for a disturbance by a stranger. Such is the case of a landlord where the tenancy is at will(m) , or of a bailor where the bailment is revocable at will, or on a condition that can be satisfied at will; which last case includes that of a trustee of chattels remaining in the control and enjoyment of the cestui que trust, for the relation is that of bailment at will as regards the legal interest(n) . In this way the same act may be a trespass both against the actual possessor and against the person entitled to resume possession. “He who has the property may have a writ of trespass, and he who has the custody another writ of trespass”(o) . “If I let my land at will, and a stranger enters and digs in the land, the tenant may bring trespass for his loss, and I may bring trespass for the loss and destruction of my land”(m) . And a lessor or bailor at will might have an action of trespass vi et armis against the lessee or bailee himself where the latter had abused the subject-matter in a manner so inconsistent with his contract as to amount to a determination of the letting or bailment. “If tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee. As if I lend to one my sheep to tathe his land, or my oxen to plow the land, and he killeth my cattle, I may well have an action of trespass against him notwithstanding the lending”(p) .

An exclusive right of appropriating things in which property is acquired only by capture is on the same footing in respect of remedies as actual possession(q) .

Rights of derivative possessors. Derivative possession is equally protected, through whatever number of removes it may have to be traced from the owner in possession, who (by modern lawyers at any rate) is assumed as the normal root of title. It may happen that a bailee delivers lawful possession to a third person, to hold as under-bailee from himself, or else as immediate bailee from the true owner: nay more, he may re-deliver possession to the bailor for a limited purpose, so that the bailor has possession and is entitled to possess, not in his original right, but in a subordinate right derived from his own bailee(r) . Such a right, while it exists, is as fully protected as the primary right of the owner would have been, or the secondary right of the bailee would be.

Possession derived through trespasser. Troublesome questions were raised under the old law by the position of a person who had got possession of goods through delivery made by a mere trespasser or by an originally lawful possessor acting in excess of his right. One who receives from a trespasser, even with full knowledge, does not himself become a trespasser against the true owner, as he has not violated an existing lawful possession(s) . The best proof that such is the law is the existence of the offence of receiving stolen goods as distinct from theft; if receiving from a trespasser made one a trespasser, the receipt of stolen goods with the intention of depriving the true owner of them would have been larceny at common law. Similarly where a bailee wrongfully delivers the goods over to a stranger; though the bailee’s mere assent will not prevent a wrongful taking by the stranger from being a trespass(t) .

The old law of real property was even more favourable to persons claiming through a disseisor; but it would be useless to give details here. At the present day the old forms of action are almost everywhere abolished; and it is quite certain that the possessor under a wrongful title, even if he is himself acting in good faith, is by the common law liable in some form to the true owner(u) , and in the case of goods must submit to recapture if the owner can and will retake them(x) . In the theoretically possible case of a series of changes of possession by independent trespasses, it would seem that every successive wrong-doer is a trespasser only as against his immediate predecessor, whose de facto possession he disturbed: though as regards land exceptions to this principle, the extent of which is not free from doubt, were introduced by the doctrine of “entry by relation” and the practice as to recovery of mesne profits. But this too is now, as regards civil liability, a matter of mere curiosity(y) .

VIII.—

Wrongs to Easements, etc.

Violation of incorporeal rights. Easements and other incorporeal rights in property, “rather a fringe to property than property itself” as they have been ingeniously called(z) , are not capable in an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession, and gives no possessory right before the due time is fulfilled: “a man who has used a way ten years without title cannot sue even a stranger for stopping it”(a) . The only possession that can come in question is the possession of the dominant tenement itself, the texture of legal rights and powers to which the “fringe” is incident. Nevertheless disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation or proof of specific damage(b) ; the action was on the case under the old forms of pleading, since trespass was technically impossible, though the act of disturbance might happen to include a distinct trespass of some kind, for which trespass would lie at the plaintiff’s option.

To consider what amounts to the disturbance of rights in re aliena is in effect to consider the nature and extent of the rights themselves(c) , and this does not enter into our plan, save so far as such matters come under the head of Nuisance, to which a separate chapter is given.

Franchises and incorporeal rights of the like nature, as patent and copyrights, present something more akin to possession, for their essence is exclusiveness; and indeed trespass was the proper remedy for the disturbance of a strictly exclusive right. “Trespass lies for breaking and entering a several fishery, though no fish are taken.” And so it has always been held of a free warren(d) . But the same remark applies; in almost every disputed case the question is of defining the right itself, or the conditions of the right(c) ; and de facto enjoyment does not even provisionally create any substantive right, but is material only as an incident in the proof of title.

IX.—

Grounds of Justification and Excuse.

Licence. Acts of interference with land or goods may be justified by the consent of the occupier or owner; or they may be justified or excused (sometimes excused rather than justified, as we shall see) by the authority of the law. That consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful, is called a licence. There may be licences not affecting the use of property at all, and on the other hand a licence may be so connected with the transfer of property as to be in fact inseparable from it.

“A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a man’s park, to come into his house, are only actions which without licence had been unlawful. But a licence to hunt in a man’s park and carry away the deer killed to his own use, to cut down a tree in a man’s ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down they are grants. So to licence a man to eat my meat, or to fire the wood in my chimney to warm him by; as to the actions of eating, firing my wood and warming him, they are licences: but it is consequent necessarily to those actions that my property be destroyed in the meat eaten, and in the wood burnt. So as in some cases by consequent and not directly, and as its effect, a dispensation or licence may destroy and alter property”(e) .

Revocation of licence: distinction when coupled with interest. Generally speaking, a licence is a mere voluntary suspension of the licensor’s right to treat certain acts as wrongful, comes to an end by any transfer of the property with respect to which the licence is given(f) , and is revoked by signifying to the licensee that it is no longer the licensor’s will to allow the acts permitted by the licence. The revocation of a licence is in itself no less effectual though it may be a breach of contract. If the owner of land or a building admits people thereto on payment, as spectators of an entertainment or the like, it may be a breach of contract to require a person who has duly paid his money and entered to go out, but a person so required has no title to stay, and if he persists in staying he is a trespasser. His only right is to sue on the contract(f) : when, indeed, he may get an injunction, and so be indirectly restored to the enjoyment of the licence(g) . But if a licence is part of a transaction whereby a lawful interest in some property, besides that which is the immediate subject of the licence, is conferred on the licensee, and the licence is necessary to his enjoyment of that interest, the licence is said to be “coupled with an interest” and cannot be revoked until its purpose is fulfilled: nay more, where the grant obviously cannot be enjoyed without an incidental licence, the law will annex the necessary licence to the grant. “A mere licence is revocable; but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it so as to defeat his grant to which it was incident”(h) . Thus the sale of a standing crop or of growing trees imports a licence to the buyer to enter on the land so far and so often as reasonably necessary for cutting and carrying off the crop or the trees, and the licence cannot be revoked until the agreed time, if any, or otherwise a reasonable time for that purpose has elapsed(i) . The diversity to be noted between licence and grant is of respectable antiquity. In 1460 the defendant in an action of trespass set up a right of common; the plaintiff said an excessive number of beasts were put in; the defendant said this was by licence of the plaintiff; to which the plaintiff said the licence was revoked before the trespass complained of; Billing, then king’s serjeant, afterwards Chief Justice of the King’s Bench under Edward IV., argued that a licence may be revoked at will even if expressed to be for a term, and this seems to have so much impressed the Court that the defendant, rather than take the risk of demurring, alleged a grant: the reporter’s note shows that he thought the point new and interesting(k) . But a licensee who has entered or placed goods on land under a revocable licence is entitled to have notice of revocation and a reasonable time to quit or remove his goods(l) .

Executed licences. Again, if the acts licensed be such as have permanent results, as in altering the condition of land belonging to the licensee in a manner which, but for the licence, would be a nuisance to adjacent land of the licensor; there the licensor cannot, by merely revoking the licence, cast upon the licensee the burden of restoring the former state of things. A licence is in its nature revocable(m) , but the revocation will not make it a trespass to leave things as the execution of the licence has made them. In this sense it is said that “a licence executed is not countermandable”(n) . When a licence to do a particular thing once for all has been executed, there is nothing left to revoke.

Whether and how far the licensor can get rid of the consequences if he mislikes them afterwards is another and distinct inquiry, which can be dealt with only by considering what those consequences are. He may doubtless get rid of them at his own charges if he lawfully can; but he cannot call on the licensee to take any active steps unless under some right expressly created or reserved.

For this purpose, therefore, there is a material difference between “a licence to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like,” which may be countermanded without putting the licensee in any worse position than before the licence was granted, and “a licence to construct a work which is attended with expense to the party using the licence, so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss”(o) . And this rule is as binding on a licensor’s successors in title as on himself(p) . But it is not applicable (in this country at any rate) to the extent of creating in or over land of the licensor an easement or other interest capable of being created only by deed(q) .

In those cases, however, the licensee is not necessarily without remedy, for the facts may be such as to confer on him an interest which can be made good by way of equitable estoppel(r) . This form of remedy has been extensively applied in the United States to meet the hardship caused by untimely revocation of parol licences to erect dams, divert water-courses, and the like(s) .

The case of a contract to grant an easement or other interest in land must be carefully distinguished when it occurs(t) .

Expression of licensor’s will. The grant or revocation of a licence may be either by express words or by any act sufficiently signifying the licensor’s will: if a man has leave and licence to pass through a certain gate, the licence is as effectually revoked by locking the gate as by a formal notice(u) . In the common intercourse of life between friends and neighbours tacit licences are constantly given and acted on.

Distinction from grant as regards strangers. We shall have something to say in another connexion(x) of the rights—or rather want of rights—of a “bare licensee.” Here we may add that a licence, being only a personal right—or rather a waiver of the licensor’s rights—is not assignable, and confers no right against any third person. If a so-called licence does operate to confer an exclusive right capable of being protected against a stranger, it must be that there is more than a licence, namely the grant of an interest or easement. And the question of grant or licence may further depend on the question whether the specified mode of use or enjoyment is known to the law as a substantive right or interest(y) : a question that may be difficult. But it is submitted that on principle the distinction is clear. I call at a friend’s house; a contractor who is doing some work on adjacent land has encumbered my friend’s drive with rubbish; can it be said that this is a wrong to me without special damage? With such damage, indeed, it is(z) , but only because a stranger cannot justify that which the occupier himself could not have justified. The licence is material only as showing that I was not a wrong-doer myself; the complaint is founded on actual and specific injury, not on a quasi trespass. Our law of trespass is not so eminently reasonable that one need be anxious to extend to licensees the very large rights which it gives to owners and occupiers.

Justification by law. As to justification by authority of the law, this is of two kinds:

1. In favour of a true owner against a wrongful possessor; under this head come re-entry on land and retaking of goods.

2. In favour of a paramount right conferred by law against the rightful possessor; which may be in the execution of legal process, in the assertion or defence of private right, or in some cases by reason of necessity.

Re-entry: herein of forcible entry. A person entitled to the possession of lands or tenements does no wrong to the person wrongfully in possession by entering upon him; and it is said that by the old common law he might have entered by force. But forcible entry is an offence under the statute of 5 Ric. II. (ad 1381), which provided that “none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law, and in such case not with strong hand nor with multitude of people, but only in peaceable and easy [the true reading of the Parliament Roll appears to be ‘lisible, aisee, & peisible’] manner.” This statute is still in force here, and “has been re-enacted in the several American States, or recognized as a part of the common law”(a) . The offence is equally committed whether the person who enters by force is entitled to possession or not: but opinions have differed as to the effect of the statute in a court of civil jurisdiction. It has been held that a rightful owner who enters by force is not a trespasser, as regards the entry itself, but is liable for any independent act done by him in the course of his entry which is on the face of it wrongful, and could be justified only by a lawful possession(b) ; and, it should seem, for any other consequential damage, within the general limit of natural and probable consequence, distinguishable from the very act of eviction. This is a rather subtle result, and is further complicated by the rule of law which attaches legal possession to physical control, acquired even for a very short time, so it be “definite and appreciable”(c) , by the rightful owner. A., being entitled to immediate possession (say as a mortgagee having the legal estate) effects an actual entry by taking off a lock, without having given any notice to quit to B. the precarious occupier; thus, “in a very rough and uncourteous way,” that is, peaceably but only just peaceably, he gets possession: once gotten, however, his possession is both legal and rightful. If therefore B. turns him out again by force, there is reasonable and probable cause to indict B. for a forcible entry. So the House of Lords has decided(d) . Nevertheless, according to later judgments, delivered indeed in a court of first instance, but one of them after consideration, and both learned and careful, A. commits a trespass if, being in possession by a forcible entry, he turns out B.(e) . Moreover, the old authorities say that a forcible turning out of the person in present possession is itself a forcible entry, though the actual ingress were without violence. “He that entereth in a peaceable show (as the door being either open or but closed with a latch only), and yet when he is come in useth violence, and throweth out such as he findeth in the place, he (I say) shall not be excused: because his entry is not consummate by the only putting of his foot over the threshold, but by the action and demeanour that he offereth when he is come into the house”(f) . And under the old statutes and practice, “if A. shall disseise B. of his land, and B. do enter again, and put out A. with force, A. shall be restored to his possession by the help of the justices of the peace, although his first entry were utterly wrongful: and (notwithstanding the same restitution is made) yet B. may well have an assize against A., or may enter peaceably upon him again”(g) .

But old authorities also distinctly say that no action is given by the statute to a tenant who is put out with force by the person really entitled, “because that that entry is not any disseisin of him”(h) . There is nothing in them to countenance the notion of the personal expulsion being a distinct wrong. The opinion of Parke and Alderson was in accordance with this(i) , and the decision from which they dissented is reconcileable with the old books only by the ingenious distinction—certainly not made by the majority(k) —of collateral wrongs from the forcible eviction itself. The correct view seems to be that the possession of a rightful owner gained by forcible entry is lawful as between the parties, but he shall be punished for the breach of the peace by losing it, besides making a fine to the king. If the latest decisions are correct, the dispossessed intruder might nevertheless have had a civil remedy in some form (by special action on the case, it would seem) for incidental injuries to person or goods, provided that they were incidental to the unlawful force and not to the entry in itself(l) . This refinement does not appear to have occurred to any of the old pleaders.

Fresh reentry on trespasser. A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner. His condition is quite different from that of a rightful owner out of possession, who can recover legal possession by any kind of effective interruption of the intruder’s actual and exclusive control. A person who had been dismissed from the office of schoolmaster and had given up possession of a room occupied by him in virtue of his office, but had afterwards re-entered and occupied for eleven days, was held not entitled to sue in trespass for an expulsion by the trustees at the end of that time. “A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can without delay reinstate himself in his former possession”(l) . There must be not only occupation, but effective occupation, for the acquisition of possessory rights. “In determining whether a sufficient possession was taken, much more unequivocal acts must be proved when the person who is said to have taken possession is a mere wrong-doer than when he has a right under his contract to take possession”(m) . And unless and until possession has been acquired, the very continuance of the state of things which constitutes the trespass is a new trespass at every moment(n) . We shall see that this has material consequences as regards the determination of a cause of excuse.

Recaption of goods. As regards goods which have been wrongfully taken, the taker is a trespasser all the time that his wrongful possession continues, so much so that “the removal of goods, wrongfully taken at first, from one place to another, is held to be a several trespass at each place”(o) , and a supervening animus furandi at any moment of the continuing trespassory possession will complete the offence of larceny and make the trespasser a thief(p) . Accordingly the true owner may retake the goods if he can, even from an innocent third person into whose hands they have come; and, as there is nothing in this case answering to the statutes of forcible entry, he may use (it is said) whatever force is reasonably necessary for the recaption(q) . He may also enter on the first taker’s land for the purpose of recapture if the taker has put the goods there(r) ; for they came there by the occupier’s own wrong(s) ; but he cannot enter on a third person’s land unless, it is said, the original taking was felonious(t) , or perhaps, as it has been suggested, after the goods have been claimed and the occupier of the land has refused to deliver them(u) . Possession is much more easily changed in the case of goods than in the case of land; a transitory and almost instantaneous control has often, in criminal courts, been held to amount to asportation. The difference may have been sharpened by the rules of criminal justice, but in a general way it lies rather in the nature of the facts than in any arbitrary divergence of legal principles in dealing with immoveable and moveable property.

Process of law: breaking doors. One of the most important heads of justification under a paramount right is the execution of legal process. The mere taking and dealing with that which the law commands to be so taken and dealt with, be it the possession of land or goods, or both possession and property of goods, is of course no wrong; and in particular if possession of a house cannot be delivered in obedience to a writ without breaking the house open, broken it must be(x) . It is equally settled on the other hand that “the sheriff must at his peril seize the goods of the party against whom the writ issues,” and not any other goods which are wrongly supposed to be his; even unavoidable mistake is no excuse(y) . More special rules have been laid down as to the extent to which private property which is not itself the immediate object of the process may be invaded in executing the command of the law. The broad distinction is that outer doors may not be broken in execution of process at the suit of a private person; but at the suit of the Crown, or in execution of process for contempt of a House of Parliament(z) , or of a Superior Court, they may, and must; and this, in the latter case, though the contempt consist in disobedience to an order made in a private suit(a) . The authorities referred to will guide the reader, if desired, to further details.

Constables, revenue officers, and other public servants, and in some cases private persons, are authorized by divers statutes to enter on lands and into houses for divers purposes, with a view to the discovery or prevention of crime, or of frauds upon the public revenue. We shall not attempt to collect these provisions.

Distress. The right of distress, where it exists, justifies the taking of goods from the true owner: it seems that the distrainor, unlike a sheriff taking goods in execution, does not acquire possession, the goods being “in the custody of the law”(b) . Most of the practical importance of the subject is in connexion with the law of landlord and tenant, and we shall not enter here on the learning of distress for rent and other charges on land(c) .

Damage feasant. Distress damage feasant is the taking by an occupier of land of chattels (commonly but not necessarily animals)(d) found encumbering or doing damage on the land, either to the land itself or to chattels on the land(e) . The right given by the law is therefore a right of self-protection against the continuance of a trespass already commenced. It must be a manifest trespass; distress damage feasant is not allowed against a party having any colour of right, e.g., one commoner cannot distrain upon another commoner for surcharging(f) . And where a man is lawfully driving cattle along a highway, and some of them stray from it into ground not fenced off from the way, he is entitled to a reasonable time for driving them out before the occupier may distrain, and is excused for following them on the land for that purpose. What is reasonable time is a question of fact, to be determined with reference to all the circumstances of the transaction(g) . And where cattle stray by reason of the defect of fences which the occupier is bound to repair, there is no actionable trespass and no right to distrain until the owner of the cattle has notice(h) . In one respect distress damage feasant is more favoured than distress for rent. “For a rent or service the lord cannot distreine in the night, but in the day time: and so it is of a rent charge. But for damage feasant one may distreine in the night, otherwise it may be the beasts will be gone before he can take them”(i) . But in other respects “damage feasant is the strictest distress that is, for the thing distrained must be taken in the very act,” and held only as a pledge for its own individual trespass, and other requirements observed. Distress damage feasant suspends the right of action for the trespass(k) .

The right of distress damage feasant does not exclude the right to chase out trespassing beasts at one’s election(l) , or to remove inanimate chattels and replace them on the owner’s land(m) .

Entry of distrainor. Entry to take a distress must be peaceable and without breaking in; it is not lawful to open a window, though not fastened, and enter thereby(n) . Distrainors for rent have been largely holpen by statute, but the common law has not forgotten its ancient strictness where express statutory provision is wanting.

In connexion with distress the Acts for the prevention of cruelty to animals have introduced special justifications: any one may enter a pound to supply necessary food and water to animals impounded, and there is an eventual power of sale, on certain conditions, to satisfy the cost thereof(o) .

Trespasses justified by necessity. Finally there are cases in which entry on land without consent is excused by the necessity of self-preservation, or the defence of the realm(p) , or an act of charity preserving the occupier from irremediable loss, or sometimes by the public safety or convenience, as in putting out fires, or as where a highway is impassable, and passing over the land on either side is justified; but in this last-mentioned case it is perhaps rather a matter of positive common right than of excuse(q) . Justifications of this kind are discussed in a case of the early sixteenth century, where a parson sued for trespass in carrying away his corn, and the defendant justified on the ground that the corn had been set out for tithes and was in danger of being spoilt, wherefore he took it and carried it to the plaintiff’s barn to save it: to which the plaintiff demurred. Kingsmill J. said that a taking without consent must be justified either by public necessity, or “by reason of a condition in law”; neither of which grounds is present here; taking for the true owner’s benefit is justifiable only if the danger be such that he will lose his goods without remedy if they are not taken. As examples of public necessity, he gives pulling down some houses to save others (in case of fire, presumably)(r) , and entering in war time to make fortifications. “The defendant’s intention,” said Rede C. J., “is material in felony but not in trespass; and here it is not enough that he acted for the plaintiff’s good.” A stranger’s beasts might have spoilt the corn, but the plaintiff would have had his remedy against their owner. “So where my beasts are doing damage in another man’s land, I may not enter to drive them out; and yet it would be a good deed to drive them out so that they do no more damage; but it is otherwise if another man drive my horses into a stranger’s land where they do damage, there I may justify entry to drive them out, because their wrong-doing took its beginning in a stranger’s wrong. But here, because the party might have his remedy if the corn were anywise destroyed, the taking was not lawful. And it is not like the case where things are in danger of being lost by water, fire, or such like, for there the destruction is without remedy against any man. And so this plea is not good”(s) . Fisher J. concurred. There is little or nothing to be added to the statement of the law, though it may be doubted whether it is now likely ever to be strictly applied. Excuse of this kind is always more readily allowed if the possessor of the land has created or contributed to the necessity by his own fault, as where the grantor of a private right of way has obstructed it so that the way cannot be used except by deviation on his adjacent land(t) .

Foxhunting not privileged. At one time it was supposed that the law justified entering on land in fresh pursuit of a fox, because the destruction of noxious animals is to be encouraged; but this is not the law now. If it ever was, the reason for it has long ceased to exist(u) . Practically foxhunters do well enough (in this part of the United Kingdom) with licence express or tacit.

Trespass ab initio. There is a curious and rather subtle distinction between justification by consent and justification or excuse under authority of law. A possessor by consent, or a licensee, may commit a wrong by abusing his power, but (subject to the peculiar exception in the case of letting or bailment at will mentioned above)(x) he is not a trespasser. If I lend you a horse to ride to York, and you ride to Carlisle, I shall not have (under the old forms of pleading) a general action of trespass, but an action on the case. So if a lessee for years holds over, he is not a trespasser, because his entry was authorized by the lessor(y) . But “when entry, authority, or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio,” that is, the authority or justification is not only determined, but treated as if it had never existed. “The law gives authority to enter into a common inn or tavern(z) ; so to the lord to distrain; to the owner of the ground to distrain damage feasant; to him in reversion to see if waste be done; to the commoner to enter upon the land to see his cattle; and such like . . . . But if he who enters into the inn or tavern doth a trespass, as if he carries away anything; or if the lord who distrains for rent(a) , or the owner for damage feasant, works or kills the distress; or if he who enters to see waste breaks the house or stays there all night; or if the commoner cuts down a tree; in these and the like cases the law adjudges that he entered for that purpose, and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio”(b) . Or to state it less artificially, the effect of an authority given by law without the owner’s consent is to protect the person exercising that authority from being dealt with as a trespasser so long—but so long only—as the authority is not abused. He is never doing a fully lawful act: he is rather an excusable trespasser, and becomes a trespasser without excuse if he exceeds his authority(c) : “it shall be adjudged against the peace”(d) . This doctrine has been applied in modern times to the lord of a manor taking an estray(e) , and to a sheriff remaining in a house in possession of goods taken in execution for an unreasonably long time(f) . It is applicable only when there has been some kind of active wrong-doing; not when there has been a mere refusal to do something one ought to do—as to pay for one’s drink at an inn(g) or deliver up a distress upon a proper tender of the rent due(h) . “If I distrain for rent, and afterwards the termor offers me the rent and the arrears, and I withhold the distress from him, yet he shall not have an action of trespass against me, but detinue, because it was lawful at the beginning, when I took the distress; but if I kill them or work them in my own plow, he shall have an action of trespass”(i) . But it is to be observed that retaining legal possession after the expiration of authority has been held equivalent to a new taking, and therefore a positive act: hence (it seems) the distinction between the liability of a sheriff, who takes possession of the execution debtor’s goods, and of a distrainor; the latter only takes the goods into “the custody of the law,” and “the goods being in the custody of the law, the distrainor is under no legal obligation actively to re-deliver them”(k) . Formerly these refinements were important as determining the proper form of action. Under the Judicature Acts they seem to be obsolete for most purposes of civil liability, though it is still possible that a question of the measure of damages may involve the point of trespass ab initio. Thus in the case of the distrainor refusing to give up the goods, there was no doubt that trover or detinue would lie(l) : so that under the present practice there would be nothing to discuss.

X.—

Remedies.

Taking or retaking goods. The only peculiar remedy available for this class of wrongs is distress damage feasant, which, though an imperfect remedy, is so far a remedy that it suspends the right of action for the trespass. The distrainor “has an adequate satisfaction for his damage till he lose it without default in himself;” in which case he may still have his action(m) . It does not seem that the retaking of goods taken by trespass extinguishes the true owner’s right of action, though it would of course affect the amount of damages.

Costs where damages nominal. Actions for merely trifling trespasses were formerly discouraged by statutes providing that when less than 40s. were recovered no more costs than damages should be allowed except on the judge’s certificate that the action was brought to try a right, or that the trespass was “wilful and malicious:” yet a trespass after notice not to trespass on the plaintiff’s lands was held to be “wilful and malicious,” and special communication of such notice to the defendant was not required(n) . But these and many other statutes as to costs were superseded by the general provisions of the Judicature Acts, and the rule that a plaintiff recovering less than 10l. damages in an action “founded on tort” gets costs only on the County Court scale, unless by special certificate or order(o) ; and they are now expressly repealed(p) .

The Court is therefore not bound by any fixed rule; but it might possibly refer to the old practice for the purpose of informing its discretion. It seems likely that the common practice of putting up notice boards with these or the like words: “Trespassers will be prosecuted according to law”—words which are “if strictly construed, a wooden falsehood”(q) , simple trespass not being punishable in courts of criminal jurisdiction—was originally intended to secure the benefit of these same statutes in the matter of costs. At this day it may be a question whether the Court would not be disposed to regard the threat of an impossible criminal prosecution as a fraud upon the public, and rather a cause for depriving the occupier of costs than for awarding them(r) . Several better and safer forms of notice are available; a common American one, “no trespassing,” is as good as any.

“Nothing on earth,” said Sir Walter Scott, “would induce me to put up boards threatening prosecution, or cautioning one’s fellow-creatures to beware of man-traps and spring-guns. I hold that all such things are not only in the highest degree offensive and hurtful to the feelings of people whom it is every way important to conciliate, but that they are also quite inefficient”(s) . It must be remembered that Scott never ceased to be a lawyer as well as a man of letters. It was partly the legal knowledge and tastes displayed in the Waverley Novels that identified him in the eyes of the best critics as the author.

Injunctions. An injunction can be granted to restrain a continuing trespass, such as the laying and keeping of waterpipes under a man’s ground without either his consent or justification by authority of law; and the plaintiff need not prove substantial damage to entitle himself to this form of relief(t) . On the other hand the right to an injunction does not extend beyond the old common-law right to sue for damages: a reversioner cannot have an injunction without showing permanent injury to the reversion(u) .

Of course it may be a substantial injury, though without any direct damage, to do acts on another man’s land for one’s own profit without his leave; for he is entitled to make one pay for the right to do them, and his power of withholding leave is worth to him precisely what it is worth to the other party to have it(x) .

Effect of changes in procedure. Before the Common Law Procedure Acts an owner, tenant, or reversioner who had suffered undoubted injury might be defeated by bringing his action in the wrong form, as where he brought trespass and failed to show that he was in present possession at the time of the wrong done(y) . But such cases can hardly occur now.

CHAPTER X.

NUISANCE.

Nuisance: public or private.Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property or, in some cases, in the exercise of a common right. The wrong is in some respects analogous to trespass, and the two may coincide, some kinds of nuisance being also continuing trespasses. The scope of nuisance, however, is wider. A nuisance may be public or private.

Public or common nuisances affect the Queen’s subjects at large, or some considerable portion of them, such as the inhabitants of a town; and the person therein offending is liable to criminal prosecution(a) . A public nuisance does not necessarily create a civil cause of action for any person; but it may do so under certain conditions. A private nuisance affects only one person or a determinate number of persons, and is the ground of civil proceedings only. Generally it affects the control, use, or enjoyment of immoveable property; but this is not a necessary element according to the modern view of the law. Certainly the owner or master of a ship lying in harbour, for example, might be entitled to complain of a nuisance created by an occupier on the wharf or shore which made the ship uninhabitable.

Private right of action for public nuisance. We shall first consider in what cases a common nuisance exposes the person answerable for it to civil as well as criminal process, in other words, is actionable as well as indictable.

“A common nuisance is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all her Majesty’s subjects”(b) . Omission to repair a highway, or the placing of obstructions in a highway or public navigable river, is a familiar example.

In order to sustain an indictment for nuisance it is enough to show that the exercise of a common right of the Queen’s subjects has been sensibly interfered with. It is no answer to say that the state of things causing the obstruction is in some other way a public convenience. Thus it is an indictable nuisance at common law to lay down a tramway in a public street to the obstruction of the ordinary traffic, although the people who use the cars and save money and time by them may be greater in number than those who are obstructed in their use of the highway in the manner formerly accustomed(c) .

It is also not material whether the obstruction interferes with the actual exercise of the right as it is for the time being exercised. The public are entitled, for example, to have the whole width of a public road kept free for passing and repassing, and an obstruction is not the less a nuisance because it is on a part of the highway not commonly used, or otherwise leaves room enough for the ordinary amount of traffic(d) .

Further discussion and illustration of what amounts to an indictable nuisance must be sought in works on the criminal law.

Special damage must be shown. A private action can be maintained in respect of a public nuisance by a person who suffers thereby some particular loss or damage beyond what is suffered by him in common with all other persons affected by the nuisance. Interference with a common right is not of itself a cause of action for the individual citizen. Particular damage(e) consequent on the interference is. If a man digs a trench across a highway, I cannot sue him simply because the trench prevents me from passing along the highway as I am entitled to do; for that is an inconvenience inflicted equally on all men who use the road. But if, while I am lawfully passing along after dark, I fall into this trench so that I break a limb, or goods which I am carrying are spoiled, I shall have my action; for this is a particular damage to myself resulting from the common nuisance, and distinct from the mere obstruction of the common right of passage which constitutes that nuisance(f) . If a trader is conveying his goods in barges along a navigable river, and by reason of the navigation being unlawfully obstructed has to unload his merchandise and carry it overland at an increased expense, this is a particular damage which gives him a right of action(g) . Though it is a sort of consequence likely to ensue in many individual cases, yet in every case it is a distinct and specific one. Where this test fails, there can be no particular damage in a legal sense. If the same man is at divers times delayed by the same obstruction, and incurs expense in removing it, this is not of itself sufficient particular damage; the damage, though real, is “common to all who might wish, by removing the obstruction, to raise the question of the right of the public to use the way”(h) . The diversion of traffic or custom from a man’s door by an obstruction of a highway, whereby his business is interrupted, and his profits diminished, seems to be too remote a damage to give him a right of private action(i) , unless indeed the obstruction is such as materially to impede the immediate access to the plaintiff’s place of business more than other men’s, and amounts to something like blocking up his doorway(k) . Whether a given case falls under the rule or the exception must depend on the facts of that case: and what is the true principle, and what the extent of the exception, is open to some question(l) . If horses and waggons are kept standing for an unreasonable time in the highway opposite a man’s house, so that the access of customers is obstructed, the house is darkened, and the people in it are annoyed by bad smells, this damage is sufficiently “particular, direct, and substantial” to entitle the occupier to maintain an action(m) .

Private nuisance, what. The conception of private nuisance was formerly limited to injuries done to a man’s freehold by a neighbour’s acts, of which stopping or narrowing rights of way and flooding land by the diversion of watercourses appear to have been the chief species(n) . In the modern authorities it includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without regard to the quality of the tenure(o) . Blackstone’s phrase is “anything done to the hurt or annoyance of the land, tenements or hereditaments of another”(p) —that is, so done without any lawful ground of justification or excuse. The ways in which this may happen are indefinite in number, but fall for practical purposes into certain well recognized classes.

Kinds of nuisance affecting— Some acts are nuisances, according to the old authorities and the course of procedure on which they were founded, which involve such direct interference with the rights of a possessor as to be also trespasses, or hardly distinguishable from trespasses.1. Ownership. “A man shall have an assize of nuisance for building a house higher than his house, and so near his, that the rain which falleth upon that house falleth upon the plaintiff’s house”(q) . And it is stated to be a nuisance if a tree growing on my land overhangs the public road or my neighbour’s land(r) . In this class of cases nuisance means nothing more than encroachment on the legal powers and control of the public or of one’s neighbour. It is generally, though not necessarily(s) , a continuing trespass, for which however, in the days when forms of action were strict and a mistake in seeking the proper remedy was fatal, there was a greater variety and choice of remedies than for ordinary trespasses. Therefore it is in such a case needless to inquire, except for the assessment of damages, whether there is anything like nuisance in the popular sense. Still there is a real distinction between trespass and nuisance even when they are combined: the cause of action in trespass is interference with the right of a possessor in itself, while in nuisance it is the incommodity which is proved in fact to be the consequence, or is presumed by the law to be the natural and necessary consequence, of such interference: thus an overhanging roof or cornice is a nuisance to the land it overhangs because of the necessary tendency to discharge rain-water upon it(t) .

2. Iura in re aliena. Another kind of nuisance consists in obstructions of rights of way and other rights over the property of others. “The parishioners may pull down a wall which is set up to their nuisance in their way to the church”(u) . In modern times the most frequent and important examples of this class are cases of interference with rights to light. Here the right itself is a right not of dominion, but of use; and therefore no wrong is done(v) unless and until there is a sensible interference with its enjoyment, as we shall see hereafter. But it need not be proved that the interference causes any immediate harm or loss. It is enough that a legal right of use and enjoyment is interfered with by conduct which, if persisted in without protest, would furnish evidence in derogation of the right itself(w) .

3. Convenience and enjoyment. A third kind, and that which is most commonly spoken of by the technical name, is the continuous doing of something which interferes with another’s health or comfort in the occupation of his property, such as carrying on a noisy or offensive trade. Continuity is a material factor: merely temporary inconvenience caused to a neighbour by “the execution of lawful works in the ordinary user of land” is not a nuisance(x) .

Measure of nuisance. What amount of annoyance or inconvenience will amount to a nuisance in point of law cannot, by the nature of the question, be defined in precise terms(y) . Attempts have been made to set more or less arbitrary limits to the jurisdiction of the Court, especially in cases of miscellaneous nuisance, as we may call them, but they have failed in every direction.

Injury to health need not be shown. (a) It is not necessary to constitute a private nuisance that the acts or state of things complained of should be noxious in the sense of being injurious to health. It is enough that there is a material interference with the ordinary comfort and convenience of life—“the physical comfort of human existence”—by an ordinary and reasonable standard(z) ; there must be something more than mere loss of amenity(a) , but there need not be positive hurt or disease.

Plaintiff not disentitled by having come to the nuisance. (b) In ascertaining whether the property of the plaintiff is in fact injured, or his comfort or convenience in fact materially interfered with, by an alleged nuisance, regard is had to the character of the neighbourhood and the pre-existing circumstances(b) . But the fact that the plaintiff was already exposed to some inconvenience of the same kind will not of itself deprive him of his remedy. Even if there was already a nuisance, that is not a reason why the defendant should set up an additional nuisance(c) . The fact that other persons are wrong-doers in the like sort is no excuse for a wrong-doer. If it is said “This is but one nuisance among many,” the answer is that, if the others were away, this one remaining would clearly be a wrong; but a man cannot be made a wrong-doer by the lawful acts of third persons, and if it is not a wrong now, a prescriptive right to continue it in all events might be acquired under cover of the other nuisances; therefore it must be wrongful from the first(d) . Neither does it make any difference that the very nuisance complained of existed before the plaintiff became owner or occupier. It was at one time held that if a man came to the nuisance, as was said, he had no remedy(e) ; but this has long ceased to be law as regards both the remedy by damages(f) and the remedy by injunction(g) . The defendant may in some cases justify by prescription, or the plaintiff be barred of the most effectual remedies by acquiescence. But these are distinct and special grounds of defence, and if relied on must be fully made out by appropriate proof.

Further, the wrong and the right of action begin only when the nuisance begins. Therefore if Peter has for many years carried on a noisy business on his own land, and his neighbour John makes a new building on his own adjoining land, in the occupation whereof he finds the noise, vibration, or the like, caused by Peter’s business to be a nuisance, Peter cannot justify continuing his operations as against John by showing that before John’s building was occupied, John or his predecessors in title made no complaint(h) .

Innocent or necessary character per se of offensive occupation is no answer. (c) Again a nuisance is not justified by showing that the trade or occupation causing the annoyance is, apart from that annoyance, an innocent or laudable one. “The building of a lime-kiln is good and profitable; but if it be built so near a house that when it burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it”(i) . “A tan-house is necessary, for all men wear shoes; and nevertheless it may be pulled down if it be erected to the nuisance of another. In like manner of a glass-house; and they ought to be erected in places convenient for them”(j) . So it is an actionable nuisance to keep a pigstye so near my neighbour’s house as to make it unwholesome and unfit for habitation, though the keeping of swine may be needful for the sustenance of man(k) . Learned and charitable foundations are commended in sundry places of our books; but the fact that a new building is being erected by a college for purposes of good education and the advancement of learning will not make it the less a wrong if the sawing of stone by the builders drives a neighbouring inhabitant out of his house.

Convenience of place per se is no answer. (d) Where the nuisance complained of consists wholly or chiefly in damage to property, such damage must be proved as is of appreciable magnitude and apparent to persons of common intelligence; not merely something discoverable only by scientific tests(l) . And acts in themselves lawful and innoxious do not become a nuisance merely because they make a neighbouring house or room less fit for carrying on some particular industry, without interfering with the ordinary enjoyment of life(m) . But where material damage in this sense is proved, or material discomfort according to a sober and reasonable standard of comfort, it is no answer to say that the offending work or manufacture is carried on at a place in itself proper and convenient for the purpose. A right to do something that otherwise would be a nuisance may be established by prescription, but nothing less will serve. Or in other words a place is not in the sense of the law convenient for me to burn bricks in, or smelt copper, or carry on chemical works, if that use of the place is convenient to myself but creates a nuisance to my neighbour(n) .

Modes of annoyance. (e) No particular combination of sources of annoyance is necessary to constitute a nuisance, nor are the possible sources of annoyance exhaustively defined by any rule of law. “Smoke, unaccompanied with noise or noxious vapour, noise alone, offensive vapours alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighbouring property”(o) . The persistent ringing and tolling of large bells(p) , the loud music, shouting, and other noises attending the performances of a circus(q) , the collection of a crowd of disorderly people by a noisy entertainment of music and fireworks(r) , to the grave annoyance of dwellers in the neighbourhood, have all been held to be nuisances and restrained by the authority of the Court. The use of a dwelling-house in a street of dwelling-houses, in an ordinary and accustomed manner, is not a nuisance though it may produce more or less noise and inconvenience to a neighbour. But the conversion of part of a house to an unusual purpose, or the simple maintenance of an arrangement which offends neighbours by noise or otherwise to an unusual and excessive extent, may be an actionable nuisance. Many houses have stables attached to them, but the man who turns the whole ground floor of a London house into a stable, or otherwise keeps a stable so near a neighbour’s living rooms that the inhabitants are disturbed all night (even though he has done nothing beyond using the arrangements of the house as he found them), does so at his own risk(s) .

“In making out a case of nuisance of this character, there are always two things to be considered, the right of the plaintiff, and the right of the defendant. If the houses adjoining each other are so built that from the commencement of their existence it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for which it and all the different parts of it were constructed, then so long as the house is so used there is nothing that can be regarded in law as a nuisance which the other party has a right to prevent. But, on the other hand, if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, showing substantial injury, is entitled to protection”(t) .

Injury common to the plaintiff with others. (f) Where a distinct private right is infringed, though it be only a right enjoyed in common with other persons, it is immaterial that the plaintiff suffered no specific injury beyond those other persons, or no specific injury at all. Thus any one commoner can sue a stranger who lets his cattle depasture the common(u) ; and any one of a number of inhabitants entitled by local custom to a particular water supply can sue a neighbour who obstructs that supply(v) . It should seem from the ratio decidendi of the House of Lords in Lyon v. Fishmongers’ Company(x) , that the rights of access to a highway or a navigable river incident to the occupation of tenements thereto adjacent are private rights within the meaning of this rule(y) .

Injury caused by independent acts of different persons. (g) A cause of action for nuisance may be created by independent acts of different persons, though the acts of any one of those persons would not amount to a nuisance. “Suppose one person leaves a wheelbarrow standing on a way, that may cause no appreciable inconvenience, but if a hundred do so, that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent; and it is no defence to any one person among the hundred to say that what he does causes of itself no damage to the complainant”(z) .

Obstruction of lights. A species of nuisance which has become prominent in modern law, by reason of the increased closeness and height of buildings in towns, is the obstruction of light: often the phrase “light and air” is used, but the addition is useless if not misleading, inasmuch as a specific right to the access of air over a neighbour’s land is not known to the law as a subject of property(a) .

It seems proper (though at the risk of digressing from the law of Torts into the law of Easements) to state here the rules on this head as settled by the decisions of the last twenty years or thereabouts.

Nature of the right. The right to light, to begin with, is not a natural right incident to the ownership of windows, but an easement to which title must be shown by grant(b) , express or implied, or by prescription at common law, or under the Prescription Act. The Prescription Act has not altered the nature or extent of the right, but has only provided a new mode of acquiring and claiming it(c) , without taking away any mode which existed at common law(d) . The right can be claimed only in respect of a building; the use of an open piece of ground for a purpose requiring light will not create an easement against an adjacent owner(e) .

Any substantial diminution is a wrong. Assuming the right to be established, there is a wrongful disturbance if the building in respect of which it exists is so far deprived of access of light as to render it materially less fit for comfortable or beneficial use or enjoyment in its existing condition; if a dwelling-house, for ordinary habitation; if a warehouse or shop, for the conduct of business(f) .

This does not mean that an obstruction is not wrongful if it leaves sufficient light for the conduct of the business or occupation carried in the dominant tenement for the time being. The question is not what is the least amount of light the plaintiff can live or work with, but whether the light, as his tenement was entitled to it and enjoyed it, has been substantially diminished. Even if a subdued or reflected light is better for the plaintiff’s business than a direct one, he is not the less entitled to regulate his light for himself(g) .

Supposed rule or presumption as to angle of 45°. For some years it was supposed, by analogy to a regulation in one of the Metropolitan Local Management Acts as to the proportion between the height of new buildings and the width of streets(h) , that a building did not constitute a material obstruction in the eye of the law, or at least was presumed not to be such, if its elevation subtended an angle not exceeding 45° at the base of the light alleged to be obstructed, or, as it was sometimes put, left 45° of light to the plaintiff. But it has been conclusively declared by the Court of Appeal that there is no such rule(i) . Every case must be dealt with on its own facts. The statutory regulation is framed on considerations of general public convenience, irrespective of private titles. Where an individual is entitled to more light than the statute would secure for him, there is no warrant in the statute, or in anything that can be thence inferred, for depriving him of it.

Enlargement or alteration of lights. An existing right to light is not lost by enlarging, rebuilding, or altering(j) , the windows for which access of light is claimed. So long as the ancient lights, or a substantial part thereof(k) , remain substantially capable of continuous enjoyment(l) , so long the existing right continues and is protected by the same remedies(m) . And an existing right to light is not lost by interruption which is not continuous in time and quantity, but temporary and of fluctuating amount(n) .

It makes no difference that the owner of a servient tenement may, by the situation and arrangement of the buildings, be unable to prevent a right being acquired in respect of the new light otherwise than by obstructing the old light also(o) . For there is no such thing as a specific right to obstruct new lights. A man may build on his own land, and he may build so as to darken any light which is not ancient (as on the other hand it is undoubted law that his neighbour may open lights overlooking his land), but he must do it so as not to interfere with lights in respect of which a right has been acquired.

“Nuisance” to market or ferry. Disturbing the private franchise of a market or a ferry is commonly reckoned a species of nuisance in our books(p) . But this classification seems rather to depend on accidents of procedure than on any substantial resemblance between interference with peculiar rights of this kind and such injuries to the enjoyment of common rights of property as we have been considering. The quasi-proprietary right to a market or a ferry is of such a nature that the kind of disturbance called “nuisance” in the old books is the only way in which it can be violated at all. If disturbing a market is a nuisance, an infringement of copyright must be a nuisance too, unless the term is to be conventionally restricted to the violation of rights not depending on any statute.

Remedies for nuisance. The remedies for nuisance are threefold: abatement, damages, and injunction: of which the first is by the act of the party aggrieved, the others by process of law. Damages are recoverable in all cases where nuisance is proved, but in many cases are not an adequate remedy. The more stringent remedy by injunction is available in such cases, and often takes the place of abatement where that would be too hazardous a proceeding.

Abatement. The abatement of obstructions to highways, and the like, is still of importance as a means of asserting public rights. Private rights which tend to the benefit of the public, or a considerable class of persons, such as rights of common, have within recent times been successfully maintained in the same manner, though not without the addition of judicial proceedings(q) . It is decided that not only walls, fences, and such like encroachments which obstruct rights of common may be removed, but a house wrongfully built on a common may be pulled down by a commoner if it is not removed after notice(r) within a reasonable time(s) .

If another man’s tree overhangs my land, I may lawfully cut the overhanging branches(t) ; and in these cases where the nuisance is in the nature of a trespass, and can be abated without entering on another’s land, the wrong-doer is not entitled to notice(u) . But if the nuisance is on the wrong-doer’s own tenement, he ought first to be warned and required to abate it himself(v) . After notice and refusal, entry on the land to abate the nuisance may be justified; but it is a hazardous course at best for a man thus to take the law into his own hands, and in modern times it can seldom, if ever, be advisable.

Notice to wrongdoer. In the case of abating nuisances to a right of common, notice is not strictly necessary unless the encroachment is a dwelling-house in actual occupation; but if there is a question of right to be tried, the more reasonable course is to give notice(x) . The same rule seems on principle to be applicable to the obstruction of a right of way. As to the extent of the right, “where a fence has been erected upon a common, inclosing and separating parts of that common from the residue, and thereby interfering with the rights of the commoners, the latter are not by law restrained in the exercise of those rights to pulling down so much of that fence as it may be necessary for them to remove for the purpose of enabling their cattle to enter and feed upon the residue of the common, but they are entitled to consider the whole of that fence so erected upon the common a nuisance, and to remove it accordingly”(y) .

Nuisances of omission. It is doubtful whether there is any private right to abate a nuisance consisting only in omission except where the person aggrieved can do it without leaving his own tenement in respect of which he suffers, and perhaps except in cases of urgency such as to make the act necessary for the immediate safety of life or property. “Nuisances by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them; but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. . . . The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it. In such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances persons should not take the law into their own hands, but follow the advice of Lord Hale and appeal to a court of justice”(z) .

In every case the party taking on himself to abate a nuisance must avoid doing any unnecessary damage, as is shown by the old form of pleading in justification. Thus it is lawful to remove a gate or barrier which obstructs a right of way, but not to break or deface it beyond what is necessary for the purpose of removing it. And where a structure, say a dam or weir across a stream, is in part lawful and in part unlawful, a party abating that which is unlawful cannot justify interference with the rest. He must distinguish them at his peril(a) . But this does not mean that the wrong-doer is always entitled to have a nuisance abated in the manner most convenient to himself. The convenience of innocent third persons or of the public may also be in question. And the abator cannot justify doing harm to innocent persons which he might have avoided. In such a case, therefore, it may be necessary and proper “to abate the nuisance in a manner more onerous to the wrong-doer”(b) . Practically the remedy of abatement is now in use only as to rights of common (as we have already hinted), rights of way, and sometimes rights of water; and even in those cases it ought never to be used without good advisement.

Old writs. Formerly there were processes of judicial abatement available for freeholders under the writ Quod permittat and the assize of nuisance(c) . But these were cumbrous and tedious remedies, and, like the other forms of real action, were obsolete in practice long before they were finally abolished(d) , the remedies by action on the case at law and by injunction in the Court of Chancery having superseded them.

Damages. There is not much to be said of the remedy in damages as applicable to this particular class of wrongs. Persistence in a proved nuisance is stated to be a just cause for giving exemplary damages(e) . There is a place for nominal damages in cases where the nuisance consists merely in the obstruction of a right of legal enjoyment, such as a right of common, which does not cause any specific harm or loss to the plaintiff. At common law damages could not be awarded for any injury received from the continuance of a nuisance since the commencement of the action; for this was a new cause of action for which damages might be separately recovered. But under the present procedure damages in respect of any continuing cause of action are assessed down to the date of the assessment(f) .

Injunctions. The most efficient and flexible remedy is that of injunction. Under this form the Court can prevent that from being done which, if done, would cause a nuisance; it can command the destruction of buildings(g) or the cessation of works(h) which violate a neighbour’s rights; where there is a disputed question of right between the parties, it can suspend the operations complained of until that question is finally decided(i) ; and its orders may be either absolute or conditional upon the fulfilment by either or both of the parties of such undertakings as appear just in the particular case(j) .

It is matter of common learning and practice that an injunction is not, like damages, a remedy (as it is said) ex debito iustitiae. Whether it shall be granted or not in a given case is in the judicial discretion of the Court, now guided by principles which have become pretty well settled. In order to obtain an injunction it must be shown that the injury complained of as present or impending is such as by reason of its gravity, or its permanent character, or both, cannot be adequately compensated in damages(k) . The injury must be either irreparable or continuous(l) . This remedy is therefore not appropriate for damage which is in its nature temporary and intermittent(m) , or is accidental and occasional(n) , or for an interference with legal rights which is trifling in amount and effect(n) . But the prospect of material injury, which if completed would be ground for substantial damages, is generally enough to entitle the plaintiff to an injunction(o) .

Apprehension of future mischief from something in itself lawful and capable of being done without creating a nuisance is no ground for an injunction(p) . “There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial”(q) . But where a nuisance is shown to exist, all the probable consequences are taken into account in determining whether the injury is serious within the meaning of the rule on which the Court acts(r) . But there must be substantial injury in view to begin with. The following passages from a judgment of the late Lord Justice James will be found instructive on this point:—

“In this case the Master of the Rolls has dismissed with costs the bill of the plaintiff.

“The bill, in substance, sought by a mandatory injunction to prevent the defendants, who are a great colliery company, from erecting or working any coke ovens or other ovens to the nuisance of the plaintiff, the nuisance alleged being from smoke and deleterious vapours.

“The Master of the Rolls thought it right to lay down what he conceived to be the principle of law applicable to a case of this kind, which principle he found expressed in the case of St. Helen’s Smelting Company v. Tipping(s) , in which Mr. Justice Mellor gave a very elaborate charge to the jury, which was afterwards the subject of a very elaborate discussion and consideration in the House of Lords. The Master of the Rolls derived from that case this principle; that in any case of this kind, where the plaintiff was seeking to interfere with a great work carried on, so far as the work itself is concerned, in the normal and useful manner, the plaintiff must show substantial, or, as the Master of the Rolls expressed it, ‘visible’ damage. The term ‘visible’ was very much quarrelled with before us, as not being accurate in point of law. It was stated that the word used in the judgment of the Lord Chancellor was ‘sensible.’ I do not think that there is much difference between the two expressions. When the Master of the Rolls said that the damage must be visible, it appears to me that he was quite right; and as I understand the proposition, it amounts to this, that, although when you once establish the fact of actual substantial damage, it is quite right and legitimate to have recourse to scientific evidence as to the causes of that damage, still, if you are obliged to start with scientific evidence, such as the microscope of the naturalist, or the tests of the chemist, for the purpose of establishing the damage itself, that evidence will not suffice. The damage must be such as can be shown by a plain witness to a plain common juryman.

“The damage must also be substantial, and it must be, in my view, actual; that is to say, the Court has, in dealing with questions of this kind, no right to take into account contingent, prospective, or remote damage. I would illustrate this by analogy. The law does not take notice of the imperceptible accretions to a river bank, or to the sea-shore, although after the lapse of years they become perfectly measurable and ascertainable; and if in the course of nature the thing itself is so imperceptible, so slow, and so gradual as to require a great lapse of time before the results are made palpable to the ordinary senses of mankind, the law disregards that kind of imperceptible operation. So, if it were made out that every minute a millionth of a grain of poison were absorbed by a tree, or a millionth of a grain of dust deposited upon a tree, that would not afford a ground for interfering, although after the lapse of a million minutes the grains of poison or the grains of dust could be easily detected.

“It would have been wrong, as it seems to me, for this Court in the reign of Henry VI. to have interfered with the further use of sea coal in London, because it had been ascertained to their satisfaction, or predicted to their satisfaction, that by the reign of Queen Victoria both white and red roses would have ceased to bloom in the Temple Gardens. If some picturesque haven opens its arms to invite the commerce of the world, it is not for this Court to forbid the embrace, although the fruit of it should be the sights, and sounds, and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitudes.

“With respect to this particular property before us, I observe that the defendants have established themselves on a peninsula which extends far into the heart of the ornamental and picturesque grounds of the plaintiff. If, instead of erecting coke ovens at that spot, they had been minded, as apparently some persons in the neighbourhood on the other side have done, to import ironstone, and to erect smelting furnaces, forges, and mills, and had filled the whole of the peninsula with a mining and manufacturing village, with beershops, and pig-styes, and dog-kennels, which would have utterly destroyed the beauty and the amenity of the plaintiff’s ground, this Court could not, in my judgment, have interfered. A man to whom Providence has given an estate, under which there are veins of coal worth perhaps hundreds or thousands of pounds per acre, must take the gift with the consequences and concomitants of the mineral wealth in which he is a participant”(t) .

It is not a necessary condition of obtaining an injunction to show material specific damage. Continuous interference with a legal right in a manner capable of producing material damage is enough(u) .

Difficulty or expense of abatement no answer. The difficulty or expense which the party liable for a nuisance may have to incur in removing it makes no difference to his liability, any more than a debtor’s being unable to pay makes default in payment the less a breach of contract. And this principle applies not only to the right in itself, but to the remedy by injunction. The Court will use a discretion in granting reasonable time for the execution of its orders, or extending that time afterwards on cause shown. But where an injunction is the only adequate remedy for the plaintiff, the trouble and expense to which the defendant may be put in obeying the order of the Court are in themselves no reason for withholding it(v) .

Parties entitled to sue for nuisance. As to the person entitled to sue for a nuisance: as regards interference with the actual enjoyment of property, only the tenant in possession can sue; but the landlord or reversioner can sue if the injury is of such a nature as to affect his estate, say by permanent depreciation of the property, or by setting up an adverse claim of right(x) . A lessee who has underlet cannot sue alone in respect of a temporary nuisance, though he may properly sue as co-plaintiff with the actual occupier(y) . A nuisance caused by the improper use of a highway, such as keeping carts and vans standing an unreasonable time, is not one for which a reversioner can sue; for he suffers no present damage, and, inasmuch as no length of time will justify a public nuisance, he is in no danger of an adverse right being established(z) .

The reversioner cannot sue in respect of a nuisance in its nature temporary, such as noise and smoke, even if the nuisance drives away his tenants(a) , or by reason thereof he can get only a reduced rent on the renewal of the tenancy(b) . “Since, in order to give a reversioner an action of this kind, there must be some injury done to the inheritance, the necessity is involved of the injury being of a permanent character”(c) . But as a matter of pleading it is sufficient for the reversioner to allege a state of things which is capable of being permanently injurious(d) .

Parties liable. As to liability: The person primarily liable for a nuisance is he who actually creates it, whether on his own land or not(e) . The owner or occupier of land on which a nuisance is created, though not by himself or by his servants, may also be liable in certain conditions. If a man lets a house or land with a nuisance on it, he as well as the lessee is answerable for the continuance thereof(f) , if it is caused by the omission of repairs which as between himself and the tenant he is bound to do(f) , but not otherwise(g) . If the landlord has not agreed to repair, he is not liable for defects of repair happening during the tenancy, even if he habitually looks to the repairs in fact(h) . It seems the better opinion that where the tenant is bound to repair, the lessor’s knowledge, at the time of letting, of the state of the property demised makes no difference, and that only something amounting to an authority to continue the nuisance will make him liable(i) .

Again an occupier who by licence (not parting with the possession) authorizes the doing on his land of something whereby a nuisance is created is liable(k) . But a lessor is not liable merely because he has demised to a tenant something capable of being so used as to create a nuisance, and the tenant has so used it(l) . Nor is an owner not in possession bound to take any active steps to remove a nuisance which has been created on his land without his authority and against his will(m) .

If one who has erected a nuisance on his land conveys the land to a purchaser who continues the nuisance, the vendor remains liable(n) , and the purchaser is also liable if on request he does not remove it(o) .

CHAPTER XI.

NEGLIGENCE(a) .

I.—

The General Conception.

Omission contrasted with action as ground of liability.For acts and their results (within the limits expressed by the term “natural and probable consequences,” and discussed in a foregoing chapter, and subject to the grounds of justification and excuse which have also been discussed) the actor is, generally speaking, held answerable by law. For mere omission a man is not, generally speaking, held answerable. Not that the consequences or the moral gravity of an omission are necessarily less. One who refrains from stirring to help another may be, according to the circumstances, a man of common though no more than common good will and courage, a fool, a churl, a coward, or little better than a murderer. But, unless he is under some specific duty of action, his omission will not in any case be either an offence or a civil wrong. The law does not and cannot undertake to make men render active service to their neighbours at all times when a good or a brave man would do so(b) . Some already existing relation of duty must be established, which relation will be found in most cases, though not in all, to depend on a foregoing voluntary act of the party held liable. He was not in the first instance bound to do anything at all; but by some independent motion of his own he has given hostages, so to speak, to the law. Thus I am not compelled to be a parent; but if I am one, I must maintain my children. I am not compelled to employ servants; but if I do, I must answer for their conduct in the course of their employment. The widest rule of this kind is that which is developed in the law of Negligence. One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk. To name one of the commonest applications, “those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision(c) . The caution that is required is in proportion to the magnitude and the apparent imminence of the risk: and we shall see that for certain cases the policy of the law has been to lay down exceptionally strict and definite rules. While some acts and occupations are more obviously dangerous than others, there is hardly any kind of human action that may not, under some circumstances, be a source of some danger.General duty of caution in acts. Thus we arrive at the general rule that every one is bound to exercise due care towards his neighbours in his acts and conduct, or rather omits or falls short of it at his peril; the peril, namely, of being liable to make good whatever harm may be a proved consequence of the default(d) .

Overlapping of contract and tort. In some cases this ground of liability may co-exist with a liability on contract towards the same person, and arising (as regards the breach) out of the same facts. Where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words, under a contract, and may be liable on the contract(e) . The two duties are distinct, except so far as the same party cannot be compensated twice over for the same facts, once for the breach of contract and again for the wrong. Historically the liability in tort is older; and indeed it was by a special development of this view that the action of assumpsit, afterwards the common mode of enforcing simple contracts, was brought into use(f) . “If a smith prick my horse with a nail, &c., I shall have my action upon the case against him, without any warranty by the smith to do it well. . . . . For it is the duty of every artificer to exercise his art rightly and truly as he ought”(g) . This overlapping of the regions of Contract and Tort gives rise to troublesome questions which we are not yet ready to discuss. They are dealt with in the concluding chapter of this book. Meanwhile we shall have to use for authority and illustration many cases where there was a co-existing duty ex contractu, or even where the duty actually enforced was of that kind. For the obligation of many contracts is, by usage and the nature of the case, not to perform something absolutely, but to use all reasonable skill and care to perform it. Putting aside the responsibilities of common carriers and innkeepers, which are peculiar, we have this state of things in most agreements for custody or conveyance, a railway company’s contract with a passenger for one. In such cases a total refusal or failure to perform the contract is rare. The kind of breach commonly complained of is want of due care in the course of performance. Now the same facts may admit of being also regarded as a wrong apart from the contract, or they may not. But in either case the questions, what was the measure of due care as between the defendant and the plaintiff, and whether such care was used, have to be dealt with on the same principles. In other words, negligence in performing a contract and negligence independent of contract create liability in different ways: but the authorities that determine for us what is meant by negligence are in the main applicable to both.

Definition of negligence. The general rule was thus stated by Baron Alderson: “Negligence is 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”(h) . It was not necessary for him to state, but we have always to remember, that negligence will not be a ground of legal liability unless the party whose conduct is in question is already in a situation that brings him under the duty of taking care. This, it will be observed, says nothing of the party’s state of mind, and rightly. Jurisprudence is not psychology, and law disregards many psychological distinctions not because lawyers are ignorant of their existence, but because for legal purposes it is impracticable or useless to regard them. Even if the terms were used by lawyers in a peculiar sense, there would be no need for apology; but the legal sense is the natural one. Negligence is the contrary of diligence, and no one describes diligence as a state of mind. The question for judges and juries is not what a man was thinking or not thinking about, expecting or not expecting, but whether his behaviour was or was not such as we demand of a prudent man under the given circumstances. Facts which were known to him, or by the use of appropriate diligence would have been known to a prudent man in his place, come into account as part of the circumstances. Even as to these the point of actual knowledge is a subordinate one as regards the theoretical foundation of liability. The question is not so much what a man of whom diligence was required actually thought of or perceived, as what would have been perceived by a man of ordinary sense who did think(i) . A man’s responsibility may be increased by his happening to be in possession of some material information beyond what he might be expected to have. But this is a rare case.

As matter of evidence and practice, proof of actual knowledge may be of great importance. If danger of a well understood kind has in fact been expressly brought to the defendant’s notice as the result of his conduct, and the express warning has been disregarded or rejected(j) , it is both easier and more convincing to prove this than to show in a general way what a prudent man in the defendant’s place ought to have known. In an extreme case reckless omission to use care, after notice of the risk, may be held, as matter of fact, to prove a mischievous intention: or, in the terms of Roman law, culpa lata may be equivalent to dolus. For purposes of civil liability it is seldom (if ever) necessary to decide this point.

The standard of duty does not vary with individual ability. We have assumed that the standard of duty is not the foresight and caution which this or that particular man is capable of, but the foresight and caution of a prudent man—the average prudent man, or, as our books rather affect to say, a reasonable man—standing in this or that man’s shoes(k) . This idea so pervades the mass of our authorities that it can be appreciated only by some familiarity with them. In the year 1837 it was formally and decisively enounced by the Court of Common Pleas(l) . The action was against an occupier who had built a rick of hay on the verge of his own land, in such a state that there was evident danger of fire, and left it there after repeated warning. The hayrick did heat, broke into flame, and set fire to buildings which in turn communicated the fire to the plaintiff’s cottages, and the cottages were destroyed. At the trial the jury were directed “that the question for them to consider was whether the fire had been occasioned by gross negligence on the part of the defendant,” and “that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.” A rule for a new trial was obtained “on the ground that the jury should have been directed to consider, not whether the defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest(m) order of intelligence.” The Court unanimously declined to accede to this view. They declared that the care of a prudent man was the accustomed and the proper measure of duty. It had always been so laid down, and the alleged uncertainty of the rule had been found no obstacle to its application by juries. It is not for the Court to define a prudent man, but for the jury to say whether the defendant behaved like one. “Instead of saying that the liability for negligence should be coextensive with the judgment of each individual—which would be as variable as the length of the foot of each individual—we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe”(n) . In our own time the same principle has been enforced in the Supreme Court of Massachusetts. “If a man’s conduct is such as would be reckless in a man of ordinary prudence, it is reckless in him. Unless he can bring himself within some broadly defined exception to general rules, the law deliberately leaves his personal equation or idiosyncracies out of account, and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation”(o) .

Diligence includes competence. It will be remembered that the general duty of diligence includes the particular duty of competence in cases where the matter taken in hand is of a sort requiring more than the knowledge or ability which any prudent man may be expected to have. The test is whether the defendant has done “all that any skilful person could reasonably be required to do in such a case”(p) . This is not an exception or extension, but a necessary application of the general rule. For a reasonable man will know the bounds of his competence, and will not intermeddle (save in extraordinary emergency) where he is not competent(q) .

II.—

Evidence of Negligence.

Negligence a question of mixed fact and law. Due care and caution, as we have seen, is the diligence of a reasonable man, and includes reasonable competence in cases where special competence is needful to ensure safety. Whether due care and caution have been used in a given case is, by the nature of things, a question of fact. But it is not a pure question of fact in the sense of being open as a matter of course and without limit. Not every one who suffers harm which he thinks can be set down to his neighbour’s default is thereby entitled to the chance of a jury giving him damages. The field of inquiry has limits defined, or capable of definition, by legal principle and judicial discussion. Before the Court or the jury can proceed to pass upon the facts alleged by the plaintiff, the Court must be satisfied that those facts, if proved, are in law capable of supporting the inference that the defendant has failed in what the law requires at his hands. In the current forensic phrase, there must be evidence of negligence. The peculiar relation of the judge to the jury in our common law system has given occasion for frequent and minute discussion on the propriety of leaving or not leaving for the decision of the jury the facts alleged by a plaintiff as proof of negligence. Such discussions are not carried on in the manner best fitted to promote the clear statement of principles; it is difficult to sum up their results, and not always easy to reconcile them.

The tendency of modern rulings of Courts of Appeal has been, if not to enlarge the province of the jury, to arrest the process of curtailing it. Some distinct boundaries, however, are established.

Burden of proof. Where there is no contract between the parties, the burden of proof is on him who complains of negligence. He must not only show that he suffered harm in such a manner that it might be caused by the defendant’s negligence; he must show that it was so caused, and to do this he must prove facts inconsistent with due diligence on the part of the defendant. “Where the evidence given is equally consistent with the existence or non-existence of negligence, it is not competent to the judge to leave the matter to the jury”(r) .

Nothing can be inferred, for example, from the bare fact that a foot-passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing(s) . Those who pass and repass in frequented roads are bound to use due care, be it on foot or on horseback, or with carriages: and before one can complain of another, he must show wherein care was wanting. “When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale”(t) . It cannot be assumed, in the absence of all explanation, that a train ran over a man more than the man ran against the train(u) . If the carriage was being driven furiously, or on the wrong side of the road, that is another matter. But the addition of an ambiguous circumstance will not do.

Thus in Cotton v. Wood(v) the plaintiff’s wife, having safely crossed in front of an omnibus, was startled by some other carriage, and ran back; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace. Here there was no evidence of negligence on the part of the defendant, the owner of the omnibus(x) . His servants, on the plaintiff’s own showing, had not done anything inconsistent with due care. There was no proof that the driver turned round to speak to the conductor otherwise than for a lawful or necessary purpose, or had any reason to apprehend that somebody would run under the horses’ feet at that particular moment. Again if a horse being ridden(y) or driven(z) in an ordinary manner runs away without apparent cause, and in spite of the rider’s or driver’s efforts trespasses on the footway and there does damage, this is not evidence of negligence. The plaintiff ought to show positively want of care, or want of skill, or that the owner or person in charge of the horse knew it to be unmanageable. “To hold that the mere fact of a horse bolting is per se evidence of negligence would be mere reckless guesswork”(a) .

Sometimes it is said that the burden of proof is on the plaintiff to show that he was himself using due care, and it has been attempted to make this supposed principle a guide to the result to be arrived at in cases where the defence of contributory negligence is set up. This view seems to be rather prevalent in America(b) , but in the present writer’s opinion it is unsound. The current of English authority is against it, and it has been distinctly rejected in the House of Lords(c) . What we consider to be the true view of contributory negligence will be presently explained.

Where there is contract or undertaking. This general principle has to be modified where there is a relation of contract between the parties, and (it should seem) when there is a personal undertaking without a contract. A coach runs against a cart; the cart is damaged, the coach is upset, and a passenger in the coach is hurt. The owner of the cart must prove that the driver of the coach was in fault. But the passenger in the coach can say to the owner: “You promised for gain and reward to bring me safely to my journey’s end, so far as reasonable care and skill could attain it. Here am I thrown out on the road with a broken head. Your contract is not performed; it is for you to show that the misadventure is due to a cause for which you are not answerable”(d) .

When a railway train runs off the line, or runs into another train, both permanent way and carriages, or both trains (as the case may be) being under the same company’s control, these facts, if unexplained, are as between the company and a passenger evidence of negligence(e) .

In like manner, if a man has undertaken, whether for reward or not, to do something requiring special skill, he may fairly be called on, if things go wrong, to prove his competence: though if he is a competent man, the mere fact of a mishap (being of a kind that even a competent person is exposed to) would of itself be no evidence of negligence. We shall see later that, where special duties of safe keeping or repair are imposed by the policy of the law, the fact of an accident happening is held, in the same manner, to cast the burden of proving diligence on the person who is answerable for it, or in other words raises a presumption of negligence. This is said without prejudice to the yet stricter rule of liability that holds in certain cases.

Things within defendant’s control. Again there is a presumption of negligence when the cause of the mischief was apparently under the control of the defendant or his servants. The rule was declared by the Exchequer Chamber in 1865(f) , in these terms:—

“There must be reasonable evidence of negligence.

“But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

Therefore if I am lawfully and as of right(g) passing in a place where people are handling heavy goods, and goods being lowered by a crane fall upon me and knock me down, this is evidence of negligence against the employer of the men who were working the crane(h) .

Common course of affairs judicially noticed. The Court will take judicial notice of what happens in the ordinary course of things, at all events to the extent of using their knowledge of the common affairs of life to complete or correct what is stated by witnesses. Judges do not affect, for example, to be ignorant that the slipping of one passenger out of several thousand in hurrying up the stairs of a railway station is not an event so much out of the run of pure accidents as to throw suspicion on the safety of the staircase(i) .

On evidence sufficient in law, question is for jury. When we have once got something more than an ambiguously balanced state of facts; when the evidence, if believed, is less consistent with diligence than with negligence on the defendant’s part, or shows the non-performance of a specific positive duty laid on him by statute, contract, or otherwise; then the judgment whether the plaintiff has suffered by the defendant’s negligence is a judgment of fact, and on a trial by jury must be left as such in the hands of the jury(j) . The question of negligence is one of law for the Court only where the facts are such that all reasonable men must draw the same conclusion from them(k) . It is true that the rules as to remoteness of damage set some bounds to the connexion of the defendant’s negligence with the plaintiff’s loss(l) . But even in this respect considerable latitude has been allowed(m) . Railway accidents have for the last forty years or more been the most frequent occasions of defining, or attempting to define, the frontier between the province of the jury and that of the Court.

Recent railway cases on level crossings and “invitation to alight.” Two considerable and well marked groups of cases stand out from the rest. One set may be broadly described as level crossing cases, and culminated in North Eastern Railway Company v. Wanless, decided by the House of Lords in 1874(n) ; the other may still more roughly (but in a manner which readers familiar with the reports will at once understand) be called “invitation to alight” cases. These are now governed by Bridges v. North London Railway Company(o) , another decision of the House of Lords which followed closely on Wanless’s case. In neither of these cases did the House of Lords intend to lay down any new rule, nor any exceptional rule as regards railway companies: yet it was found needful a few years later to restate the general principle which had been supposed to be impugned. This was done in Metropolitan Railway Company v. Jackson(p) .

Explanation in Metr. R. Co. v. Jackson. “The judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever”(q) .

“On a trial by jury it is, I conceive, undoubted that the facts are for the jury, and the law for the judge. It is not, however, in many cases practicable completely to sever the law from the facts.

“But I think it has always been considered a question of law to be determined by the judge, subject, of course, to review, whether there is evidence which, if it is believed, and the counter evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether, and how far, the evidence is to be believed. And if the facts as to which evidence is given are such that from them a farther inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to determine, subject to review, as a matter of law, whether from those facts that farther inference may legitimately be drawn”(r) .

The case itself was decided on the ground that the hurt suffered by the plaintiff was not the proximate consequence of any proved negligence of the defendants; not that there was no proof of the defendants having been negligent at all, for there was evidence which, if believed, showed mismanagement, and would have been quite enough to fix on the defendant company liability to make good any damage distinctly attributable to such mismanagement as its “natural and probable” consequence(s) . As between the plaintiff and the defendant, however, evidence of negligence which cannot be reasonably deemed the cause of his injury is plainly the same thing as a total want of evidence. Any one can see that a man whose complaint is that his thumb was crushed in the door of a railway carriage would waste his trouble in proving (for example) that the train had not a head-light. The House of Lords determined, after no small difference of learned opinions below, that it availed him nothing to prove overcrowding and scrambling for seats. The irrelevance is more obvious in the one case than in the other, but it is only a matter of degree(t) .

The “level crossing” type of cases. In the “level crossing” group of cases we have some one crossing a railway at a place made and provided by the company for that purpose, and where the company is under the statutory duty of observing certain precautions. The party assumes that the line is clear; his assumption is erroneous, and he is run down by a passing train. Here the company has not entered into any contract with him; and he must prove either that the company did something which would lead a reasonable man to assume that the line was clear for crossing(u) , or that there was something in their arrangements which made it impracticable or unreasonably difficult to ascertain whether the line was clear or not. Proof of negligence in the air, so to speak, will not do. “Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connexion whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury”(v) . What may reasonably be held to amount to such proof cannot be laid down in general terms. “You must look at each case, and all the facts of the case, before you make up your mind what the railway company ought to do”(x) . But unless the plaintiff’s own evidence shows that the accident was due to his own want of ordinary care (as where in broad daylight he did not look out at all(y) , the tendency of modern authority is to leave the matter very much at large for the jury. In Dublin, Wicklow and Wexford Railway Co. v. Slattery(z) , the only point of negligence made against the railway company was that the train which ran over and killed the plaintiff’s husband did not whistle before running through the station where he was crossing the line. It was night at the time, but not a thick night. Ten witnesses distinctly and positively testified that the engine did whistle. Three swore that they did not hear it. A jury having found for the plaintiff, it was held by the majority of the House of Lords that the Court could not enter a verdict for the defendants, although they did not conceal their opinion that the actual verdict was a perverse one(a) .

The “invitation to alight” group. In the other group, which we have called “invitation to alight” cases, the nature of the facts is, if anything, less favourable to the defendant. A train stopping at a station overshoots the platform so that the front carriages stop at a place more or less inconvenient, or it may be dangerous, for persons of ordinary bodily ability to alight. A passenger bound for that station, or otherwise minded to alight, is unaware (as by reason of darkness, or the like, he well may be) of the inconvenience of the place(b) , or else is aware of it, but takes the attendant risk rather than be carried beyond his destination. In either case he gets out as best he can, and, whether through false security, or in spite of such caution as he can use, has a fall or is otherwise hurt. Here the passenger is entitled by his contract with the company to reasonable accommodation, and they ought to give him facilities for alighting in a reasonably convenient manner. Overshooting the platform is not of itself negligence, for that can be set right by backing the train(c) . It is a question of fact whether under the particular circumstances the company’s servants were reasonably diligent for the accommodation of the passengers(d) , and whether the passenger, if he alighted knowing the nature of the place, did so under a reasonable apprehension that he must alight there or not at all(e) .

Complications with contributory negligence, &c. All these cases are apt to be complicated with issues of contributory negligence and other similar though not identical questions. We shall advert to these presently. It will be convenient now to take a case outside these particular types, and free from their complications, in which the difficulty of deciding what is “evidence of negligence” is illustrated. Such an one is Smith v. London and South Western Railway Company(f) .Other illustrations of “evidence of negligence”: Smith v. L. & S. W. R. Co. The facts are, in this country and climate, of an exceptional kind: but the case is interesting because, though distinctly within the line at which the freedom of the jury ceases, that line is shown by the tone and language of the judgments in both the Common Pleas and the Exchequer Chamber to be nearly approached. The action was in respect of property burnt by fire, communicated from sparks which had escaped from the defendant company’s locomotives. The material elements of fact were the following.

Hot dry weather had prevailed for some time, and at the time of the accident a strong S.E. wind was blowing.

About a fortnight earlier grass had been cut by the defendants’ servants on the banks adjoining the line, and the boundary hedge trimmed, and the cuttings and trimmings had, on the morning of the fire(g) , been raked into heaps, and lay along the bank inside the hedge. These cuttings and trimmings were, by reason of the state of the weather, very dry and inflammable.

Next the hedge there was a stubble field; beyond that a road; on the other side of the road a cottage belonging to the plaintiff, 200 yards in all distant from the railway.

Two trains passed, and immediately or shortly afterwards the strip of grass between the railroad and the hedge was seen to be on fire. Notwithstanding all efforts made to subdue it, the fire burnt through the hedge, spread over the stubble field, crossed the road, and consumed the plaintiff’s cottage.

There was no evidence that the railway engines were improperly constructed or worked with reference to the escape of sparks, and no direct evidence that the fire came from one of them.

The jury found for the plaintiff; and it was held (though with some difficulty)(h) that they were warranted in so finding on the ground that the defendants were negligent, having regard to the prevailing weather, in leaving the dry trimmings in such a place and for so long a time. The risk, though unusual, was apparent, and the company was bound to be careful in proportion. “The more likely the hedge was to take fire, the more incumbent it was upon the company to take care that no inflammable material remained near to it”(i) . Thus there was evidence enough (though it seems only just enough) to be left for the jury to decide upon. Special danger was apparent, and it would have been easy to use appropriate caution. On the other hand the happening of an accident in extraordinary circumstances, from a cause not apparent, and in a manner that could not have been prevented by any ordinary measures of precaution, is not of itself any evidence of negligence(k) . And a staircase which has been used by many thousand persons without accident cannot be pronounced dangerous and defective merely because the plaintiff has slipped on it, and somebody can be found to suggest improvements(l) .

No precise general rule can be given. Illustrations might be largely multiplied, and may be found in abundance in Mr. Horace Smith’s, Mr. Campbell’s, or Mr. Beven’s monograph, or by means of the citations and discussions in the leading cases themselves. Enough has been said to show that by the nature of the problem no general formula can be laid down except in some such purposely vague terms as were used in Scott v. London Dock Co.(m) .

Due care varies as apparent risk: application of this to accidents through personal infirmity. We have said that the amount of caution required of a citizen in his conduct is proportioned to the amount of apparent danger. In estimating the probability of danger to others, we are entitled to assume, in the absence of anything to show the contrary, that they have the full use of common faculties, and are capable of exercising ordinary caution. If a workman throws down a heavy object from a roof or scaffolding “in a country village, where few passengers are,” he is free from criminal liability at all events, provided “he calls out to all people to have a care”(n) . Now some passer-by may be deaf, and may suffer by not hearing the warning. That will be his misfortune, and may be unaccompanied by any imprudence on his part; but it cannot be set down to the fault of the workman. If the workman had no particular reason to suppose that the next passer-by would be deaf, he was bound only to such caution as suffices for those who have ears to hear. The same rule must hold if a deaf man is run over for want of hearing a shout or a whistle(o) , or a blind man for want of seeing a light, or if a colour-blind man, being unable to make out a red danger flag, gets in the line of fire of rifle or artillery practice; or if in any of these circumstances a child of tender years, or an idiot, suffers through mere ignorance of the meaning which the warning sight or sound conveys to a grown man with his wits about him. And this is not because there is any fault in the person harmed, for there may well be no fault at all. Whatever we think, or a jury might think, of a blind man walking alone, it can hardly be deemed inconsistent with common prudence for a deaf man to do so; and it is known that colour-blind people, and those with whom they live, often remain ignorant of their failing until it is disclosed by exact observation or by some accident. It is not that the law censures a deaf man for not hearing, or a colour-blind one for not perceiving a red flag. The normal measure of the caution required from a lawful man must be fixed with regard to other men’s normal powers of taking care of themselves, and abnormal infirmity can make a difference only when it is shown that in the particular case it was apparent.

Distinction where the person acting has notice of special danger to an infirm or helpless person. On the other hand it seems clear that greater care is required of us when it does appear that we are dealing with persons of less than ordinary faculty. Thus if a man driving sees that a blind man, an aged man, or a cripple is crossing the road ahead, he must govern his course and speed accordingly. He will not discharge himself, in the event of a mishap, merely by showing that a young and active man with good sight would have come to no harm. In like manner if one sees a child, or other person manifestly incapable of normal discretion, exposed to risk from one’s action, it seems that proportionate care is required; and it further seems on principle immaterial that the child would not be there but for the carelessness of some parent or guardian or his servant. These propositions are not supported by any distinct authority in our law that I am aware of(p) . But they seem to follow from admitted principles, and to throw some light on questions which arise under the head of contributory negligence.

III.—

Contributory Negligence.

Actionable negligence must be proximate cause of harm: where plaintiff’s own negligence is immediate cause, no remedy. In order that a man’s negligence may entitle another to a remedy against him, that other must have suffered harm whereof this negligence is a proximate cause. Now I may be negligent, and my negligence may be the occasion of some one suffering harm, and yet the immediate cause of the damage may be not my want of care but his own. Had I been careful to begin with, he would not have been in danger; but had he, being so put in danger, used reasonable care for his own safety or that of his property, the damage would still not have happened. Thus my original negligence is a comparatively remote cause of the harm, and as things turn out the proximate cause is the sufferer’s own fault, or rather (since a man is under no positive duty to be careful in his own interest) he cannot ascribe it to the fault of another. In a state of facts answering this general description the person harmed is by the rule of the common law not entitled to any remedy. He is said to be “guilty of contributory negligence;” a phrase well established in our forensic usage, though not free from objection. It rather suggests, as the ground of the doctrine, that a man who does not take ordinary care for his own safety is to be in a manner punished for his carelessness by disability to sue any one else whose carelessness was concerned in producing the damage. But this view is neither a reasonable one, nor supported by modern authority, and it is already distinctly rejected by writers of no small weight(q) . And it stands ill with the common practice of our courts, founded on constant experience of the way in which this question presents itself in real life. “The received and usual way of directing a jury . . . is to say that if the plaintiff could, by the exercise of such care and skill as he was bound to exercise, have avoided the consequence of the defendant’s negligence, he cannot recover”(r) . That is to say, he is not to lose his remedy merely because he has been negligent at some stage of the business, though without that negligence the subsequent events might not or could not have happened; but only if he has been negligent in the final stage and at the decisive point of the event, so that the mischief, as and when it happens, is immediately due to his own want of care and not to the defendant’s. Again the penal theory of contributory negligence fails to account for the accepted qualification of the rule, “namely, that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him”(s) . And in the latest leading case, of which there will be more to say, the criterion of what was the proximate cause of the injury is adopted throughout(t) .

The element of truth which the penal theory, as I have called it, presents in a distorted form, is that the rule is not merely a logical deduction, but is founded in public utility. “The ultimate justification of the rule is in reasons of policy, viz. the desire to prevent accidents by inducing each member of the community to act up to the standard of due care set by the law. If he does not, he is deprived of the assistance of the law”(u) .

Tuff v. Warman. The leading case which settled the doctrine in its modern form is Tuff v. Warman(x) . The action was against the pilot of a steamer in the Thames for running down the plaintiff’s barge; the plaintiff’s own evidence showed that there was no look-out on the barge; as to the conduct of the steamer the evidence was conflicting, but according to the plaintiff’s witnesses she might easily have cleared the barge. Willes J. left it to the jury to say whether the want of a look-out was negligence on the part of the plaintiff, and if so, whether it “directly contributed to the accident.” This was objected to as too favourable to the plaintiff, but was upheld both in the full Court of Common Pleas and in the Exchequer Chamber. In the considered judgment on appeal(y) it is said that the proper question for the jury is “whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened.” But negligence will not disentitle the plaintiff to recover, unless it be such that without it the harm complained of would(z) not have happened; “nor if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff.”

Radley v. L. & N. W. R. Co. In Radley v. London and North Western Railway Co.(a) , this doctrine received a striking confirmation.

The defendant railway company was in the habit of taking full trucks from the siding of the plaintiffs, colliery owners, and returning the empty trucks there. Over this siding was a bridge eight feet high from the ground. On a Saturday afternoon, when all the colliery men had left work, the servants of the railway ran some trucks on the siding and left them there. One of the plaintiffs’ men knew this, but nothing was done to remove the trucks. The first of these trucks contained another broken-down truck, and their joint height amounted to eleven feet. On the Sunday evening the railway servants brought on the siding a line of empty trucks, and pushed on in front of them all those previously left on the siding. Some resistance was felt, and the power of the engine pushing the trucks was increased. The two trucks at the head of the line, not being able to pass under the bridge, struck it and broke it down. An action was brought to recover damages for the injury. The defence was contributory negligence, on the ground that the plaintiffs’ servants ought to have moved the first set of trucks to a safe place, or at any rate not have left the piled-up truck in a dangerous position. The judge at the trial told the jury that the plaintiffs must satisfy them that the accident “happened by the negligence of the defendants’ servants, and without any contributory negligence of their own; in other words, that it was solely by the negligence of the defendants’ servants.”

On these facts and under this direction the jury found that there was contributory negligence on the part of the plaintiffs, and a verdict was entered for the defendants. The Court of Exchequer(b) held that there was no evidence of contributory negligence, chiefly on the ground that the plaintiffs were not bound to expect or provide against the negligence of the defendants. The Exchequer Chamber(c) held that there was evidence of the plaintiffs having omitted to use reasonable precaution, and that the direction given to the jury was sufficient. In the House of Lords it was held(d) that there was a question of fact for the jury, but the law had not been sufficiently stated to them. They had not been clearly informed, as they should have been, that not every negligence on the part of the plaintiff which in any degree contributes to the mischief will bar him of his remedy, but only such negligence that the defendant could not by the exercise of ordinary care have avoided the result.

“It is true that in part of his summing-up, the learned judge pointed attention to the conduct of the engine-driver, in determining to force his way through the obstruction, as fit to be considered by the jury on the question of negligence; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering.

“In point of fact the evidence was strong to show that this was the immediate cause of the accident, and the jury might well think that ordinary care and diligence on the part of the engine-driver would, notwithstanding any previous negligence of the plaintiffs in leaving the loaded-up truck on the line, have made the accident impossible. The substantial defect of the learned judge’s charge is that that question was never put to the jury”(e) .

“Proximate” or “decisive” cause? This leaves no doubt that the true ground of contributory negligence being a bar to recovery is that it is the proximate cause of the mischief; and negligence on the plaintiff’s part which is only part of the inducing causes(f) will not disable him. I say “the proximate cause,” considering the term as now established by usage and authority. But I would still suggest, as I did in the first edition, that “decisive” might convey the meaning more exactly. For if the defendant’s original negligence was so far remote from the plaintiff’s damage as not to be part at least of its “proximate cause” within the more general meaning of that term, the plaintiff would not have any case at all, and the question of contributory negligence could not arise. We shall immediately see, moreover, that independent negligent acts of A. and B. may both be proximate in respect of harm suffered by Z., though either of them, if committed by Z. himself, would have prevented him from having any remedy for the other. Thus it appears that the term “proximate” is not used in precisely the same sense in fixing a negligent defendant’s liability and a negligent plaintiff’s disability.

The plaintiff’s negligence, if it is to disable him, has to be somehow more proximate than the defendant’s. It seems dangerously ambiguous to use “proximate” in a special emphatic sense without further or otherwise marking the difference. If we said “decisive” we should at any rate avoid this danger.

Self-created disability to avoid consequences of another’s negligence. It would seem that a person who has by his own act or default deprived himself of ordinary ability to avoid the consequences of another’s negligence can be in no better position than if, having such ability, he had failed to avoid them; unless, indeed, the other has notice of his inability in time to use care appropriate to the emergency; in which case the failure to use that care is the decisive negligence. A. and B. are driving in opposite directions on the same road on a dark night. B. is driving at a dangerous speed, and A. is asleep, but B. cannot see that he is asleep. Suppose that A., had he been awake, might have avoided a collision by ordinary care notwithstanding B.’s negligence. Can A. be heard to say that there is no contributory negligence on his part because he was asleep? It seems not. Suppose, on the other hand, that the same thing takes place by daylight or on a fine moonlight night, so that B. would with common care and attention perceive A.’s condition. Here B. would be bound, it seems, to use special caution no less than if A. had been disabled, say by a sudden paralytic stroke, without default of his own. So if a man meets a runaway horse, he cannot tell whether it is loose by negligence or by inevitable accident, nor can this make any difference to what a prudent man could or would do, nor, therefore, to the legal measure of the diligence required(g) .

Earlier illustrations: Davies v. Mann. Cases earlier than Tuff v. Warman(h) are now material only as illustrations. A celebrated one is the “donkey case,” Davies v. Mann(i) . There the plaintiff had turned his ass loose in a highway with its forefeet fettered, and it was run over by the defendant’s waggon, going at “a smartish pace.” It was held a proper direction to the jury that, whatever they thought of the plaintiff’s conduct, he was still entitled to his remedy if the accident might have been avoided by the exercise of ordinary care on the part of the driver. Otherwise “a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road”(j) . With this may be compared the not much later case of Mayor of Colchester v. Brooke(k) , where it was laid down (among many other matters) that if a ship runs on a bed of oysters in a river, and could with due care and skill have passed clear of them, the fact of the oyster-bed being a nuisance to the navigation does not afford an excuse. The facts of Davies v. Mann suggest many speculative variations, and the decision has been much and not always wisely discussed in America, though uniformly followed in this country(l) .

Butterfield v. Forrester.Butterfield v. Forrester(m) is a good example of obvious fault on both sides, where the plaintiff’s damage was immediately due to his own want of care. The defendant had put up a pole across a public thoroughfare in Derby, which he had no right to do. The plaintiff was riding that way at eight o’clock in the evening in August, when dusk was coming on, but the obstruction was still visible a hundred yards off: he was riding violently, came against the pole, and fell with his horse. It was left to the jury whether the plaintiff, riding with reasonable and ordinary care, could have seen and avoided the obstruction; if they thought he could, they were to find for the defendant; and they did so. The judge’s direction was affirmed on motion for a new trial. “One person being in fault will not dispense with another’s using ordinary care for himself.” Here it can hardly be said that the position of the pole across the road was not a proximate cause of the fall. But it was not the whole proximate cause. The other and decisive cause which concurred was the plaintiff’s failure to see and avoid the pole in his way.

On the whole, then, if the plaintiff’s “fault, whether of omission or of commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong”(n) . On the other hand, if the defendant’s fault has been the proximate cause he is not excused merely by showing that the plaintiff’s fault at some earlier stage created the opportunity for the fault which was that cause(o) . If it is not possible to say whether the plaintiff’s or the defendant’s negligence were the proximate (or decisive) cause of the damage, it may be said that the plaintiff cannot succeed because he has failed to prove that he has been injured by the defendant’s negligence(p) . On the other hand it might be suggested that, since contributory negligence is a matter of defence of which the burden of proof is on the defendant(q) , the defendant would in such a case have failed to make out his defence, and the plaintiff, having proved that the defendant’s negligence was a proximate cause if not the whole proximate cause of his damage, would still be entitled to succeed. The defendant must allege and prove not merely that the plaintiff was negligent, but that the plaintiff could by the exercise of ordinary care have avoided the consequences of the defendant’s negligence(r) . It is a question, either way, whether the plaintiff shall recover his whole damages or nothing, for the common law, whether reasonably or not(s) , has made no provision for apportioning damages in such cases. A learned writer (whose preference for being anonymous I respect but regret) has suggested that “hardly sufficient attention has been paid herein to the distinction between cases where the negligent acts are simultaneous and those where they are successive. In regard to the former class, such as Dublin, Wicklow & Wexford Ry. Co. v. Slattery(t) , or the case of two persons colliding at a street corner, the rule is, that if the plaintiff could by the exercise of ordinary care have avoided the accident he cannot recover. In regard to the latter class of cases, such as Davies v. Mann(u) and Radley v. L. & N. W. Ry. Co.(x) , the rule may be stated thus: that he who last has an opportunity of avoiding the accident, notwithstanding the negligence of the other, is solely responsible. And the ground of both rules is the same: that the law looks to the proximate cause, or, in other words, will not measure out responsibility in halves or other fractions, but holds that person liable who was in the main the cause of the injury”(y) .

Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons, of whom the one is not responsible for the other. It has been supposed that A. could avail himself, as against Z. who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. “It is true you were injured by my negligence, but it would not have happened if B. had not been negligent also, therefore you cannot sue me, or at all events not apart from B.” Recent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A. to answer to Z.: “You were not injured by my negligence at all, but only and wholly by B.’s.” It seems to be a question of fact rather than of law what respective degrees of connexion, in kind and degree, between the damage suffered by Z. and the independent negligent conduct of A. and B. will make it proper to say that Z. was injured by the negligence of A. alone, or of B. alone, or of both A. and B. But if this last conclusion be arrived at, it is now quite clear that Z. can sue both A. and B.(z) .

The exploded doctrine of “identification.” In a case now overruled, a different doctrine was set up which, although never willingly received and seldom acted on, remained of more or less authority for nearly forty years. The supposed rule was that if A. is travelling in a vehicle, whether carriage or ship, which belongs to B. and is under the control of B.’s servants, and A. is injured in a collision with another vehicle belonging to Z., and under the control of Z.’s servants, which collision is caused partly by the negligence of B.’s servants and partly by that of Z.’s servants, A. cannot recover against Z. The passenger, it was said, must be considered as having in some sense “identified himself” with the vehicle in which he has chosen to travel, so that for the purpose of complaining of any outsider’s negligence he is not in any better position than the person who has the actual control(a) . It is very difficult to see what this supposed “identification” really meant. With regard to any actual facts or intentions of parties, it is plainly a figment. No passenger carried for hire intends or expects to be answerable for the negligence of the driver, guard, conductor, master, or whoever the person in charge may be. He naturally intends and justly expects, on the contrary, to hold every such person and his superiors answerable to himself. Why that right should exclude a concurrent right against other persons who have also been negligent in the same transaction was never really explained. Yet the eminent judges(b) who invented “identification” must have meant something. They would seem to have assumed, rather than concluded, that the plaintiff was bound to show, even in a case where no negligence of his own was alleged, that the defendant’s negligence was not only a cause of the damage sustained, but the whole of the cause. But this is not so. The strict analysis of the proximate or immediate cause of the event, the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled—of course within the limits set by the general rules as to remoteness of damage—to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he plainly cannot recover in the whole more than his whole damage.

The phrase “contributory negligence of a third person,” which has sometimes been used, must therefore be rejected as misleading. Peter, being sued by Andrew for causing him harm by negligence, may prove if he can that not his negligence, but wholly and only John’s, harmed Andrew. It is useless for him to show that John’s negligence was “contributory” to the harm, except so far as evidence which proved this, though failing to prove more, might practically tend to reduce the damages.

It is impossible to lay down rules for determining whether harm has been caused by A.’s and B.’s negligence together, or by A.’s or B.’s alone. The question is essentially one of fact. There is no reason, however, why joint negligence should not be successive as well as simultaneous, and there is some authority to show that it may be. A wrongful or negligent voluntary act of Peter may create a state of things giving an opportunity for another wrongful or negligent act of John, as well as for pure accidents. If harm is then caused by John’s act, which act is of a kind that Peter might have reasonably foreseen, Peter and John may both be liable; and this whether John’s act be wilful or not, for many kinds of negligent and wilfully wrongful acts are unhappily common, and a prudent man cannot shut his eyes to the probability that somebody will commit them if temptation is put in the way. One is not entitled to make obvious occasions for negligence. A. leaves the flap of a cellar in an insecure position on a highway where all manner of persons, adult and infant, wise and foolish, are accustomed to pass. B. in carelessly passing, or playing with the flap, brings it down on himself, or on C. In the former case B. has suffered from his own negligence and cannot sue A. In the latter B. is liable to C. but it may well be that a prudent man in A.’s place would have foreseen and guarded against the risk of a thing so left exposed in a public place being meddled with by some careless person, and if a jury is of that opinion A. may also be liable to C.(c) . Where A. placed a dangerous obstruction in a road, and it was removed by some unexplained act of an unknown third person to another part of the same road where Z., a person lawfully using the road, came against it in the dark and was injured, A. was held liable to Z., though there was nothing to show whether the third person’s act was or was not lawful or done for a lawful purpose(d) .

Accidents to children in custody of adult. Another special class of cases requires consideration. If A. is a child of tender years (or other person incapable of taking ordinary care of himself), but in the custody of M., an adult, and one or both of them suffer harm under circumstances tending to prove negligence on the part of Z., and also contributory negligence on the part of M.(e) , Z. will not be liable to A. if M.’s negligence alone was the proximate cause of the mischief. Therefore if M. could, by such reasonable diligence as is commonly expected of persons having the care of young children, have avoided the consequences of Z.’s negligence, A. is not entitled to sue Z.: and this not because M.’s negligence is imputed by a fiction of law to A., who by the hypothesis is incapable of either diligence or negligence, but because the needful foundation of liability is wanting, namely, that Z.’s negligence, and not something else for which Z. is not answerable and which Z. had no reason to anticipate, should be the proximate cause.

Children, &c., unattended. Now take the case of a child not old enough to use ordinary care for its own safety, which by the carelessness of the person in charge of it is allowed to go alone in a place where it is exposed to danger. If the child comes to harm, does the antecedent negligence of the custodian make any difference to the legal result? On principle surely not, unless a case can be conceived in which that negligence is the proximate cause. The defendant’s duty can be measured by his notice of special risk and his means of avoiding it; there is no reason for making it vary with the diligence or negligence of a third person in giving occasion for the risk to exist. If the defendant is so negligent that an adult in the plaintiff’s position could not have saved himself by reasonable care, he is liable. If he is aware of the plaintiff’s helplessness, and fails to use such special precaution as is reasonably possible, then also, we submit, he is liable. If he did not know, and could not with ordinary diligence have known, the plaintiff to be incapable of taking care of himself(f) , and has used such diligence as would be sufficient towards an adult; or if, being aware of the danger, he did use such additional caution as he reasonably could; or if the facts were such that no additional caution was practicable, and there is no evidence of negligence according to the ordinary standard(g) , then the defendant is not liable.

No English decision has been met with that goes the length of depriving a child of redress on the ground that a third person negligently allowed it to go alone(h) . In America there have been such decisions in Massachusetts(i) , New York, and elsewhere: “but there are as many decisions to the contrary”(j) : and it is submitted that both on principle and according to the latest authority of the highest tribunals in both countries they are right.

Child v. Hearn. In one peculiar case(k) the now exploded doctrine of “identification”(l) was brought in, gratuitously as it would seem. The plaintiff was a platelayer working on a railway; the railway company was by statute bound to maintain a fence to prevent animals(m) from straying off the adjoining land; the defendant was an adjacent owner who kept pigs. The fence was insufficient to keep out pigs(n) . Some pigs of the defendant’s found their way on to the line, it did not appear how, and upset a trolly worked by hand on which the plaintiff and others were riding back from their work. The plaintiff’s case appears to be bad on one or both of two grounds; there was no proof of actual negligence on the defendant’s part, and even if his common-law duty to fence was not altogether superseded, as regards that boundary, by the Act casting the duty on the railway company, he was entitled to assume that the company would perform their duty; and also the damage was too remote(o) . But the ground actually taken was “that the servant can be in no better position than the master when he is using the master’s property for the master’s purposes,” or “the plaintiff is identified with the land which he was using for his own convenience.” This ground would now clearly be untenable.

Admiralty rule of dividing loss. The common law rule of contributory negligence is unknown to the maritime law administered in courts of Admiralty jurisdiction. Under a rough working rule commonly called judicium rusticum, and apparently derived from early medieval codes or customs, with none of which, however, it coincides in its modern application(p) , the loss is equally divided in cases of collision where both ships are found to have been in fault. “The ancient rule applied only where there was no fault in either ship”(q) ; as adopted in England, it seems more than doubtful whether the rule made any distinction, until quite late in the eighteenth century, between cases of negligence and of pure accident. However that may be, it dates from a time when any more refined working out of principles was impossible(r) . As a rule of thumb, which frankly renounces the pretence of being anything more, it is not amiss, and it appears to be generally accepted by those whom it concerns, although, as Mr. Marsden’s researches have shown, for about a century it has been applied for a wholly different purpose from that for which it was introduced in the older maritime law, and in a wholly different class of cases. By the Judicature Act, 1873(s) , the judicium rusticum is expressly preserved in the Admiralty Division.

IV.—

Auxiliary Rules and Presumptions.

Action under difficulty caused by another’s negligence. There are certain conditions under which the normal standard of a reasonable man’s prudence is peculiarly difficult to apply, by reason of one party’s choice of alternatives, or opportunities of judgment, being affected by the conduct of the other. Such difficulties occur mostly in questions of contributory negligence. In the first place, a man who by another’s want of care finds himself in a position of imminent danger cannot be held guilty of negligence merely because in that emergency he does not act in the best way to avoid the danger. That which appears the best way to a court examining the matter afterwards at leisure and with full knowledge is not necessarily obvious even to a prudent and skilful man on a sudden alarm. Still less can the party whose fault brought on the risk be heard to complain of the other’s error of judgment. This rule has been chiefly applied in maritime cases, where a ship placed in peril by another’s improper navigation has at the last moment taken a wrong course(s) : but there is authority for it elsewhere. A person who finds the gates of a level railway crossing open, and is thereby misled into thinking the line safe for crossing, is not bound to minute circumspection, and if he is run over by a train the company may be liable to him although “he did not use his faculties so clearly as he might have done under other circumstances”(t) . “One should not be held too strictly for a hasty attempt to avert a suddenly impending danger, even though his effort is ill-judged”(u) .

No duty to anticipate negligence of others. One might generalize the rule in some such form as this: not only a man cannot with impunity harm others by his negligence, but his negligence cannot put them in a worse position with regard to the estimation of default. You shall not drive a man into a situation where there is loss or risk every way, and then say that he suffered by his own imprudence. Neither shall you complain that he did not foresee and provide against your negligence. We are entitled to count on the ordinary prudence of our fellow-men until we have specific warning to the contrary. The driver of a carriage assumes that other vehicles will observe the rule of the road, the master of a vessel that other ships will obey the statutory and other rules of navigation, and the like. And generally no man is bound (either for the establishment of his own claims, or to avoid claims of third persons against him) to use special precaution against merely possible want of care or skill on the part of other persons who are not his servants or under his authority or control(x) .

It is not, as a matter of law, negligent in a passenger on a railway to put his hand on the door or the windowrod, though it might occur to a very prudent man to try first whether it was properly fastened; for it is the company’s business to have the door properly fastened(y) . On the other hand if something goes wrong which does not cause any pressing danger or inconvenience, and the passenger comes to harm in endeavouring to set it right himself, he cannot hold the company liable(z) .

Choice of risks under stress of another’s negligence. We have a somewhat different case when a person, having an apparent dilemma of evils or risks put before him by another’s default, makes an active choice between them. The principle applied is not dissimilar: it is not necessarily and of itself contributory negligence to do something which, apart from the state of things due to the defendant’s negligence, would be imprudent.

Clayards v. Dethick. The earliest case where this point is distinctly raised and treated by a full Court is Clayards v. Dethick(a) . The plaintiff was a cab-owner. The defendants, for the purpose of making a drain, had opened a trench along the passage which afforded the only outlet from the stables occupied by the plaintiff to the street. The opening was not fenced, and the earth and gravel excavated from the trench were thrown up in a bank on that side of it where the free space was wider, thus increasing the obstruction. In this state of things the plaintiff attempted to get two of his horses out of the mews. One he succeeded in leading out over the gravel, by the advice of one of the defendants then present. With the other he failed, the rubbish giving way and letting the horse down into the trench. Neither defendant was present at that time(b) . The jury were directed “that it could not be the plaintiff’s duty to refrain altogether from coming out of the mews merely because the defendants had made the passage in some degree dangerous: that the defendants were not entitled to keep the occupiers of the mews in a state of siege till the passage was declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger: though if the plaintiff had persisted in running upon a great and obvious danger, his action could not be maintained.” This direction was approved. Whether the plaintiff had suffered by the defendants’ negligence, or by his own rash action, was a matter of fact and of degree properly left to the jury: “the whole question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt.” The decision has been adversely criticised by Lord Bramwell, but principle and authority seem on the whole to support it(c) .

One or two of the railway cases grouped for practical purposes under the catch-word “invitation to alight” have been decided, in part at least, on the principle that, where a passenger is under reasonable apprehension that if he does not alight at the place where he is (though an unsafe or unfit one) he will not have time to alight at all, he may be justified in taking the risk of alighting as best he can at that place(d) ; notwithstanding that he might, by declining that risk and letting himself be carried on to the next station, have entitled himself to recover damages for the loss of time and resulting expense(e) .

Doctrine of New York Courts. There has been a line of cases of this class in the State of New York, where a view is taken less favourable to the plaintiff than the rule of Clayards v. Dethick. If a train fails to stop, and only slackens speed, at a station where it is timed to stop, and a passenger alights from it while in motion at the invitation of the company’s servants(f) , the matter is for the jury; so if a train does not stop a reasonable time for passengers to alight, and starts while one is alighting(g) . Otherwise it is held that the passenger alights at his own risk. If he wants to hold the company liable he must go on to the next station and sue for the resulting damage(h) .

On the other hand, where the defendant’s negligence has put the plaintiff in a situation of imminent peril, the plaintiff may hold the defendant liable for the natural consequences of action taken on the first alarm, though such action may turn out to have been unnecessary(i) . It is also held that the running of even an obvious and great risk in order to save human life may be justified, as against those by whose default that life is put in peril(k) . And this seems just, for a contrary doctrine would have the effect of making it safer for the wrong-doer to create a great risk than a small one. Or we may put it thus; that the law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some ablebodied person should expose himself to the same danger to effect a rescue.

Separation of law and fact in United States. American jurisprudence is exceedingly rich in illustrations of the questions discussed in this chapter, and American cases are constantly, and sometimes very freely, cited and even judicially reviewed(l) in our courts. It may therefore be useful to call attention to the peculiar turn given by legislation in many of the States to the treatment of points of “mixed law and fact.” I refer to those States where the judge is forbidden by statute (in some cases by the Constitution of the State)(m) to charge the jury as to matter of fact. Under such a rule the summing-up becomes a categorical enumeration of all the specific inferences of fact which it is open to the jury to find, and which in the opinion of the Court would have different legal consequences, together with a statement of those legal consequences as leading to a verdict for the plaintiff or the defendant. And it is the habit of counsel to frame elaborate statements of the propositions of law for which they contend as limiting the admissible findings of fact, or as applicable to the facts which may be found, and to tender them to the Court as the proper instructions to be given to the jury. Hence there is an amount of minute discussion beyond what we are accustomed to in this country, and it is a matter of great importance, where an appeal is contemplated, to get as little as possible left at large as matter of fact. Thus attempts are frequently made to persuade a Court to lay down as matter of law that particular acts are or are not contributory negligence(n) . Probably the common American doctrine that the plaintiff has to prove, as a sort of preliminary issue, that he was in the exercise of due care, has its origin in this practice. It is not necessary or proper for an English lawyer to criticize the convenience of a rigid statutory definition of the provinces of judge and jury. But English practitioners consulting the American reports must bear its prevalence in mind, or they may find many things hardly intelligible, and perhaps even suppose the substantive differences between English and American opinion upon points of pure law to be greater than they really are.

CHAPTER XII.

DUTIES OF INSURING SAFETY.

Exceptions to general limits of duties of caution.In general, those who in person go about an undertaking attended with risk to their neighbours, or set it in motion by the hand of a servant, are answerable for the conduct of that undertaking with diligence proportioned to the apparent risk. To this rule the policy of the law makes exceptions on both sides. As we have seen in the chapter of General Exceptions, men are free to seek their own advantage in the ordinary pursuit of business or uses of property, though a probable or even intended result may be to diminish the profit or convenience of others. We now have to consider the cases where a stricter duty has been imposed. As a matter of history, such cases cannot easily be referred to any definite principle. But the ground on which a rule of strict obligation has been maintained and consolidated by modern authorities is the magnitude of the danger, coupled with the difficulty of proving negligence as the specific cause in the event of the danger having ripened into actual harm. The law might have been content with applying the general standard of reasonable care, in the sense that a reasonable man dealing with a dangerous thing—fire, flood-water, poison, deadly weapons, weights projecting or suspended over a thoroughfare, or whatsoever else it be—will exercise a keener foresight and use more anxious precaution than if it were an object unlikely to cause harm, such as a faggot, or a loaf of bread. A prudent man does not handle a loaded gun or a sharp sword in the same fashion as a stick or a shovel. But the course adopted in England has been to preclude questions of detail by making the duty absolute; or, if we prefer to put it in that form, to consolidate the judgment of fact into an unbending rule of law. The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbour to such risk is held, although his act is not of itself wrongful, to insure his neighbour against any consequent harm not due to some cause beyond human foresight and control.

Rylands v. Fletcher. Various particular rules of this kind (now to be regarded as applications of a more general one) are recognized in our law from early times. The generalization was effected as late as 1868, by the leading case of Rylands v. Fletcher, where the judgment of the Exchequer Chamber delivered by Blackburn J. was adopted in terms by the House of Lords.

The nature of the facts in Fletcher v. Rylands, and the question of law raised by them, are for our purpose best shown by the judgment itself(a) :—

Judgment of Ex. Ch. “It appears from the statement in the case, that the plaintiff was damaged by his property being flooded by water, which, without any fault on his part, broke out of a reservoir, constructed on the defendants’ land by the defendants’ orders, and maintained by the defendants.

“It appears from the statement in the case, that the coal under the defendants’ land had at some remote period been worked out; but this was unknown at the time when the defendants gave directions to erect the reservoir, and the water in the reservoir would not have escaped from the defendants’ land, and no mischief would have been done to the plaintiff, but for this latent defect in the defendants’ subsoil. And it further appears that the defendants selected competent engineers and contractors to make their reservoir, and themselves personally continued in total ignorance of what we have called the latent defect in the subsoil; but that these persons employed by them in the course of the work became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings.

“It is found that the defendants personally were free from all blame, but that in fact proper care and skill was not used by the persons employed by them, to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir when filled with water burst into the shafts, the water flowed down through them into the old workings, and thence into the plaintiff’s mine, and there did the mischief.

“The plaintiff, though free from all blame on his part, must bear the loss unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect. . . . .

“We think that the true rule of law is, that the person who for his own purposes brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.”

Affirmation thereof by H. L. Not only was this decision affirmed in the House of Lords(b) , but the reasons given for it were fully confirmed. “If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage”(c) . It was not overlooked that a line had to be drawn between this rule and the general immunity given to landowners for acts done in the “natural user” of their land, or “exercise of ordinary rights”—an immunity which extends, as had already been settled by the House of Lords itself(d) , even to obviously probable consequences. Here Lord Cairns pointed out that the defendants had for their own purposes made “a non-natural use” of their land, by collecting water “in quantities and in a manner not the result of any work or operation on or under the land.”

The detailed illustration of the rule in Rylands v. Fletcher, as governing the mutual claims and duties of adjacent landowners, belongs to the law of property rather than to the subject of this work(e) . We shall return presently to the special classes of cases (more or less discussed in the judgment of the Exchequer Chamber) for which a similar rule of strict responsibility had been established earlier. As laying down a positive rule of law, the decision in Rylands v. Fletcher is not open to criticism in this country(f) . But in the judgment of the Exchequer Chamber itself the possibility of exceptions is suggested, and we shall see that the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting the responsibility of an insurer on innocent persons is a hard rule, though it may be a just one; and it needs to be maintained by very strong evidence(g) or on very clear grounds of policy. Now the judgment in Fletcher v. Rylands(h) , carefully prepared as it evidently was, hardly seems to make such grounds clear enough for universal acceptance. The liability seems to be rested only in part on the evidently hazardous character of the state of things artificially maintained by the defendants on their land. In part the case is assimilated to that of a nuisance(i) , and in part, also, traces are apparent of the formerly prevalent theory that a man’s voluntary acts, even when lawful and free from negligence, are prima facie done at his peril(k) , a theory which modern authorities have explicitly rejected in America, and do not encourage in England, except so far as Rylands v. Fletcher may itself be capable of being used for that purpose(l) . Putting that question aside, one does not see why the policy of the law might not have been satisfied by requiring the defendant to insure diligence in proportion to the manifest risk (not merely the diligence of himself and his servants, but the actual use of due care in the matter, whether by servants, contractors, or others), and throwing the burden of proof on him in cases where the matter is peculiarly within his knowledge. This indeed is what the law has done as regards duties of safe repair, as we shall presently see. Doubtless it is possible to consider Rylands v. Fletcher as having only fixed a special rule about adjacent landowners(m) : but it was certainly intended to enunciate something much wider.

Character of later cases. Yet no case has been found, not being closely similar in its facts, or within some previously recognized category, in which the unqualified rule of liability without proof of negligence has been enforced. We have cases where damages have been recovered for the loss of animals by the escape, if so it may be called, of poisonous vegetation or other matters from a neighbour’s land(n) . Thus the owner of yew trees, whose branches project over his boundary, so that his neighbour’s horse eats of them and is thereby poisoned, is held liable(n) ; and the same rule has been applied where a fence of wire rope was in bad repair, so that pieces of rusted iron wire fell from it into a close adjoining that of the occupier, who was bound to maintain the fence, and were swallowed by cattle which died thereof(o) . In these cases, however, it was not contended, nor was it possible to contend, that the defendants had used any care at all. The arguments for the defence went either on the acts complained of being within the “natural user” of the land, or on the damage not being such as could have been reasonably anticipated(p) . We may add that having a tree, noxious or not, permanently projecting over a neighbour’s land is of itself a nuisance, and letting decayed pieces of a fence, or anything else, fall upon a neighbour’s land for want of due repair is of itself a trespass. Then in Ballard v. Tomlinson(q) the sewage collected by the defendant in his disused well was an absolutely noxious thing, and his case was, not that he had done his best to prevent it from poisoning the water which supplied the plaintiff’s well, but that he was not bound to do anything.

Exception of act of God. On the other hand, the rule in Rylands v. Fletcher has been decided by the Court of Appeal not to apply to damage of which the immediate cause is the act of God(r) . And the act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have prevented its effects. It is enough that the accident should be such as human foresight could not be reasonably expected to anticipate; and whether it comes within this description is a question of fact(s) . The only material element of fact which distinguished the case referred to from Rylands v. Fletcher was that the overflow which burst the defendants’ embankment, and set the stored-up water in destructive motion, was due to an extraordinary storm. Now it is not because due diligence has been used that an accident which nevertheless happens is attributable to the act of God. And experience of danger previously unknown may doubtless raise the standard of due diligence for after-time(t) . But the accidents that happen in spite of actual prudence, and yet might have been prevented by some reasonably conceivable prudence, are not numerous, nor are juries, even if able to appreciate so fine a distinction, likely to be much disposed to apply it(u) . The authority of Rylands v. Fletcher is unquestioned, but Nichols v. Marsland has practically empowered juries to mitigate the rule whenever its operation seems too harsh.

Act of stranger, &c. Again the principal rule does not apply where the immediate cause of damage is the act of a stranger(x) , nor where the artificial work which is the source of danger is maintained for the common benefit of the plaintiff and the defendant(y) ; and there is some ground for also making an exception where the immediate cause of the harm, though in itself trivial, is of a kind outside reasonable expectation(z) .

Works required or authorized by law. There is yet another exception in favour of persons acting in the performance of a legal duty, or in the exercise of powers specially conferred by law. Where a zamíndár maintained, and was by custom bound to maintain, an ancient tank for the general benefit of agriculture in the district, the Judicial Committee agreed with the High Court of Madras in holding that he was not liable for the consequences of an overflow caused by extraordinary rainfall, no negligence being shown(a) . In the climate of India the storing of water in artificial tanks is not only a natural but a necessary mode of using land(b) . In like manner the owners of a canal constructed under the authority of an Act of Parliament are not bound at their peril to keep the water from escaping into a mine worked under the canal(c) . On the same principle a railway company authorized by Parliament to use locomotive engines on its line is bound to take all reasonable measures of precaution to prevent the escape of fire from its engines, but is not bound to more. If, notwithstanding the best practicable care and caution, sparks do escape and set fire to the property of adjacent owners, the company is not liable(d) . The burden of proof appears to be on the company to show that due care was used(e) , but there is some doubt as to this(f) .

G. W. R. Co. of Canada v. Braid. Some years before the decision of Rylands v. Fletcher the duty of a railway company as to the safe maintenance of its works was considered by the Judicial Committee on appeal from Upper Canada(g) . The persons whose rights against the company were in question were passengers in a train which fell into a gap in an embankment, the earth having given way by reason of a heavy rain-storm. It was held that “the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, though perhaps rarely, to occur.” And the manner in which the evidence was dealt with amounts to holding that the failure of works of this kind under any violence of weather, not beyond reasonable prevision, is of itself evidence of negligence. Thus the duty affirmed is a strict duty of diligence, but not a duty of insurance. Let us suppose now (what is likely enough as matter of fact) that in an accident of this kind the collapse of the embankment throws water, or earth, or both, upon a neighbour’s land so as to do damage there. The result of applying the rule in Rylands v. Fletcher will be that the duty of the railway company as landowner to the adjacent landowner is higher than its duty as carrier to persons whom it has contracted to carry safely; or property is more highly regarded than life and limb, and a general duty than a special one.

If the embankment was constructed under statutory authority (as in most cases it would be) that would bring the case within one of the recognized exceptions to Rylands v. Fletcher. But a difficulty which may vanish in practice is not therefore inconsiderable in principle.

Other cases of insurance liability. We shall now shortly notice the authorities, antecedent to or independent of Rylands v. Fletcher, which establish the rule of absolute or all but absolute responsibility for certain special risks.

Duty of keeping in cattle. Cattle trespass is an old and well settled head, perhaps the oldest. It is the nature of cattle and other live stock to stray if not kept in, and to do damage if they stray; and the owner is bound to keep them from straying on the land of others at his peril, though liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being(h) . So strict is the rule that if any part of an animal which the owner is bound to keep in is over the boundary, this constitutes a trespass. The owner of a stallion has been held liable on this ground for damage done by the horse kicking and biting the plaintiff’s mare through a wire fence which separated their closes(i) . The result of the authorities is stated to be “that in the case of animals trespassing on land, the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass”(k) .

Blackstone(l) says that “a man is answerable for not only his own trespass, but that of his cattle also:” but in the same breath he speaks of “negligent keeping” as the ground of liability, so that it seems doubtful whether the law was then clearly understood to be as it was laid down a century later in Cox v. Burbidge(m) . Observe that the only reason given in the earlier books (as indeed it still prevails in quite recent cases) is the archaic one that trespass by a man’s cattle is equivalent to trespass by himself.

The rule does not apply to damage done by cattle straying off a highway on which they are being lawfully driven: in such case the owner is liable only on proof of negligence(n) ; and the law is the same for a town street as for a country road(o) . Also a man may be bound by prescription to maintain a fence against his neighbour’s cattle(p) .

“Whether the owner of a dog is answerable in trespass for every unauthorized entry of the animal into the land of another, as is the case with an ox,” is a point still not clearly decided. The better opinion seems to favour a negative answer(q) .

Dangerous or vicious animals. Closely connected with this doctrine is the responsibility of owners of dangerous animals. “A person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril.” If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the animal to be mischievous, if it is of a notoriously fierce or mischievous species(r) . If the animal is of a tame and domestic kind, the owner is liable only on proof that he knew the particular animal to be “accustomed to bite mankind,” as the common form of pleading ran in the case of dogs, or otherwise vicious; but when such proof is supplied, the duty is absolute as in the former case. It is enough to show that the animal has on foregoing occasions manifested a savage disposition, whether with the actual result of doing mischief on any of those occasions or not(s) . But the necessity of proving the scienter, as it used to be called from the language of pleadings, is often a greater burden on the plaintiff than that of proving negligence would be; and as regards injury to cattle or sheep it has been done away with by statute. And the occupier of the place where a dog is kept is presumed for this purpose to be the owner of the dog(t) .

The word “cattle” includes horses(u) and perhaps pigs(v) .

Fire, fire-arms, &c. The risk incident to dealing with fire, fire-arms, explosive or highly inflammable matters, corrosive or otherwise dangerous or noxious fluids, and (it is apprehended) poisons, is accounted by the common law among those which subject the actor to strict responsibility. Sometimes the term “consummate care” is used to describe the amount of caution required: but it is doubtful whether even this be strong enough. At least, we do not know of any English case of this kind (not falling under some recognized head of exception) where unsuccessful diligence on the defendant’s part was held to exonerate him.

Duty of keeping in fire. As to fire, we find it in the fifteenth century stated to be the custom of the realm (which is the same thing as the common law) that every man must safely keep his own fire so that no damage in any wise happen to his neighbour(x) . In declaring on this custom, however, the averment was “ignem suum tam negligenter custodivit:” and it does not appear whether the allegation of negligence was traversable or not(y) . We shall see that later authorities have adopted the stricter view.

The common law rule applied to a fire made out of doors (for burning weeds or the like) as well as to fire in a dwelling-house(z) . Here too it looks as if negligence was the gist of the action, which is described (in Lord Raymond’s report) as “case grounded upon the common custom of the realm for negligently keeping his fire.” Semble, if the fire were carried by sudden tempest it would be excusable as the act of God. Liability for domestic fires has been dealt with by statute, and a man is not now answerable for damage done by a fire which began in his house or on his land by accident and without negligence(a) . He is answerable for damage done by fire lighted by an authorized person, whether servant or contractor, notwithstanding that the conditions of the authority have not all been complied with(b) .

The use of fire for non-domestic purposes, if we may coin the phrase, remains a ground of the strictest responsibility.

Carrying fire in locomotives. Decisions of our own time have settled that one who brings fire into dangerous proximity to his neighbour’s property, in such ways as by running locomotive engines on a railway without express statutory authority for their use(c) , or bringing a traction engine on a highway(d) , does so at his peril. And a company authorized by statute to run a steam-engine on a highway still does so at its peril as regards the safe condition of the way(d) .

It seems permissible to entertain some doubt as to the historical foundation of this doctrine, and in the modern practice of the United States it has not found acceptance(e) . In New York it has, after careful discussion, been expressly disallowed(f) .

Fire-arms: Dixon v. Bell. Loaded fire-arms are regarded as highly dangerous things, and persons dealing with them are answerable for damage done by their explosion, even if they have used apparently sufficient precaution. A man sent his maid-servant to fetch a flint-lock gun which was kept loaded, with a message to the master of the house to take out the priming first. This was done, and the gun delivered to the girl; she loitered on her errand, and (thinking, presumably, that the gun would not go off) pointed it in sport at a child, and drew the trigger. The gun went off and the child was seriously wounded. The owner was held liable, although he had used care, perhaps as much care as would commonly be thought enough. “It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing of the contents. The gun ought to have been so left as to be out of all reach of doing harm”(g) . This amounts to saying that in dealing with a dangerous instrument of this kind the only caution that will be held adequate in point of law is to abolish its dangerous character altogether. Observe that the intervening negligence of the servant (which could hardly by any ingenuity have been imputed to her master as being in the course of her employment) was no defence. Experience unhappily shows that if loaded fire-arms are left within the reach of children or fools, no consequence is more natural or probable than that some such person will discharge them to the injury of himself or others.

Explosives and other dangerous goods. On a like principle it is held that people sending goods of an explosive or dangerous nature to be carried are bound to give reasonable notice of their nature, and, if they do not, are liable for resulting damage. So it was held where nitric acid was sent to a carrier without warning, and the carrier’s servant, handling it as he would handle a vessel of any harmless fluid, was injured by its escape(h) . The same rule has been applied in British India to the case of an explosive mixture being sent for carriage by railway without warning of its character, and exploding in the railway company’s office, where it was being handled along with other goods(i) ; and it has been held in a similar case in Massachusetts that the consignor’s liability is none the less because the danger of the transport, and the damage actually resulting, have been increased by another consignor independently sending other dangerous goods by the same conveyance(k) .

Gas escapes. Gas (the ordinary illuminating coal-gas) is not of itself, perhaps, a dangerous thing, but with atmospheric air forms a highly dangerous explosive mixture, and also makes the mixed atmosphere incapable of supporting life(l) , Persons undertaking to deal with it are therefore bound, at all events, to use all reasonable diligence to prevent an escape which may have such results. A gas-fitter left an imperfectly connected tube in the place where he was working under a contract with the occupier; a third person, a servant of that occupier, entering the room with a light in fulfilment of his ordinary duties, was hurt by an explosion due to the escape of gas from the tube so left; the gas-fitter was held liable as for a “misfeasance independent of contract”(m) .

Poisonous drugs: Thomas v. Winchester. Poisons can do as much mischief as loaded fire-arms or explosives, though the danger and the appropriate precautions are different.

A wholesale druggist in New York purported to sell extract of dandelion to a retail druggist. The thing delivered was in truth extract of belladonna, which by the negligence of the wholesale dealer’s assistant had been wrongly labelled. By the retail druggist this extract was sold to a country practitioners, and by him to a customer, who took it as and for extract of dandelion, and thereby was made seriously ill. The Court of Appeals held the wholesale dealer liable to the consumer. “The defendant was a dealer in poisonous drugs . . . . The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label.” And the existence of a contract between the defendant and the immediate purchaser from him could make no difference, as its non-existence would have made none. “The plaintiff’s injury and their remedy would have stood on the same principle, if the defendant had given the belladonna to Dr. Foord” (the country practitioner) “without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale”—or administration without sale—“on the faith of the label”(n) . This case has been thought in England to go too far; but it is hard to see in what respect it goes farther than Dixon v. Bell. So far as the cases are dissimilar, the damage would seem to be not more but less remote. If one sends belladonna into the world labelled as dandelion (the two extracts being otherwise distinguishable only by minute examination) it is a more than probable consequence that some one will take it as and for dandelion and be the worse for it: and this without any action on the part of others necessarily involving want of due care(o) .

It can hardly be said that a wrongly labelled poison, whose true character is not discoverable by any ordinary examination such as a careful purchaser could or would make, is in itself less dangerous than a loaded gun. The event, indeed, shows the contrary.

Difficulties felt in England: George v. Skivington. Nevertheless difficulties are felt in England about admitting this application of a principle which in other directions is both more widely and more strictly applied in this country than in the United States(p) . In 1869 the Court of Exchequer made a rather hesitating step towards it, putting their judgment partly on the ground that the dispenser of the mischievous drug (in this case a hair wash) knew that it was intended to be used by the very person whom it in fact injured(q) . The cause of action seems to have been treated as in the nature of deceit, and Thomas v. Winchester does not seem to have been known either to counsel or to the Court. In the line actually taken one sees the tendency to assume that the ground of liability, if any, must be either warranty or fraud. But this is erroneous, as the judgment in Thomas v. Winchester carefully and clearly shows. Whether that case was well decided appears to be a perfectly open question for our courts(r) . In the present writer’s opinion it is good law, and ought to be followed. Certainly it comes within the language of Parke B. in Longmeid v. Holliday(s) , which does not deny legal responsibility “when any one delivers to another without notice an instrument in its nature dangerous under particular circumstances, as a loaded gun which he himself has loaded, and that other person to whom it is delivered is injured thereby; or if he places it in a situation easily accessible to a third person who sustains damage from it.” In that case the defendant had sold a dangerous thing, namely an ill-made lamp, which exploded in use, but it was found as a fact that he sold it in good faith, and it was not found that there was any negligence on his part. As lamps are not in their nature explosive, it was quite rightly held that on these facts the defendant could be liable only ex contractu, and therefore not to any person who could not sue on his contract or on a warranty therein expressed or implied.

Duties of occupiers of buildings, &c., in respect of safe repair. We now come to the duties imposed by law on the occupiers of buildings, or persons having the control of other structures intended for human use and occupation, in respect of the safe condition of the building or structure. Under this head there are distinctions to be noted both as to the extent of the duty, and as to the persons to whom it is owed.

Extent of the duty. The duty is founded not on ownership, but on possession, in other words, on the structure being maintained under the control and for the purposes of the person held answerable. It goes beyond the common doctrine of responsibility for servants, for the occupier cannot discharge himself by employing an independent contractor for the maintenance and repair of the structure, however careful he may be in the choice of that contractor. Thus the duty is described as being impersonal rather than personal. Personal diligence on the part of the occupier and his servants is immaterial. The structure has to be in a reasonably safe condition, so far as the exercise of reasonable care and skill can make it so(t) . To that extent there is a limited duty of insurance, as one may call it, though not a strict duty of insurance such as exists in the classes of cases governed by Rylands v. Fletcher.

Modern date of the settled rule: Indermaur v. Dames. The separation of this rule from the ordinary law of negligence, which is inadequate to account for it, has been the work of quite recent times. As lately as 1864(u) the Lord Chief Baron Pigot (of Ireland), in a very careful judgment, confessed the difficulty of discovering any general rule at all. Two years later a judgment of the Court of Common Pleas, delivered by Willes J., and confirmed by the Exchequer Chamber, gave us an exposition which has since been regarded on both sides of the Atlantic as a leading authority(x) . The plaintiff was a journeyman gas-fitter, employed to examine and test some new burners which had been supplied by his employer for use in the defendant’s sugar-refinery. While on an upper floor of the building, he fell through an unfenced shaft which was used in working hours for raising and lowering sugar. It was found as a fact that there was no want of reasonable care on the plaintiff’s part, which amounts to saying that even to a careful person not already acquainted with the building the danger was an unexpected and concealed one. The Court held that on the admitted facts the plaintiff was in the building as “a person on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest, and not upon bare permission.” They therefore had to deal with the general question of law “as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation express or implied. The common case is that of a customer in a shop: but it is obvious that this is only one of a class. . . . .

“The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied.

“And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact”(y) .

The Court goes on to admit that “there was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place would reasonably be, having regard to the contrivances necessarily used in carrying on the business.” On the facts they held that “there was evidence for the jury that the plaintiff was in the place by the tacit invitation of the defendant, upon business in which he was concerned; that there was by reason of the shaft unusual danger, known to the defendant; and that the plaintiff sustained damage by reason of that danger, and of the neglect of the defendant and his servants to use reasonably sufficient means to avert or warn him of it.” The judgment in the Exchequer Chamber(z) is little more than a simple affirmation of this.

Persons entitled to safety. It is hardly needful to add that a customer, or other person entitled to the like measure of care, is protected not only while he is actually doing his business, but while he is entering and leaving(a) . And the amount of care required is so carefully indicated by Willes J. that little remains to be said on that score. The recent cases are important chiefly as showing in respect of what kinds of property the duty exists, and what persons have the same rights as a customer. In both directions the law seems to have become, on the whole, more stringent in the present generation. With regard to the person, one acquires this right to safety by being upon the spot, or engaged in work on or about the property whose condition is in question, in the course of any business in which the occupier has an interest. It is not necessary that there should be any direct or apparent benefit to the occupier from the particular transaction(b) . Where gangways for access to ships in a dock were provided by the dock company, the company has been held answerable for their safe condition to a person having lawful business on board one of the ships; for the providing of access for all such persons is part of a dock-owner’s business; they are paid for it by the owners of the ships on behalf of all who use it(c) . A workman was employed under contract with a ship-owner to paint his ship lying in a dry dock, and the dock-owner provided a staging for the workman’s use; a rope by which the staging was supported, not being of proper strength, broke and let down the staging, and the man fell into the dock and was hurt; the dock-owner was held liable to him(d) . It was contended that the staging had been delivered into the control of the ship-owner, and became as it were part of the ship; but this was held no reason for discharging the dock-owner from responsibility for the condition of the staging as it was delivered. Persons doing work on ships in the dock “must be considered as invited by the dock-owner to use the dock and all appliances provided by the dock-owner as incident to the use of the dock”(e) . Similarly, the owner of a building let in flats is answerable for the safe condition of the common staircase to persons coming to do business with any of the tenants(f) .

A person lawfully entering on land, or into a building, in the discharge of a public duty or otherwise with justification, would seem to be in the same position as a customer and not to be a mere licensee, though such terms as “licence by authority of law” may sometimes be applied to these cases. We do not know of any English authority precisely in point, but the question has been raised in America.

Duty in respect of carriages, ships, &c. The possession of any structure to which human beings are intended to commit themselves or their property, animate or inanimate, entails this duty on the occupier, or rather controller. It extends to gangways or staging in a dock, as we have just seen; to a temporary stand put up for seeing a race or the like(g) ; to carriages travelling on a railway or road(h) , or in which goods are despatched(i) ; to ships(k) ; to wharves, in respect of the safety of the frontage for ships moored at or approaching the wharf(l) ; and to market-places(m) .

In the case of a wharfinger he is bound to use reasonable care to ascertain whether the bed of the harbour or river adjacent is in a safe condition to be used by a vessel coming to discharge at his wharf at reasonable times, having regard to the conditions of tide, the ship’s draught of water, and the like. But this duty exists only so far as the river bed is in the wharfinger’s possession or control(n) .

A railway passenger using one company’s train with a ticket issued by another company under an arrangement made between the companies for their common benefit is entitled, whether or not he can be said to have contracted with the first-mentioned company, to reasonably safe provision for his conveyance, not only as regards the construction of the carriage itself, but as regards its fitness and safety in relation to other appliances (as the platform of a station) in connexion with which it is intended to be used(o) . Where goods are lawfully shipped with the shipowner’s consent, it is the shipowner’s duty (even if he is not bound to the owner by any contract) not to let other cargo which will damage them be stowed in contact with them(p) . Owners of a cattle-market are bound to leave the market-place in a reasonably safe condition for the cattle of persons who come to the market and pay toll for its use(q) .

Limits of the duty. In the various applications we have mentioned, the duty does not extend to defects incapable of being discovered by the exercise of reasonable care, such as latent flaws in metal(r) ; though it does extend to all such as care and skill (not merely care and skill on the part of the defendant) can guard against(s) .

Again, when the builder of a ship or carriage, or the maker of a machine, has delivered it out of his own possession and control to a purchaser, he is under no duty to persons using it as to its safe condition, unless the thing was in itself of a noxious or dangerous kind, or (it seems) unless he had actual knowledge of its being in such a state as would amount to a concealed danger to persons using it in an ordinary manner and with ordinary care(t) .

Volenti non fit iniuria. Liability under the rule in Indermaur v. Dames(u) may be avoided not only by showing contributory negligence in the plaintiff, but by showing that the risk was as well known to him as to the defendant, and that with such knowledge he voluntarily exposed himself to it(v) ; but this will not excuse the breach of a positive statutory duty(x) .

Duty towards passers-by. Occupiers of fixed property are under a like duty towards persons passing or being on adjacent land by their invitation in the sense above mentioned, or in the exercise of an independent right.

In Barnes v. Ward(y) , the defendant, a builder, had left the area of an unfinished house open and unfenced. A person lawfully walking after dark along the public path on which the house abutted fell into the area and was killed. An action was brought under Lord Campbell’s Act, and the case was twice argued; the main point for the defence being that the defendant had only dug a hole in his own land, as he lawfully might, and was not under any duty to fence or guard it, as it did not interfere with the use of the right of way. The Court held there was a good cause of action, the excavation being so close to the public way as to make it unsafe to persons using it with ordinary care. The making of such an excavation amounts to a public nuisance “even though the danger consists in the risk of accidentally deviating from the road.” Lately it has been held that one who by lawful authority diverts a public path is bound to provide reasonable means to warn and protect travellers against going astray at the point of diversion(z) .

In Corby v. Hill(a) the plaintiff was a person using a private way with the consent of the owners and occupiers. The defendant had the like consent, as he alleged, to put slates and other materials on the road. No light or other safeguard or warning was provided. The plaintiff’s horse, being driven on the road after dark, ran into the heap of materials and was injured. It was held immaterial whether the defendant was acting under licence from the owners or not. If not, he was a mere trespasser; but the owners themselves could not have justified putting a concealed and dangerous obstruction in the way of persons to whom they had held out the road as a means of access(b) .

Here the plaintiff was (it seems)(c) only a licensee, but while the licence was in force he was entitled not to have the condition of the way so altered as to set a trap for him. The case, therefore, marks exactly the point in which a licensee’s condition is better than a trespasser’s.

Presumption of negligence (res ipsa loquitur). Where damage is done by the falling of objects into a highway from a building, the modern rule is that the accident, in the absence of explanation, is of itself evidence of negligence. In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some cause consistent with the due repair and careful management of the structure, he is liable. The authorities, though not numerous, are sufficient to establish the rule, one of them being the decision of a court of appeal. In Byrne v. Boadle(d) a barrel of flour fell from a window in the defendant’s warehouse in Liverpool, and knocked down the plaintiff, who was lawfully passing in the public street. There was no evidence to show how or by whom the barrel was being handled. The Court said this was enough to raise against the defendant a presumption of negligence which it was for him to rebut. “It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out. . . . A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be primâ facie evidence of negligence”(e) . This was followed, perhaps extended, in Kearney v. London, Brighton and South Coast Railway Co.(f) . There as the plaintiff was passing along a highway spanned by a railway bridge, a brick fell out of one of the piers of the bridge and struck and injured him. A train had passed immediately before. There was not any evidence as to the condition of the bridge and brickwork, except that after the accident other bricks were found to have fallen out. The Court held the maxim “res ipsa loquitur” to be applicable. “The defendants were under the common law liability to keep the bridge in safe condition for the public using the highway to pass under it;” and when “a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train,” it was for the defendants to show, if they could, that the event was consistent with due diligence having been used to keep the bridge in safe repair(g) . This decision has been followed, in the stronger case of a whole building falling into the street, in the State of New York. “Buildings properly constructed do not fall without adequate cause”(h) .

In a later case(i) the occupier of a house from which a lamp projected over the street was held liable for damage done by its fall, though he had employed a competent person (not his servant) to put the lamp in repair: the fall was in fact due to the decayed condition of the attachment of the lamp to its bracket, which had escaped notice. “It was the defendant’s duty to make the lamp reasonably safe, the contractor failed to do that . . . . therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences”(j) . In this case negligence on the contractor’s part was found as a fact.

Combining the principles affirmed in these authorities, we see that the owner of property abutting on a highway is under a positive duty to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against.

Distinctions. But where an accident happens in the course of doing on fixed property work which is proper of itself, and not usually done by servants, and there is no proof either that the work was under the occupier’s control or that the accident was due to any defective condition of the structure itself with reference to its ordinary purposes, the occupier is not liable(k) . In other words, he does not answer for the care or skill of an independent and apparently competent contractor in the doing of that which, though connected with the repair of a structure for whose condition the occupier does answer, is in itself merely incident to the contractor’s business and under his order and control.

There are cases involving principles and considerations very similar to these, but concerning the special duties of adjacent landowners or occupiers to one another rather than any general duty to the public or to a class of persons. We must be content here to indicate their existence, though in practice the distinction is not always easy to maintain(l) .

Position of licensees. Thus far we have spoken of the duties owed to persons who are brought within these risks of unsafe condition or repair by the occupier’s invitation on a matter of common interest, or are there in the exercise of a right. We have still to note the plight of him who comes on or near another’s property as a “bare licensee.” Such an one appears to be (with the possible exception of a mortgagee in possession) about the least favoured in the law of men who are not actual wrong-doers. He must take the property as he finds it, and is entitled only not to be led into danger by “something like fraud”(m) .

Persons who by the mere gratuitous permission of owners or occupiers take a short cut across a waste piece of land(n) , or pass over private bridges(o) , or have the run of a building(p) , cannot expect to find the land free from holes or ditches, or the bridges to be in safe repair, or the passages and stairs to be commodious and free from dangerous places. If the occupier, while the permission continues, does something that creates a concealed danger to people availing themselves of it, he may well be liable(q) . And he would of course be liable, not for failure in a special duty, but for wilful wrong, if he purposely made his property dangerous to persons using ordinary care, and then held out his permission as an inducement to come on it. Apart from this improbable case, the licensee’s rights are measured, at best, by the actual state of the property at the time of the licence.

“If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences: but, if I do nothing, I am not”(r) .

The occupier of a yard in which machinery was in motion allowed certain workmen (not employed in his own business) to use, for their own convenience, a path crossing it. This did not make it his duty to fence the machinery at all, or if he did so to fence it sufficiently; though he might have been liable if he had put up an insecure guard which by the false appearance of security acted as a trap(s) . The plaintiff, by having permission to use the path, had not the right to find it in any particular state of safety or convenience.

“Permission involves leave and licence, but it gives no right. If I avail myself of permission to cross a man’s land I do so by virtue of a licence, not of a right. It is an abuse of language to call it a right: it is an excuse or licence, so that the party cannot be treated as a trespasser”(t) . In the language of Continental jurisprudence, there is no question of culpa between a gratuitous licensee and the licensor, as regards the safe condition of the property to which the licence applies. Nothing short of dolus will make the licensor liable(u) .

Host and guest. Invitation is a word applied in common speech to the relation of host and guest. But a guest (that is, a visitor who does not pay for his entertainment) has not the benefit of the legal doctrine of invitation in the sense now before us. He is in point of law nothing but a licensee. The reason given is that he cannot have higher rights than a member of the household of which he has for the time being become, as it were, a part(x) . All he is entitled to is not to be led into a danger known to his host, and not known or reasonably apparent to himself.

On the same principle, a man who offers another a seat in his carriage is not answerable for an accident due to any defect in the carriage of which he was not aware(y) .

Liability of licensor for “ordinary negligence.” It may probably be assumed that a licensor is answerable to the licensee for ordinary negligence(z) , in the sense that his own act or omission will make him liable if it is such that it would create liability as between two persons having an equal right to be there: for example, if J. S. allows me to use his private road, it will hardly be said that, without express warning, I am to take the risk of J. S. driving furiously thereon. But the whole subject of a licensee’s rights and risks is still by no means free from difficulty.

Liability of owner not in occupation? It does not appear to have been ever decided how far, if at all, an owner of property not in possession can be subject to the kind of duties we have been considering. We have seen that in certain conditions he may be liable for nuisance(a) . But, since the ground of these special duties regarding safe condition and repair is the relation created by the occupier’s express or tacit “invitation,” it may be doubted whether the person injured can sue the owner in the first instance, even if the defect or default by which he suffered is, as between owner and occupier, a breach of the owner’s obligation.

CHAPTER XIII.

SPECIAL RELATIONS OF CONTRACT AND TORT.

Original theory of forms of action.The original theory of the common law seems to have been that there were a certain number of definite and mutually exclusive causes of action, expressed in appropriate forms. The test for ascertaining the existence or non-existence of a legal remedy in a given case was to see whether the facts could be brought under one of these forms. Not only this, but the party seeking legal redress had to discover and use the right form at his peril. So had the defendant if he relied on any special ground of defence as opposed to the general issue. If this theory had been strictly carried out, confusion between forms or causes of action would not have been possible. But strict adherence to the requirements of such a theory could be kept up only at the price of intolerable inconvenience. Hence not only new remedies were introduced, but relaxations of the older definitions were allowed. The number of cases in which there was a substantial grievance without remedy was greatly diminished, but the old sharply drawn lines of definition were overstepped at various points, and became obscured. Thus different forms and causes of action overlapped. In many cases the new form, having been introduced for greater practical convenience, simply took the place of the older, as an alternative which in practice was always or almost always preferred: but in other cases one or another remedy might be better according to the circumstances. Hence different remedies for similar or identical causes of action remained in use after the freedom of choice had been established with more or less difficulty.

On the debateable ground thus created between those states of fact which clearly give rise to only one kind of action and those which clearly offered an alternative, there arose a new kind of question, more refined and indeterminate than those of the earlier system, because less reducible to the test of fixed forms.

Actions on the case. The great instrument of transformation was the introduction of actions on the case by the Statute of Westminster(a) . Certain types of action on the case became in effect new and well recognized forms of action. But it was never admitted that the virtue of the statute had been exhausted, and it was probably rather the timidity of pleaders than the unwillingness of the judges that prevented the development from being even greater than it was. It may be asked in this connexion why some form of action on the case was not devised to compete with the jurisdiction of the Court of Chancery in enforcing trusts. An action on the case analogous to the action of account, if not the action of account itself, might well have been held to lie against a feoffee to uses at the suit of cestui que use. Probably the reason is to be sought in the inadequacy of the common law remedies, which no expansion of pleading could have got over. The theory of a system of equitable rights wholly outside the common law and its process, and inhabiting a region of mysteries unlawful for a common lawyer to meddle with, was not the cause but the consequence of the Court of Chancery’s final triumph.

The history of the Roman legis actiones may in a general way be compared with that of common law pleading in its earlier stages; and it may be found that the praetorian actions have not less in common with our actions on the case than with the remedies peculiar to courts of equity, which our text-writers have habitually likened to them.

Causes of action: modern classification of them as founded on contract or tort. Forms of action are now abolished in England. But the forms of action were only the marks and appointed trappings of causes of action; and to maintain an action there must still be some cause of action known to the law. Where there is an apparent alternative, we are no longer bound to choose at our peril, and at the very outset, on which ground we will proceed, but we must have at least one definite ground. The question, therefore, whether any cause of action is raised by given facts is as important as ever it was. The question whether there be more than one is not as a rule material in questions between the same parties. But it may be (and has been) material under exceptional conditions: and where the suggested distinct causes of action affect different parties it may still be of capital importance.

In modern English practice, personal(b) causes of action cognizable by the superior courts of common law (and now by the High Court in the jurisdiction derived from them) have been regarded as arising either out of contract or out of wrongs independent of contract. This division was no doubt convenient for the working lawyer’s ordinary uses, and it received the high sanction of the framers of the Common Law Procedure Act, besides other statutes dealing with procedure. But it does not rest on any historical authority, nor can it be successfully defended as a scientific dichotomy. In fact the historical causes above mentioned have led to intersection of the two regions, with considerable perplexity for the consequence.

We have causes of action nominally in contract which are not founded on the breach of any agreement, and we have torts which are not in any natural sense independent of contract.

This border-land between the law of tort and the law of contract will be the subject of examination in this chapter.

Classes of questions arising. The questions to be dealt with may be distributed under the following heads:—

• 1. Alternative forms of remedy on the same cause of action.
• 2. Concurrent or alternative causes of action.
• 3. Causes of action in tort dependent on a contract not between the same parties.
• 4. Measure of damages and other incidents of the remedy.

I.—

Alternative Forms of Remedy on the same Cause of Action.

One cause of action and alternative remedies. It may be hard to decide whether particular cases fall under this head or under the second, that is, whether there is one cause of action which the pleader has or had the choice of describing in two ways, or two distinct causes of action which may possibly confer rights on and against different parties. In fact the most difficult questions we shall meet with are of this kind.

The common law doctrine of misfeasance. Misfeasance in doing an act in itself not unlawful is ground for an action on the case(c) . It is immaterial that the act was not one which the defendant was bound to do at all(d) . If a man will set about actions attended with risk to others, the law casts on him the duty of care and competence. It is equally immaterial that the defendant may have bound himself to do the act, or to do it competently. The undertaking, if undertaking there was in that sense, is but the occasion and inducement of the wrong. From this root we have, as a direct growth, the whole modern doctrine of negligence. We also have, by a more artificial process, the modern method of enforcing simple contracts, through the specialized form of this kind of action called assumpsit(e) : the obligation being extended, by a bold and strictly illogical step, to cases of pure non-feasance(f) , and guarded by the requirement of consideration. Gradually assumpsit came to be thought of as founded on a duty ex contractu; so much so that it might not be joined with another cause of action on the case, such as conversion. From a variety of action on the case it had become a perfect species, and in common use its origin was forgotten. But the old root was there still, and had life in it at need. Thus it might happen that facts or pleadings which in the current modern view showed an imperfect cause of action in assumpsit would yet suffice to give the plaintiff judgment on the more ancient ground of misfeasance in a duty imposed by law. In the latest period of common law pleading the House of Lords upheld in this manner a declaration for negligence in the execution of an employment, which averred an undertaking of the employment, but not any promise to the plaintiff, nor, in terms, any consideration(g) . And it was said that a breach of duty in the course of employment under a contract would give rise to an action either in contract or in tort at the plaintiff’s election(h) . This, it will be seen, is confined to an active misdoing; notwithstanding the verbal laxity of one or two passages, the House of Lords did not authorize parties to treat the mere non-performance of a promise as a substantive tort(i) . Until the beginning of this century it was the common practice to sue in tort for the breach of an express warranty, though it was needless to allege or prove the defendant’s knowledge of the assertion being false(j) .

On the other hand, it was held for a considerable time(k) that an action against a common carrier for loss of goods, even when framed in tort, “sounded in contract” so much that it could not be distinguished from assumpsit, and a count so framed could not be properly joined with other forms of case, such as trover. At a later time it was held, for the purpose of a plea in abatement, that the declaration against a carrier on the custom of the realm was in substance ex contractu(l) .

There are certain kinds of employment, namely those of a carrier and an innkeeper, which are deemed public in a special sense. If a man holds himself out as exercising one of these, the law casts on him the duty of not refusing the benefit thereof, so far forth as his means extend, to any person who properly applies for it. The innkeeper must not without a reasonable cause refuse to entertain a traveller, or the carrier to convey goods. Thus we have a duty attached to the mere profession of the employment, and antecedent to the formation of any contract; and if the duty is broken, there is not a breach of contract but a tort, for which the remedy under the common law forms of pleading is an action on the case. In effect refusing to enter into the appropriate contract is of itself a tort. Duties of the same class may be created by statute, expressly or by necessary implication; they are imposed for the benefit of the public, and generally by way of return for privileges conferred by the same statutes, or by others in pari materia, on the persons or corporations who may be concerned.

Special duty of carriers and innkeepers by “custom of the realm.” Here the duty is imposed by the general law, though by a peculiar and somewhat anomalous rule; and it gives rise to an obligation upon a simple non-feasance, unless we say that the profession of a “public employment” in this sense is itself a continuing act, in relation to which the refusal to exercise that employment on due demand is a misfeasance. But on this latter view there would be no reason why the public profession of any trade or calling whatever should not have the like consequences; and such an extension of the law has never been proposed.

The term “custom of the realm” has been appropriated to the description of this kind of duties by the current usage of lawyers, derived apparently from the old current form of declaration. It seems however that in strictness “custom of the realm” has no meaning except as a synonym of the common law, so that express averment of it was superfluous(l) .

Even where the breach of duty is subsequent to a complete contract in any employment of this kind, it was long the prevailing opinion that the obligation was still founded on the custom of the realm, and that the plaintiff might escape objections which (under the old forms of procedure) would have been fatal in an action on a contract(m) .

Alternative of form does not affect substance of duty or liability. In all other cases under this head there are not two distinct causes of action even in the alternative, nor distinct remedies, but one cause of action with, at most, one remedy in alternative forms. And it was an established rule, as long as the forms of action were in use, that the rights and liabilities of the parties were not to be altered by varying the form. Where there is an undertaking without a contract, there is a duty incident to the undertaking(n) , and if it is broken there is a tort, and nothing else. The rule that if there is a specific contract, the more general duty is superseded by it, does not prevent the general duty from being relied on where there is no contract at all(o) . Even where there is a contract, our authorities do not say that the more general duty ceases to exist, or that a tort cannot be committed; but they say that the duty is “founded on contract.” The contract, with its incidents either express or attached by law, becomes the only measure of the duties between the parties. There might be a choice, therefore, between forms of pleading, but the plaintiff could not by any device of form get more than was contained in the defendant’s obligation under the contract.

Thus an infant could not be made chargeable for what was in substance a breach of contract by suing him in an action on the case; and the rule appears to have been first laid down for this special purpose. All the infants in England would be ruined, it was said, if such actions were allowed(p) . So a purchaser of goods on credit, if the vendor resold the goods before default in payment, could treat this as a conversion and sue in trover; but as against the seller he could recover no more than his actual damage, in other words the substance of the right was governed wholly by the contract(q) .

Yet the converse of this rule does not hold without qualification. There are cases in which the remedy on a contract partakes of the restrictions usually incident to the remedy for a tort; but there are also cases in which not only an actual contract, but the fiction of a contract, can be made to afford a better remedy than the more obvious manner of regarding the facts.

Moreover it was held, for the benefit of plaintiffs, that where a man had a substantial cause of action on a contract he should not lose its incidents, such as the right to a verdict for nominal damages in default of proving special damage, by framing his action on the case(r) .

In modern view the obligation is wholly in contract. Now that forms of pleading are generally abolished or greatly simplified, it seems better to say that wherever there is a contract to do something, the obligation of the contract is the only obligation between the parties with regard to the performance, and any action for failure or negligence therein is an action on the contract; and this whether there was a duty antecedent to the contract or not. So much, in effect, has been laid down by the Court of Appeal as regards the statutory distinction of actions by the County Courts Act, for certain purposes of costs, as being “founded on contract” or “founded on tort”(s) . But injury by active misfeasance, which would have been a tort if there had not been any contract, is still a tort(t) .

From this point of view the permanent result of the older theory has been to provide a definite measure for duties of voluntary diligence, whether undertaken by contract or gratuitously, and to add implied warranties of exceptional stringency to the contracts of carriers, innkeepers, and those others (if any) whose employments fall under the special rule attributed to the “custom of the realm”(u) .

Limits of the rule. All these rules and restrictions, however, must be taken with regard to their appropriate subject-matter. They do not exclude the possibility of cases occurring in which there is more than an alternative of form.

If John has contracted with Peter, Peter cannot make John liable beyond his contract; that is, where the facts are such that a cause of action would remain if some necessary element of contract, consideration for example, were subtracted, Peter can, so to speak, waive John’s promise if he think fit, and treat him in point of form as having committed a wrong; but in point of substance he cannot thereby make John’s position worse. In saying this, however, we are still far from saying that there can in no case be a relation between Peter and John which includes the facts of a contract (and to that extent is determined by the obligation of the contract), but in some way extends beyond those facts, and may produce duties really independent of contract. Much less have we said that the existence of such a relation is not to be taken into account in ascertaining what may be John’s duties and liabilities to William or Andrew, who has not any contract with John. In pursuing such questions we come upon real difficulties of principle. This class of cases will furnish our next head.

II.—

Concurrent Causes of Action.

Concurrent causes of action. Herein we have to consider—

• (a) Cases where it is doubtful whether a contract has been formed or there is a contract “implied in law” without any real agreement in fact, and the same act which is a breach of the contract, if any, is at all events a tort;
• (b) Cases where A. can sue B. for a tort though the same facts may give him a cause of action against M. for breach of contract;
• (c) Cases where A. can sue B. for a tort though B.’s misfeasance may be a breach of a contract made not with A. but with M.

Cases of tort, whether contract or no contract between same parties. (a) There are two modern railway cases in which the majority of the Court held the defendants liable on a contract, but it was also said that even if there was no contract there was an independent cause of action. In Denton v. Great Northern Railway Company(u) , an intending passenger was held to have a remedy for damage sustained by acting on an erroneous announcement in the company’s current time-table, probably on the footing of the time-table being the proposal of a contract, but certainly on the ground of its being a false representation. In Austin v. Great Western Railway Company(x) , an action for harm suffered in some accident of which the nature and particulars are not reported, the plaintiff was a young child just above the age up to which children were entitled to pass free. The plaintiff’s mother, who had charge of him, took a ticket for herself only. It was held that the company was liable either on an entire contract to carry the mother and the child (enuring, it seems, for the benefit of both, so that the action was properly brought by the child)(y) , or independently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely(z) . Such a passenger is, in the absence of fraud, in the position of using the railway company’s property by invitation, and is entitled to the protection given to persons in that position by a class of authorities now well established(a) . Whether the company is under quite the same duty towards him, in respect of the amount of diligence required, as towards a passenger with whom there is an actual contract, is not so clear on principle(b) . The point is not discussed in any of the cases now under review.

Again if a servant travelling with his master on a railway loses his luggage by the negligence of the company’s servants, it is immaterial that his ticket was paid for by his master, and he can sue in his own name for the loss. Even if the payment is not regarded as made by the master as the servant’s agent, as between themselves and the company(c) , the company has accepted the servant and his goods to be carried, and is answerable upon the general duty thus arising, a duty which would still exist if the passenger and his goods were lawfully in the train without any contract at all(d) . Evidently the plaintiff in a case of this kind must make his choice of remedies, and cannot have a double compensation for the same matter, first as a breach of contract and then as a tort; at the same time the rule that the defendant’s liability must not be increased by varying the form of the claim is not here applicable, since the plaintiff may rely on the tort notwithstanding the existence of doubt whether there be any contract, or, if there be, whether the plaintiff can sue on it.

Contract “implied in law” and waiver of tort. On the other hand we have cases in which an obvious tort is turned into a much less obvious breach of contract with the undisguised purpose of giving a better and more convenient remedy. Thus it is an actionable wrong to retain money paid by mistake, or on a consideration which has failed, and the like; but in the eighteenth century the fiction of a promise “implied in law” to repay the money so held was introduced, and afforded “a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund”(e) , and even to cases where goods taken or retained by wrong had been converted into money. The plaintiff was said to “waive the tort” for the purpose of suing in assumpsit on the fictitious contract. Hence the late Mr. Adolphus wrote in his idyllic poem “The Circuiteers”:

• “Thoughts much too deep for tears subdue the Court
• When I assumpsit bring, and godlike waive a tort”(f) .

This kind of action was much fostered by Lord Mansfield, whose exposition confessed the fiction of the form while it justified the utility of the substance(g) . It was carried so far as to allow the master of an apprentice who had been enticed away to sue the person who had wrongfully employed him in an action of indebitatus assumpsit for the value of the apprentice’s work(h) .

Implied warranty of agent’s authority (Collen v. Wright). Within still recent memory an essentially similar fiction of law has been introduced in the case of an ostensible agent obtaining a contract in the name of a principal whose authority he misrepresents. A person so acting is liable for deceit only if the misrepresentation is fraudulent, and that liability (when it exists), being purely in tort, does not extend to his executors. Neither can the professed agent, whether acting in good faith or not, be held personally liable on a contract which he purported to make in the name of an existing principal, though for some time it was a current opinion that he was so liable. To meet these difficulties it was held in Collen v. Wright(i) that when a man purports to contract as agent there is an implied warranty that he is really authorized by the person named as principal, on which warranty he or his estate will be answerable ex contractu. Just as in the case of the old “common counts,” the fact that the action lies against executors shows that there is not merely one cause of action capable of being expressed, under the old system of pleading, in different ways, but two distinct though concurrent causes of action, with a remedy upon either at the plaintiff’s election.

We pass from these to the more troublesome cases where the causes of action in contract and in tort are not between the same parties.

Concurrent causes of action against different parties in contract and in tort. (b) There may be two causes of action with a common plaintiff, or the same facts may give Z. a remedy in contract against A. and also a remedy in tort against B.

The lessee of a steam ferry at Liverpool, having to meet an unusual press of traffic, hired a vessel with its crew from other shipowners to help in the work of the ferry for a day.Dalyell v. Tyrer. The plaintiff held a season-ticket for the ferry, and therefore had a contract with the lessee to be carried across with due skill and care. He crossed on this day in the hired vessel; by the negligence of some of the crew there was an accident in mooring the vessel on her arrival at the farther shore, and the plaintiff was hurt. He sued not the lessee of the ferry but the owners of the hired vessel; and it was held that he was entitled to do so. The persons managing the vessel were still the servants of the defendants, her owners, though working her under a contract of hiring for the purposes of the ferry; and the defendants would be answerable for their negligence to a mere stranger lawfully on board the vessel or standing on the pier at which she was brought up. The plaintiff was lawfully on their vessel with their consent, and they were not the less responsible to him because he was there in exercise of a right acquired by contract upon a consideration paid to some one else(k) .

Foulkes v. Met. Dist. R. Co. A leading decision on facts of this kind was given by the Court of Appeal in 1880(l) .

The plaintiff, a railway passenger with a return ticket alighting at his destination at the end of the return journey, was hurt by reason of the carriages being unsuitable to the height of the platform at that station. This station and platform belonged to one company (the South Western), by whose clerk the plaintiff’s ticket had been issued: the train belonged to another company (the District) who used the station and adjoining line under running powers. There was an agreement between the two companies whereby the profits of the traffic were divided. The plaintiff sued the District Company, and it was held that they were liable to him even if his contract was with the South Western Company alone. The District Company received him as a passenger in their train, and were bound to provide carriages not only safe and sound in themselves, but safe with reference to the permanent way and appliances of the line. In breach of this duty they provided, according to the facts as determined by the jury, a train so ordered that “in truth the combined arrangements were a trap or snare,” and would have given the plaintiff a cause of action though he had been carried gratuitously(m) . He had been actually received by the defendants as a passenger, and thereby they undertook the duty of not exposing him to unreasonable peril in any matter incident to the journey.

Causes of action in contract and tort at suit of different plaintiffs. (c) There may be two causes of action with a common defendant, or the same act or event which makes A. liable for a breach of contract to B. may make him liable for a tort to Z.

The case already mentioned of the servant travelling by railway with his master would be an example of this if it were determined on any particular state of facts that the railway company contracted only with the master. They would not be less under a duty to the servant and liable for a breach thereof because they might also be liable to the master for other consequences on the ground of a breach of their contract with him(n) .

Again, an officer in Her Majesty’s service and his baggage were carried under a contract made with the carriers on behalf of the Government of India; this did not prevent the carriers from being liable to the officer if his goods were destroyed in the course of the journey by the negligence of their servants. “The contract is no concern of the plaintiff’s; the act was none the less a wrong to him”(o) . He could not charge the defendants with a breach of contract, but they remained answerable for “an affirmative act injurious to the plaintiff’s property”(p) .

Alton v. Midland R. Co., qu. whether good law. The decision of the Court of Common Pleas in Alton v. Midland Railway Co.(q) is difficult to reconcile with the foregoing authorities. A servant travelling by railway on his master’s business (having paid his own fare) received hurt, as was alleged, by the negligence of the railway company’s servants, and the master sued the company for loss of service consequent on this injury. It was held that the action would not lie, the supposed cause of action arising, in the opinion of the Court, wholly out of the company’s contract of carriage; which contract being made with the servant, no third person could found any right upon it. “The rights founded on contract belong to the person who has stipulated for them”(r) ; and it is denied that there was any duty independent of contract(s) . But it is not explained in any of the judgments how this view is consistent with the authorities relied on for the plaintiff, and in particular with Marshall’s case, a former decision of the same Court. The test question, whether the reception of the plaintiff’s servant as a passenger would not have created a duty to carry him safely if there had not been any contract with him, is not directly, or, it is submitted, adequately dealt with. The case, though expressly treated by the Court as of general importance, has been but little cited or relied on during the thirty years that have now passed; and the correctness of the decision was disputed (extrajudicially, it is true) by Sir E. V. Williams(t) . A directly contrary decision has also been given in the State of Massachusetts(u) . Alton’s case, moreover, seems to be virtually overruled by Foulkes’s case, which proceeds on the existence of a duty not only in form but in substance independent of contract. The only way of maintaining the authority of both decisions would be to say that in Alton’s case the master could not recover because the servant had a contract with the defendant railway company, but that he might have been entitled to recover if the servant had been travelling with a free pass, or with a ticket taken and paid for by a stranger, or issued by another company, or had suffered from a fault in the permanent way or the structure of a station. But such a distinction does not appear reasonable.

It might perhaps have been argued that at all events such negligence must be shown as would make a carrier of passengers liable to a person being carried gratuitously; it might also be open to argument whether the person injured (apparently a commercial traveller) was really the servant of the plaintiff in such a sense that an action could be maintained for the loss of his service. Doubtless the action for wrong to a servant per quod servitium amisit is of an archaic character and not favoured in our modern law, and this may have unconsciously influenced the Court. Neither of these points, however, was discussed, nor indeed were they open to discussion upon the issues of law raised by the pleadings, on which alone the case was argued and decided. The questions what degree of negligence must be shown, whether a mere non-feasance would be enough, or the like, could have been properly raised only when the evidence came out(x) .

The most ingenious reason for the judgment of the Court is that of Willes J., who said that to allow such an action would be to allow a stranger to exercise and determine the election (of suing in contract or tort) which the law gives only to the person actually injured. But it is submitted that the latter is (or was) required to elect between the two causes of action as a matter of remedy, not of right, and because he is to be compensated once and once only for the same damage; and that such election neither affects nor is affected by the position of a third person. Moreover the master does not sue as a person claiming through the servant, but in a distinct right. The cause of action and the measure of damages are different(y) . On the whole the weight of principle and authority seems to be so strong against Alton’s case that, notwithstanding the respect due to the Court before which it came, and which included one of the greatest masters of the common law at any time, the only legitimate conclusion is that it was wrongly decided.

The case has now been commented on in the Court of Appeal with doubt only short of express disapproval(z) .

Winterbottom v. Wright, &c. It appears, then, that there has been a certain tendency to hold that facts which constitute a contract cannot have any other legal effect. We think we have shown that such is not really the law, and we may add that the authorities commonly relied on for this proposition really prove something different and much more rational, namely, that if A. breaks his contract with B. (which may happen without any personal default in A. or A.’s servants), that is not of itself sufficient to make A. liable to C., a stranger to the contract, for consequential damage. This, and only this, is the substance of the perfectly correct decisions of the Court of Exchequer in Winterbottom v. Wright(a) and Longmeid v. Holliday(b) . In each case the defendant delivered, under a contract of sale or hiring, a chattel which was in fact unsafe to use, but in the one case was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract, using the chattel—a coach in the one case, a lamp in the other—in the ordinary way, came to harm through its dangerous condition, and was held not to have any cause of action against the purveyor. Not in contract, for there was no contract between these parties; not in tort, for no bad faith or negligence on the defendant’s part was proved. If bad faith(c) or misfeasance by want of ordinary care(d) had been shown, or, it may be, if the chattels in question had been of the class of eminently dangerous things which a man deals with at his peril(e) , the result would have been different. With regard to the last-mentioned class of things the policy of the law has created a stringent and peculiar duty, to which the ordinary rule that the plaintiff must make out either wilful wrong-doing or negligence does not apply. There remain over some few miscellaneous cases currently cited on these topics, of which we have purposely said nothing because they are little or nothing more than warnings to pleaders(f) .

Concurrence of breach of contract with delict in Roman law. If, after this examination of the authorities, we cannot get rid of the notion that the concurrence of distinct causes of action ex delicto and ex contractu is a mere accident of common law procedure, we have only to turn to the Roman system and find the same thing occurring there. A freeborn filius familias, being an apprentice, is immoderately beaten by his master for clumsiness about his work. The apprentice’s father may have an action against the master either on the contract of hiring (ex locato)(g) , or at his option an action under the lex Aquilia, since the excess in an act of correction which within reasonable bounds would have been lawful amounts to culpa(h) . It is like the English cases we have cited where there was held to be a clear cause of action independent of contract, so that it was not necessary for the plaintiff to make out a breach of contract as between the defendant and himself.

III.—

Causes of action dependent on collateral contract. What did Lumley v. Gye decide?Causes of Action in Tort dependent on a Contract not between the same Parties.

(a) When a binding promise is made, an obligation is created which remains in force until extinguished by the performance or discharge of the contract. Does the duty thus owed to the promisee constitute the object of a kind of real right which a stranger to the contract can infringe, and thereby render himself answerable ex delicto? In other words, does a man’s title to the performance of a promise contain an element analogous to ownership or possession? The general principles of the law (notwithstanding forms of speech once in use, and warranted by considerable authority)(i) seem to call for a negative answer. It would confuse every accustomed boundary between real and personal rights, dominion and obligation, to hold that one who without any ill-will to Peter prevents Andrew from performing his contract with Peter may be a kind of trespasser against Peter(k) . For Peter has his remedy against Andrew, and never looked to having any other; and Andrew’s motives for breaking his contract are not material. Yet there is some show of authority for affirming the proposition thus condemned. It was decided by the Court of Queen’s Bench in Lumley v. Gye (1853)(l) , and by the Court of Appeal in Bowen v. Hall (1881)(m) , that an action lies, under certain conditions, for procuring a third person to break his contract with the plaintiff. We must, therefore, examine what the conditions of these cases were, and how far the rule laid down by them really extends.

Special damage and malice are of the gist of the action. First, it is admitted that actual damage must be alleged and proved(n) . This at once shows that the right violated is not an absolute and independent one like a right of property, for the possibility of a judgment for nominal damages is in our law the touchstone of such rights. Where specific damage is necessary to support an action, the right which has been infringed cannot be a right of property, though in some cases it may be incident to property.

Next, the defendant’s act must be malicious, in the sense of being aimed at obtaining some advantage for himself at the plaintiff’s expense, or at any rate at causing loss or damage to the plaintiff. In the decided cases the defendant’s object was to withdraw from a rival in business, and procure for himself, the services of a peculiarly skilled person—in the earlier case an operatic singer, in the later a craftsman to whom, in common with only a few others, a particular process of manufacture was known. Various cases may be put of a man advising a friend, in all honesty and without ill-will to the other contracting party, to abide the risks of breaking an onerous or mischievous contract rather than those of performing it(o) . And it would be unreasonable in such cases to treat the giving of such advice, if it be acted on, as a wrong. Lucilia has imprudently accepted an offer of marriage from Titius, her inferior in birth, station, and breeding: Lucilia’s brother Marcus, knowing Titius to be a man of bad character, persuades Lucilia to break off the match: shall any law founded in reason say that Marcus is liable to an action at the suit of Titius? Assuredly not: and there is no decision that authorizes any such proposition even by way of plausible extension. There must be a wrongful intent to do harm to the plaintiff before the right of action for procuring a breach of contract can be established. Mere knowledge that there is a subsisting contract will not do. The breach of contract is in truth material only because it excludes the defence that the act complained of, though harmful and intended to do harm, was done in the exercise of a common right. Even that defence has been held not to be available against an allegation of malice. An action has been allowed to lie for “maliciously” procuring persons not to enter into contracts. But the correctness of this decision seems doubtful(p) .

Question of remoteness of damage. In this view the real point of difficulty is reduced to this, that the damage may be deemed too remote to found the action upon. For if A. persuades B. to break his contract with Z., the proximate cause of Z.’s damage, in one sense, is not the conduct of A. but the voluntary act or default of B. We do not think it can be denied that there was a period in the history of the law when this objection would have been held conclusive. Certainly Lord Ellenborough laid it down as a general rule of law that a man is answerable only for “legal and natural consequence,” not for “an illegal consequence,” that is, a wrongful act of a third person(q) . But this opinion is now disapproved(r) .

The tendency of our later authorities is to measure responsibility for the consequences of an act by that which appeared or should have appeared to the actor as natural and probable, and not to lay down fixed rules which may run counter to the obvious facts. Here the consequence is not only natural and probable—if A.’s action has any consequence at all—but is designed by A.: it would, therefore, be contrary to the facts to hold that the interposition of B.’s voluntary agency necessarily breaks the chain of proximate cause and probable consequence. A proximate cause need not be an immediate cause.

Liability for negligence, as we have seen(s) , is not always or even generally excluded by what is called “contributory negligence of a third person.” In any case it would be strange if it lay in a man’s mouth to say that the consequence which he deliberately planned and procured is too remote for the law to treat as a consequence. The iniquity of such a defence is obvious in the grosser examples of the criminal law. Commanding, procuring, or inciting to a murder cannot have any “legal consequence,” the act of compliance or obedience being a crime; but no one has suggested on this ground any doubt that the procurement is also a crime.

Motive as an ingredient in the wrong. It may likewise be said that the general habit of the law is not to regard motive as distinguished from intent, and that the decision in Lumley v. Gye, as here understood and limited, is therefore anomalous at best. Now the general habit is as stated, but there are well established exceptions to it, of which the action for malicious prosecution is the most conspicuous: there it is clear law that indirect and improper motive must be added to the other conditions to complete the cause of action. The malicious procuring of a breach of contract, or of certain kinds of contracts, forms one more exception. It may be that the special damage which is the ground of the action must be such as cannot be redressed in an action for the breach of contract itself; in other words, that the contract must be for personal services, or otherwise of such a kind that an action against the contracting party would not afford an adequate remedy. But then the remedy against the wrong-doer will not be adequate either; so that there does not appear to be much rational ground for this limitation. The obvious historical connexion with the action for enticing away a servant will not help to fix the modern principle. Coleridge J. rightly saw that there was no choice between facing the broader issues now indicated and refusing altogether to allow that any cause of action appeared.

American doctrine. In America the decision in Lumley v. Gye has been followed in Massachusetts(t) and more lately by the Supreme Court of the United States(u) and is generally accepted, with some such limitation as here maintained. The rule “does not apply to a case of interference by way of friendly advice, honestly given; nor is it in denial of the right of free expression of opinion”(x) .

Wilful interference with contract without persuasion. It is, perhaps, needless to consider specially the case of a man wilfully preventing the performance of a contract by means other than persuasion; for in almost every such case the means employed must include an act in itself unlawful (as disabling one of the contracting parties by personal violence, or destroying or spoiling a specific thing contracted for); and, if so, the question comes round again to the general principles of remoteness of damage(y) .

Damage to stranger by breach of contract. (b) Procuring a breach of contract, then, may be actionable if maliciously done; or a contracting party may indirectly through the contract, though not upon it, have an action against a stranger. Can he become liable to a stranger? We have already seen that a misfeasance by a contracting party in the performance of his contract may be an independent wrong as against a stranger to the contract, and as such may give that stranger a right of action(z) . On the other hand, a breach of contract, as such, will generally not be a cause of action for a stranger(a) . And on this principle it is held by our courts that where a message is incorrectly transmitted by the servants of a telegraph company, and the person to whom it is delivered thereby sustains damage, that person has not any remedy against the company. For the duty to transmit and deliver the message arises wholly out of the contract with the sender, and there is no duty towards the receiver. Wilful alteration of a message might be the ground of an action for deceit against the person who altered it, as he would have knowingly made a false statement as to the contents of the message which passed through his hands. But a mere mistake in reading off or transmitting a letter or figure, though it may materially affect the sense of the despatch, cannot be treated as a deceit(b) .

Position of receiver of erroneous telegram: different views in England and U. S. “In America, on the other hand, one who receives a telegram which, owing to the negligence of the telegraph company, is altered or in other respects untrue, is invariably permitted to maintain an action against the telegraph company for the loss that he sustains through acting upon that telegram:” the latest commentator on the American authorities, however, finds the reasoning of the English courts difficult to answer(c) . And the American decisions appear to rest more on a strong sense of public expediency than on any one definite legal theory. The suggestion that there is something like a bailment of the message may be at once dismissed. Having regard to the extension of the action for deceit in certain English cases(d) , there is perhaps more to be said for the theory of misrepresentation than our courts have admitted; but this too is precarious ground. The real question of principle is whether a general duty of using adequate care can be made out. I am not bound to undertake telegraphic business at all; but if I do, am I not bound to know that errors in the transmission of messages may naturally and probably damnify the receivers? and am I not therefore bound, whether I am forwarding the messages under any contract or not, to use reasonable care to ensure correctness? I cannot warrant the authenticity or the material truth of the despatch, but shall I not be diligent in that which lies within my power, namely the delivery to the receiver of those words or figures which the sender intended him to receive? If the affirmative answer be right, the receiver who is misled may have a cause of action, namely for negligence in the execution of a voluntary undertaking attended with obvious risk. But a negative answer is given by our own courts, on the ground that the ordinary law of negligence has never been held to extend to negligence in the statement of facts (if it did, there would be no need of special rules as to deceit); and that the delivery of a message, whether by telegraph or otherwise, is nothing but a statement that certain words have been communicated by the sender to the messenger for the purpose of being by him communicated to the receiver. It may perhaps be said against this that the nature of telegraph business creates a special duty of diligence in correct statement, so that an action as for deceit will lie without actual fraud. But since the recent cases following Derry v. Peek(e) this could hardly be argued in England. Perhaps it would be better to say that the systematic undertaking to deliver messages in a certain way (much more the existence of a corporation for that special purpose) puts the case in a category of its own apart from representations of fact made in the common intercourse of life, or the repetition of any such representation. Thus we should come back to the old ground of the action on the case for misfeasance. The telegraph company would be in the same plight as the smith who pricks a horse with a nail, or the unskilful surgeon, and liable without any question of contract or warranty. Such liability would not necessarily be towards the receiver only, though damages incurred by any other person would in most cases be too remote. The Court of Appeal has for the present disposed of the matter for this country, and inland communication by telegraph is now in the hands of the Postmaster-General, who could not be sued even if the American doctrine were adopted. With regard to foreign telegrams, however, the rule is still of importance, and until the House of Lords has spoken it is still open to discussion.

The conflict considered on principle. In the present writer’s opinion the American decisions, though not all the reasons given for them, are on principle correct. The undertaking to transmit a sequence of letters or figures (which may compose significant words and sentences, but also may be, and often are, mere unintelligible symbols to the transmitter) is a wholly different thing from the statement of an alleged fact or the expression of a professed opinion in one’s own language. Generally speaking, there is no such thing as liability for negligence in word as distinguished from act; and this difference is founded in the nature of the thing(f) . If a man asserts as true that which he does not believe to be true, that is deceit; and this includes, as we have seen, making assertions as of his own knowledge about things of which he is consciously ignorant. If he only speaks, and purports to speak, according to his information and belief, then he speaks for his own part both honestly and truly, though his information and belief may be in themselves erroneous, and though if he had taken ordinary pains his information might have been better. If he expresses an opinion, that is his opinion for what it is worth, and others must estimate its worth for themselves. In either case, in the absence of a special duty to give correct information or a competent opinion, there is no question of wrong-doing. If the speaker has not come under any such duty, he was not bound to have any information or to frame any opinion. But where a particular duty has been assumed, it makes no difference that the speaking or writing of a form of words is an incident in the performance. If a medical practitioner miscopies a formula from a pharmacopœia or medical treatise, and his patient is poisoned by the druggist making it up as so copied, surely that is actionable negligence, and actionable apart from any contract. Yet his intention was only to repeat what he found in the book. It is true that the prescription, even if he states it to be taken out of the book, is his prescription, and he is answerable for its being a fit one; if it be exactly copied from a current book of good repute which states it to be applicable to such cases as the one in hand, that will be evidence, but only evidence, that the advice was competent.

Again the negligent misreading of an ancient record by a professed palæographist might well be a direct and natural cause of damage; if such a person, being employed under a contract with a solicitor, made a negligent mistake to the prejudice of the ultimate client, is it clear that the client might not have an action against him? If not, he may with impunity be negligent to the verge of fraud; for the solicitor, not being damnified, would have no cause of action, or at most a right to nominal damages on the contract. The telegraph clerk’s case is more like one of these (we do not say they are precisely analogous) than the mere reporting or repetition of supposed facts. There remains, no doubt, the argument that liability must not be indefinitely extended. But no one has proposed to abolish the general rule as to remoteness of damage, of which the importance, it is submitted, is apt to be obscured by contriving hard and fast rules in order to limit the possible combinations of the elements of liability. Thus it seems that even on the American view damages could not be recovered for loss arising out of an error in a ciphered telegram, for the telegraph company would have no notice of what the natural and probable consequences of error would be(g) .

Uncertainty still remaining in English doctrine. Taking together all the matters hitherto discussed in this chapter, it appears that different views and tendencies have on different occasions prevailed even in the same court, and that we are not yet in possession of a complete and consistent doctrine. Fleming’s case(h) is reconcilable, but only just reconcilable, with Foulkes’s case(i) , and Dickson v. Reuter’s Telegram Co.(k) , though not directly opposed to Bowen v. Hall(l) , is certainly not conceived in the same spirit.

Character of morally innocent acts affected by extraneous contract. (c) There are likewise cases where an innocent and even a prudent person will find himself within his right, or a wrong-doer, according as there has or has not been a contract between other parties under which the property or lawful possession of goods has been transferred. If a man fraudulently acquires property in goods, or gets delivery of possession with the consent of the true owner, he has a real though a defeasible title, and at any time before the contract is avoided (be it of sale or any form of bailment) he can give an indefeasible title by delivery over to a buyer or lender for valuable consideration given in good faith(m) . On the other hand a man may obtain the actual control and apparent dominion of goods not only without having acquired the property, but without any rightful transfer of possession. He may obtain possession by a mere trick, for example by pretending to be another person with whom the other party really intends to deal(n) , or the agent of that person(o) . In such a case a third person, even if he has no means of knowing the actual possessor’s want of title, cannot acquire a good title from him unless the sale is in market overt, or the transaction is within some special statutory protection, as that of the Factors Acts. He deals, however innocently, at his peril. In these cases there may be hardship, but there is nothing anomalous. It is not really a contract between other parties that determines whether a legal wrong has been committed or not, but the existence or non-existence of rights of property and possession—rights available against all the world—which in their turn exist or not according as there has been a contract, though perhaps vitiated by fraud as between the original parties, or a fraudulent obtaining of possession(p) without any contract. The question is purely of the distribution of real rights as affording occasion for their infringement, it may be an unconscious infringement. A man cannot be liable to A. for meddling with A.’s goods while there is an unsettled question whether the goods are A.’s or B.’s. But it cannot be a proposition in the law of torts that the goods are A.’s or B.’s, and it can be said to be, in a qualified sense, a proposition in the law of contract only because in the common law property and the right to possession can on the one hand be transferred by contract without delivery or any other overt act, and on the other hand the legal effect of a manual delivery or consignment may depend on the presence or absence of a true consent to the apparent purpose and effect of the act. The contract, or the absence of a contract, is only part of the incidents determining the legal situation on which the alleged tortious act operates. There are two questions, always conceivably and often practically distinct: Were the goods in question the goods of the plaintiff? Did the act complained of amount to a trespass or conversion? Both must be distinctly answered in the affirmative to make out the plaintiff’s claim, and they depend on quite different principles(o) . There is therefore no complication of contract and tort in these cases, but only—if we may so call it—a dramatic juxtaposition.

IV.—

Measure of Damages and other Incidents of the Remedy.

Measure of damages, &c. With regard to the measure of damages, the same principles are to a great extent applicable to cases of contract and of tort, and even rules which are generally peculiar to one branch of the law may be applied to the other in exceptional classes of cases.

The liability of a wrong-doer for his act is determined, as we have seen, by the extent to which the harm suffered by the plaintiff was a natural and probable consequence of the act. This appears to be also the true measure of liability for breach of contract; “the rule with regard to remoteness of damage is precisely the same whether the damages are claimed in actions of contract or of tort”(p) ; the judgment of what is natural and probable being taken as it would have been formed by a reasonable man in the defendant’s place at the date of the wrongful act, or the conclusion of the contract, as the case may be. No doubt there have been in the law of contract quite recent opinions of considerable authority casting doubt on the rule of Hadley v. Baxendale(q) , and tending to show that a contracting party can be held answerable for special consequences of a breach of his contract only if there has been something amounting to an undertaking on his part to bear such consequences; on this view even express notice of the probable consequences—if they be not in themselves of a common and obvious kind, such as the plaintiff’s loss of a difference between the contract and the market price of marketable goods which the defendant fails to deliver—would not of itself suffice(r) .

Rule as to consequential damage: how far alike in contract and tort. But the Court of Appeal has more lately disapproved this view, pointing out that a contracting party’s liability to pay damages for a breach is not created by his agreement to be liable, but is imposed by law. “A person contemplates the performance and not the breach of his contract; he does not enter into a kind of second contract to pay damages, but he is liable to make good those injuries which he is aware that his default may occasion to the contractee”(s) .

The general principle, therefore, is still the same in contract as in tort, whatever difficulty may be found in working it out in a wholly satisfactory manner in relation to the various combinations of fact occurring in practice(t) .

One point may be suggested as needful to be borne in mind to give a consistent doctrine. Strictly speaking, it is not notice of apprehended consequences that is material, but notice of the existing facts by reason whereof those consequences will naturally and probably ensue upon a breach of the contract(u) .

Vindictive character of action for breach of promise of marriage. Exemplary or vindictive damages, as a rule, cannot be recovered in an action on a contract, and it makes no difference that the breach of contract is a misfeasance capable of being treated as a wrong. Actions for breach of promise of marriage are an exception, perhaps in law, certainly in fact: it is impossible to analyse the estimate formed by a jury in such a case, or to prevent them from giving, if so minded, damages which in truth are, and are intended to be, exemplary(x) . Strictly the damages are by way of compensation, but they are “almost always considered by the jury somewhat in poenam”(y) . Like results might conceivably follow in the case of other breaches of contract accompanied with circumstances of wanton injury or contumely.

Contracts on which executors cannot sue. In another respect breach of promise of marriage is like a tort: executors cannot sue for it without proof of special damage to their testator’s personal estate; nor does the action lie against executors without special damage(z) . “Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record; otherwise the Court cannot intend it”(a) . The same rule appears to hold as concerning injuries to the person caused by unskilful medical treatment, negligence of carriers of passengers or their servants, and the like, although the duty to be performed was under a contract(b) . Positive authority, however, has not been found on the extent of this analogy. The language used by the Court of King’s Bench is at any rate not convincing, for although certainly a wrong is not property, the right to recover damages for a wrong is a chose in action; neither can the distinction between liquidated and unliquidated damages afford a test, for that would exclude causes of action on which executors have always been able to sue. We have considered in an earlier chapter the exceptional converse cases in which by statute or otherwise a cause of action for a tort which a person might have sued on in his lifetime survives to his personal representatives.

Where there was one cause of action with an option to sue in tort or in contract, the incidents of the remedy generally were determined once for all, under the old common law practice, by the plaintiff’s election of his form of action. But this has long ceased to be of practical importance in England, and, it is believed, in most jurisdictions.

[(a) ]Holt C. J., Cole v. Turner (1705) 6 Mod. 149, and Bigelow L. C. 218.

[(b) ]Blackst. Comm. iii. 120.

[(c) ]R. v. Cotesworth, 6 Mod. 172.

[(d) ]Pursell v. Horne (1838) 3 N. & P. 564 (throwing water at a person is assault; if the water falls on him as intended, it is battery also). But there is much older authority, see Reg. Brev. 108 b, a writ for throwing “quendam liquorem calidum” on the plaintiff: “casus erat huiusmodi praecedentis brevis: quaedam mulier proiecit super aliam mulierem ydromellum quod anglice dicitur worte quod erat nimis calidum.”

[(e) ]One might expect “believes or causes,” &c.; but this would be an extension of the law. No assault is committed by presenting a gun at a man who cannot see it, any more than by forming an intention to shoot at him.

[(f) ]Criminal Code (Indictable Offences) Bill, s. 203. Mr. Justice Stephen’s definition in his Digest (art. 241) is more elaborate; and the Indian Penal Code has an extremely minute definition of “using force to another” (s. 349). As Mr. Justice Stephen remarks, if legislators begin defining in this way it is hard to see what they can assume to be known.

[(g) ]Bacon Abr. “Assault and Battery,” A; Hawkins P. C. i. 110.

[(h) ]R. v. James (1844) 1 C. & K. 530, is apparently to the contrary. Tindal C. J. held that a man could not be convicted of an attempt to discharge a loaded fire-arm under a criminal statute, nor even of an assault, if the arm is (as by defective priming) not in a state capable of being discharged; but this opinion (also held by Lord Abinger, Blake v. Barnard, 9 C. & P. at p. 628) is against that of Parke B. in R. v. St. George (1840) 9 C. & P. 483, 493, which on this point would almost certainly be followed at this day. The case is overruled on another point, purely on the words of the statute, and not here material, in R. v. Duckworth, ’92, 2 Q. B. 83, 66 L. T. 302.

[(i) ]Stephens v. Myers, 4 C. & P. 349; Bigelow L. C. 217. A large proportion of the authorities on this subject are Nisi Prius cases (cp. however Read v. Coker (1853) 13 C. B. 850, 22 L. J. C. P. 201): see the sub-titles of Assault under Criminal Law and Trespass in Fisher’s Digest. Some of the dicta, as might be expected, are in conflict.

[(k) ]Tuberville v. Savage (1669) 1 Mod. 3.

[(l) ]Holt C. J., Cole v. Turner, 6 Mod. 149.

[(m) ]Steph. Dig. Cr. Law, art. 241, illustrations.

[(n) ]Coward v. Baddeley (1859) 4 H. & N. 478, 28 L. J. Ex. 260.

[(o) ]Innes v. Wylie (1843) 1 C. & K. 257. But it seems the other, if he is going where he has a right to go, is justified in pushing him aside, though not in striking or other violence outside the actual exercise of his right: see p. 160, above.

[(p) ]The Circuiteers, by John Leycester Adolphus (the supposed speaker is Sir Gregory Lewin), L. Q. R. i. 232; Meade’s and Belt’s ca., 1 Lewin C. C. 184: “no words or singing are equivalent to an assault,” per Holroyd J. Cp. Hawkins P. C. i. 110. That it was formerly held otherwise, see 27 Ass. 134, pl. 11, 17 Ed. IV. 3, pl. 2, 36 Hen. VI. 20 b, pl. 8.

[(q) ]Under the old system of pleading this was not a matter of special justification, but evidence under the general issue, an assault by consent being a contradiction in terms: Christopherson v. Bare (1848) 11 Q. B. 473, 17 L. J. Q. B. 109. But this has long ceased to be of any importance in England.

[(r) ]P. 147, above.

[(s) ]Hawkins, P. C. i. 484. The Roman law went even farther in encouraging contests “gloriae causa et virtutis,” D. 9. 2, ad. 1. Aquil. 7, § 4.

[(t) ]Cases collected in Fisher’s Dig. ed. Mews, 2081-2. Similarly where consent is given to an un-reasonably dangerous operation or treatment by one who relies on the prisoner’s skill, it does not excuse him from the guilt of manslaughter if death ensues: Commonwealth v. Pierce, 138 Mass. 165, 180.

[(u) ]Blackst. Comm. iii. 4.

[(v) ]Reece v. Taylor, 4 N. & M. 470.

[(w) ]See Stephen’s Digest of the Criminal Law, art. 200, and cp. Criminal Code Bill, ss. 55-57; and for full discussion Dicey, Law of the Constitution, 4th ed. appx. note iv. There are many modern American decisions, chiefly in the Southern and Western States. See Cooley on Torts, 165.

[(x) ]Reed v. Nutt (1890) 24 Q. B. D. 669, 59 L. J. Q. B. 311.

[(y) ]24 & 25 Vict. c. 100, ss. 42—45. Masper v. Brown (1876) 1 C. P. D. 97, decides that the Act is not confined to suits strictly for the same cause of action, but extends to bar actions by a husband or master for consequential damage: the words of the Act are “same cause,” but they are equivalent to “same assault” in the earlier Act, 16 & 17 Vict. c. 30, s. 1, repealed by 24 & 25 Vict. c. 95.

[(z) ]Blackst. Comm. iii. 127.

[(a) ]Warner v. Riddiford, 4 C. B. N. S. 180; even if he is disabled by sickness from moving at all: the assumption of control is the main thing: Grainger v. Hill (1838) 4 Bing. N. C. 212.

[(b) ]Bird v. Jones (1845) 7 Q. B. 742, 15 L. J. Q. B. 82, per Coleridge J.

[(c) ]Williams J., ib. To the same effect Patteson J.: “Imprisonment is a total restraint of liberty of person.” Lord Denman C. J. dissented.

[(d) ]Ch. IV. p. 97, above.

[(e) ]Stephen, Dig. Crim. Proc. c. 12, 1 Hist. Cr. Law 193: and see Hogg v. Ward (1858) 3 H. & N. 417, 27 L. J. Ex. 443.

[(f) ]This applies only to felony: “the law [i.e., common law] does not excuse constables for arresting persons on the reasonable belief that they have committed a misdemeanour:” see Griffin v. Coleman (1859) 4 H. & N. 265, 28 L. J. Ex. 134.

[(g) ]Stephen, 1 Hist. Cr. Law, 197, 199. As to the common law powers of constables and others to arrest for preservation of the peace, which seem not free from doubt, see Timothy v. Simpson (1835) 1 C. M. & R. 757, Bigelow L. C. 257, per Parke B.

[(h) ]Stephen, 1 Hist. Cr. Law, 200.

[(i) ]Griffin v. Coleman, note (f) last page.

[(j) ]Barker v. Braham (1773) 2 W. Bl. 866 (attorney suing out and procuring execution of void process).

[(k) ]Pp. 72, 73, above.

[(l) ]See Fitzjohn v. Mackinder (1881) Ex. Ch. 1861, 9 C. B. N. S. 505, 30 L. J. C. P. 257.

[(m) ]Willes J., Austin v. Dowling (1870) L. R. 5 C. P. at p. 540; West v. Smallwood (1838) 3 M. & W. 418; Bigelow L. C. 237; nor does an action for malicious prosecution lie where the judicial officer has held on a true statement of the facts that there is reasonable cause: Hope v. Evered (1886) 17 Q. B. D. 338, 55 L. J. M. C. 146; Lea v. Charrington (1889) 23 Q. B. Div. 45, 272, 58 L. J. Q. B. 461.

[(n) ]Grinham v. Willey (1859) 4 H. & N. 496, 28 L. J. Ex. 242.

[(o) ]Austin v. Dowling (1870) L. R. 5 C. P. 534, 39 L. J. C. P. 260. As to the protection of parties issuing an execution in regular course, though the judgment is afterwards set aside on other grounds, see Smith v. Sydney (1870) L. R. 5 Q. B. 203, 39 L. J. Q. B. 144. One case often cited, Flewster v. Royle (1808, Lord Ellenborough) 1 Camp. 187, is of doubtful authority: see Gosden v. Elphick (1849) 4 Ex. 445, 19 L. J. Ex. 9; and Grinham v. Willey, last note.

[(p) ]Lock v. Ashton (1848) 12 Q. B. 871, 18 L. J. Q. B. 76.

[(q) ]Hailes v. Marks (1861) 7 H. & N. 56, 30 L. J. Ex. 389.

[(r) ]Lister v. Perryman (1870) L. R. 4 H. L. 521, 535, per Lord Chelmsford. So per Lord Colonsay at p. 540.

[(s) ]Lord Campbell in Broughton v. Jackson (1852) 18 Q. B. 378, 383, 21 L. J. Q. B. 266; Lord Hatherley, Lord Westbury, and Lord Colonsay (all familiar with procedure in which there was no jury at all) in Lister v. Perryman, L. R. 4 H. L. 531, 538, 539.

[(t) ]Broughton v. Jackson (1852) 18 Q. B. 378, 21 L. J. Q. B. 266: the defendant must show “facts which would create a reasonable suspicion in the mind of a reasonable man,” per Lord Campbell C. J.

[(u) ]Bramwell B., Perryman v. Lister (1868) L. R. 3 Ex. at p. 202, approved by Lord Hatherley, S. C. nom. Lister v. Perryman, L. R. 4 H. L. at p. 533.

[(x) ]H. Stephen on Malicious Prosecution, ch. 7.

[(y) ]Christian’s note on Blackstone iii. 142 is still not amiss, though the amendments of this century in the law of evidence have removed some of the grievances mentioned.

[(z) ]F. N. B. 89 O, 90 H, 91 I; Blackst. Comm. iii. 139. The writ was de uxore abducta cum bonis viri sui, or an ordinary writ of trespass (F. N. B. 52 K); a case as late as the Restoration is mentioned in Bac. Abr. v. 328 (ed. 1832).

[(a) ]Y. B. 19 Hen. VI. 45, pl. 94.

[(b) ]Robert Marys’s case, 9 Co. Rep. 113a. It is held in Osborn v. Gillett (1873) L. R. 8 Ex. 88, 42 L. J. Ex. 53, that a master shall not have an action for a trespass whereby his servant is killed (diss. Bramwell B.). It is submitted that the decision is wrong, and Lord Bramwell’s dissenting judgment right. See pp. 57-59, above.

[(c) ]Blackst. Comm. iii. 140.

[(d) ]Coleridge J. in Lumley v. Gye (1853) 22 L. J. Q. B. at p. 478. Case would also lie, and the common form of declaration was for some time considered to be rather case than trespass: Macfadzen v. Olivant (1805) 6 East 387. See note (f) next page.

[(e) ]20 & 21 Vict. c. 85, ss. 33, 59.

[(f) ]23 Edw. III. (ad 1349): this statute, passed in consequence of the Black Death, marks a great crisis in the history of English agriculture and land tenure. As to its bearing on the matter in hand, see the dissenting judgment of Coleridge J. in Lumley v. Gye (1853) 2 E. & B. 216, 22 L. J. Q. B. 463, 480. The action was generally on the case, but it might be trespass: e. g., Tullidge v. Wade (1769) 3 Wils. 18, an action for seducing the plaintiff’s daughter, where the declaration was in trespass vi et armis. How this can be accounted for on principle I know not, short of regarding the servant as a quasi chattel: the difficulty was felt by Sir James Mansfield, Woodward v. Walton (1807) 2 B. & P. N. R. 476, 482. For a time it seemed the better opinion, however, that trespass was the only proper form: ibid., Ditcham v. Bond (1814) 2 M. & S. 436, see 14 R. R. 836 n. It was formally decided as late as 1839 (without giving any other reason than the constant practice) that trespass or case might be used at the pleader’s option: Chamberlain v. Hazelwood (1839) 5 M. & W. 515, 9 L. J. Ex. 87. The only conclusion which can or need at this day be drawn from such fluctuations is that the old system of pleading did not succeed in its professed object of maintaining clear logical distinctions between different causes of action.

[(g) ]Hartley v. Cummings (1847) 5 C. B. 247, 17 L. J. C. P. 84.

[(h) ]Blackst. Comm. iii. 139; Winsmore v. Greenbank (1745) Willes 577, Bigelow L. C. 328. It was objected that there was no precedent of any such action.

[(i) ]Evans v. Walton (1867) L. R. 2 C. P. 615, 36 L. J. C. P. 307, where it was unsuccessfully contended that the action for seducing a daughter with loss of service as the consequence, and for enticing away a servant, were distinct species; and that to sustain an action for “enticing away” alone, a binding contract of service must be proved.

[(k) ]Willes J., L. R. 2 C. P. 622.

[(l) ]Speight v. Oliviera (1819) 2 Stark. 493, cited with approval by Montague Smith J., L. R. 2 C. P. 624.

[(m) ]Harper v. Luffkin (1827) 7 B. & C. 387. This was long before courts of law did or could recognize any capacity of contracting in a married woman.

[(n) ]Manley v. Field (1859) 7 C. B. N. S. 96, 29 L. J. C. P. 79.

[(o) ]Dean v. Peel (1804) 5 East 45, 7 R. R. 653; even if by the master’s licence she gives occasional help in her parents’ work; Thompson v. Ross (1859) 5 H. & N. 16, 29 L. J. Ex. 1; Hedges v. Tagg (1872) L. R. 7 Ex. 283, 41 L. J. Ex. 169. In the United States it is generally held that actual service with a third person is no bar to the action, unless there is a binding contract which excludes the parents’ right of reclaiming the child’s services—i.e. that service either de facto or de jure will do: Martin v. Payne (Sup. Court N. Y. 1812), Bigelow L. C. 286, and notes.

[(p) ]Bramwell B. in Thompson v. Ross, last note.

[(q) ]Terry v. Hutchinson (1868) L. R. 3 Q. B. 599, 37 L. J. Q. B. 257.

[(r) ]Littledale J. cited with approval by Blackburn J., L. R. 3 Q. B. 602.

[(s) ]Rist v. Faux (1863) Ex. Ch. 4 B. & S. 409, 32 L. J. Q. B. 386.

[(t) ]Grinnell v. Wells (1844) 7 M. & G. 1033, 14 L. J. C. P. 19; Eager v. Grimwood (1847) 1 Ex. 61, 16 L. J. Ex. 236, where the declaration was framed in trespass, it would seem purposely on the chance of the court holding that the per quod servitium amisit could be dispensed with.

[(u) ]See Terry v. Hutchinson, note (q) last page.

[(x) ]Irwin v. Dearman (1809) 11 East 23, 10 R. R. 423.

[(y) ]Hall v. Hollander (1825) 4 B. & C. 660. But this case does not show that, if a jury chose to find that a very young child was capable of service, their verdict would be disturbed.

[(z) ]Note to Grinnell v. Wells, 7 M. & G. 1044.

[(a) ]Starkie’s note to Speight v. Oliviera (1819) 2 Stark. 496.

[(b) ]11 Hen. IV. fo. 1-2, pl. 2, per Huls J. (ad 1410).

[(c) ]22 Hen. VI. 31 (ad 1443).

[(d) ]L. R. 2 C. P. 621-2.

[(e) ]22 Hen. VI. 32 b, per Cur. (Newton C. J.; Fulthorpe, Ascue or Ayscoghe, Portington JJ.); F. N. B. 168 F.

[(f) ]If the tenancy were not at will, the departure would be a breach of contract; this introduces a new element of difficulty, never expressly faced by our courts before Lumley v. Gye, of which more elsewhere.

[(g) ]F. N. B. 87 N.; and see the form of the writ there. It seems therefore that “picketing,” so soon as it exceeds the bounds of persuasion and becomes physical intimidation, is a trespass at common law against the employer.

[(h) ]14 Edw. IV. 7, pl. 13, a writ “quare tenentes suos verberavit per quod a tenura sua recesserunt”; 9 Hen. VII. 7, pl. 4, action for menacing plaintiff’s tenants at will “de vita et mutilatione membrorum, ita quod recesserunt de tenura”; Rastell, Entries 661, 662, similar forms of declaration; one (pl. 9) is for menacing the king’s tenants, so that “negotia sua palam incedere non audebant”; Garret v. Taylor, Cro. Jac. 567, action on the case for threatening the plaintiff’s workmen and customers, “to mayhem and vex them with suits if they bought any stones”; 21 Hen. VI. 26, pl. 9, “manassavit vulneravit et verberavit”: note that in this action the “vulneravit” is not justifiable and therefore must be traversed, otherwise under a plea of son assault demesne; 22 Ass. 102, pl. 76, is for actual beating, aggravated by carrying away timber of the plaintiff’s (merimentum = materiamen, see Du Cange, s. v. materia; in Anglo-French meresme). In ad 1200 an action is recorded against one John de Mewic for deforcing the plaintiff of land which she had already recovered against him by judgment, “so that no one dare till that land because of him, nor could she deal with it in any way because of him”: Select Civil Pleas, Selden Soc. 1890, ed. Baildon, vol. 1, pl. 7. Cp. Reg. Brev. (1595) 104a, “quando tenentes non audent morari super tenuris suis,” and Tarleton v. McGawley (1794) 1 Peake 270, 3 R. R. 689, action for deterring negroes on the coast of Africa from trading with plaintiff’s ship.

[(i) ]Keeble v. Hickeringill (1705) 11 East 574n; 11 R. R. 272n. Cp. Select Civil Pleas, vol. I, pl. 106.

[(k) ]11 East 576; supra, p. 135.

[(l) ]Mogul Steamship Co. v. McGregor, ’92, A. C. 25.

[(m) ]2 E. & B. 216, 22 L. J. Q. B. 463 (1853).

[(a) ]Such as the definition of blasphemous libel, and the grounds on which it is punishable.

[(aa) ]Quære, whether defamatory matter recorded on a phonograph would be a libel or only a potential slander.

[(b) ]Scandalum magnatum was, and in strictness of law still might be, an exception to this: Blake Odgers, Digest of the Law of Libel and Slander, 134—137. Mr. Odgers has not found any case after 1710. There is a curious 14th cent. case of scandalum magnatum in 30 Ass. 177, pl. 19, where the defendant only made matters worse by alleging that the plaintiff was excommunicated by the Pope.

[(c) ]A Digest of the Law of Libel and Slander, &c. By W. Blake Odgers, London, 2nd ed. 1887.

[(d) ]See Blake Odgers, pp. 2—4, and 6 Amer. Law Rev. 593. It seems odd that the law should presume damage to a man from printed matter in a newspaper which, it may be, none of his acquaintances are likely to read, and refuse to presume it from the direct oral communication of the same matter to the persons most likely to act upon it. Mr. Joseph R. Fisher, in Law Quart. Rev. x. 158, traces the distinction to “the adaptation by the Star Chamber of the later Roman law of libellus famosus.”

[(e) ]The old abridgments, e.g. Rolle, sub tit. Action sur Case, Pur Parolls, abound in examples, many of them sufficiently grotesque. A select group of cases is reported by Coke, 4 Rep. 12 b—20 b.

[(f) ]P. 28, above.

[(g) ]Vicars v. Wilcocks (1806) 8 East 1, 9 R. R. 361.

[(h) ]Lynch v. Knight (1861) 9 H. L. C. 577. See notes to Vicars v. Wilcocks, in 2 Sm. L. C.

[(i) ]Maule J. ex relat. Bramwell L. J., 7 Q. B. D. 437.

[(j) ]Parkins v. Scott (1862) 1 H. & C. 153, 31 L. J. Ex. 331 (wife repeated to her husband gross language used to herself, wherefore the husband was so much hurt that he left her).

[(k) ]Blake Odgers 331. Riding v. Smith (1876) 1 Ex. D. 91, 45 L. J. Ex. 281, must be taken not to interfere with this distinction, see per C. A. in Ratcliffe v. Evans, ’92, 2 Q. B. 524, 534, 61 L. J. Q. B. 535.

[(l) ]Roberts v. Roberts (1864) 5 B. & S. 384, 33 L. J. Q. B. 249.

[(m) ]Lynch v. Knight, 9 H. L. C. 577.

[(n) ]Davies v. Solomon (1871) L. R. 7 Q. B. 112, 41 L. J. Q. B. 10.

[(o) ]Chamberlain v. Boyd (1883) 11 Q. B. Div. 407; per Bowen L. J. at p. 416, 52 L. J. Q. B. 277. The damage was also held too remote.

[(p) ]Allsop v. Allsop (1860) 5 H. & N. 534, 29 L. J. Ex. 315.

[(q) ]This is the true distinction: it matters not whether the offence be indictable or punishable by a court of summary jurisdiction: Webb v. Beavan (1883) 11 Q. B. D. 609, 52 L. J. Q. B. 544. In the United States the received opinion is that such words are actionable only “in case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment:” Brooker v. Coffin (1809) 5 Johns. 188, Bigelow L. C. 77, 80; later authorities ap. Cooley on Torts, 197.

[(r) ]Jackson v. Adams (1835) 2 Bing. N. C. 402. The words were “who stole the parish bell-ropes, you scamping rascal?” If spoken while the plaintiff held the office, they would probably have been actionable, as tending to his prejudice therein.

[(s) ]Mayor of Manchester v. Williams, ’91, 1 Q. B. 94, 60 L. J. Q. B. 23. As to defamation in the way of business, see p. 227, below.

[(t) ]The technical reason was that charges of incontinence, heresy, &c., were “spiritual defamation,” and the matter determinable in the Ecclesiastical Court acting pro salute animae. See Davis v. Gardiner, 4 Co. Rep. 16 b; Palmer v. Thorpe, ib. 20 a.

[(u) ]P. 197, above.

[(v) ]Leyman v. Latimer (1878) 3 Ex. Div. 352, 47 L. J. Ex. 470. There are some curious analogies to these refinements in the Italian sixteenth-century books on the point of honour, such as Alciato’s.

[(x) ]Leprosy and, it is said, the plague, were in the same category. Small-pox is not. See Blake Odgers 64.

[(y) ]Carslake v. Mapledoram (1788) 2 T. R. 473, Bigelow L. C. 84, per Ashhurst J.

[(z) ]Bloodworth v. Gray (1844) 7 M. & Gr. 334. The whole of the judgment runs thus: “This case falls within the principle of the old authorities.”

[(a) ]Miller v. David (1874) L. R. 9 C. P. 118, 43 L. J. C. P. 84.

[(b) ]Doyley v. Roberts (1837) 3 Bing. N. C. 835, and authorities there cited.

[(c) ]Re Weare, ’93, 2 Q. B. 439.

[(d) ]Alexander v. Jenkins, ’92, 1 Q. B. 797, 61 L. J. Q. B. 634, C. A.

[(e) ]L. R. 2 Ex. at p. 330.

[(f) ]Foulger v. Newcomb (1867) L. R. 2 Ex. 327, 36 L. J. Ex. 169.

[(g) ]Blake Odgers 80; Shepheard v. Whitaker (1875) L. R. 10 C. P. 502.

[(h) ]South Hetton Coal Co. v. N. E. News Association, ’94, 1 Q. B. 133, 9 R. Apr. 170 (this was a printed libel, but the principle seems equally applicable to spoken words).

[(i) ]Per C. A., Ratcliffe v. Evans, ’92, 2 Q. B. 524, 527, 61 L. J. Q. B. 535.

[(k) ]Ratcliffe v. Evans, last note; cp. Hartley v. Herring (1799) 8 T. R. 130, 4 R. R. 614; Riding v. Smith (1876) 1 Ex. D. 91, 45 L. J. Ex. 281, must be justified, if at all, as a case of this class: ’92, 2 Q. B. at p. 534.

[(l) ]See Bigelow L. C. 117.

[(m) ]Bayley J. in Bromage v. Prosser (1825) 4 B. & C. at p. 253, Bigelow L. C. 137: “Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse:” so too Littledale J. in McPherson v. Daniels (1829) 10 B. & C. 272.

[(n) ]Lord Blackburn in Capital and Counties Bank v. Henty (1882) 7 App. Ca. 787, 52 L. J. Q. B. 232.

[(o) ]See Williamson v. Freer (1874) L. R. 9 C. P. 393, 43 L. J. C. P. 161.

[(p) ]Printing is for this reason prima facie a publication, Baldwin v. Elphinston, 2 W. Bl. 1037. There are obvious exceptions, as if the text to be printed is Arabic or Chinese, or the message in cipher.

[(q) ]Pullman v. Hill & Co., ’91, 1 Q. B. 524, 60 L. J. Q. B. 299, C. A. But if the occasion of the letter is privileged as regards the principal, the publication to the clerk in the usual course of office business is privileged too. Boxsius v. Goblet Frères, ’94, 1 Q. B. 842, 9 R. Mar. 211, C. A.

[(r) ]Duke of Brunswick v. Harmer (1849) 14 Q. B. 185, 19 L. J. Q. B. 20.

[(s) ]Blake Odgers 154.

[(t) ]Emmens v. Pottle (1885) 16 Q. B. Div. 354, per Bowen L. J. at p. 358, 55 L. J. Q. B. 51. But it seems the vendor would be liable if he had reason to know that the publication contained, or was likely to contain, libellous matter.

[(u) ]Tompson v. Dashwood (1883) 11 Q. B. D. 43, 52 L. J. Q. B. 425, was overruled by Hebditch v. MacIlwaine, ’94, 2 Q. B. 54, 9 R. July, 204, C. A. See pp. 252-3, below.

[(x) ]Wenman v. Ash (1853) 13 C. B. 836, 22 L. J. C. P. 190, per Maule J. But communication by the defendant to his wife is not a publication: Wennhak v. Morgan (1888) 20 Q. B. D. 635, 57 L. J. Q. B. 241.

[(y) ]Parkes v. Prescott (1869) L. R. 4 Ex. 169, 38 L. J. Ex. 105, Ex. Ch. Whether the particular publication is within the authority is a question of fact. All the Court decide is that verbal dictation or approval by the principal need not be shown.

[(z) ]Gibson v. Evans (1889) 23 Q. B. D. 384, 58 L. J. Q. B. 612.

[(a) ]Capital and Counties Bank v. Henty (1882) 7 App. Ca. 741, 52 L. J. Q. B. 232, where the law is elaborately discussed. For a shorter example of words held, upon consideration, not to be capable of such a meaning, see Mulligan v. Cole (1875) L. R. 10 Q. B. 549, 44 L. J. Q. B. 153; for one on the other side of the line, Hart v. Wall (1877) 2 C. P. D. 146, 46 L. J. C. P. 227.

[(b) ]See 7 App. Ca. 748 (Lord Selborne).

[(c) ]Blake Odgers 109—112.

[(d) ]7 App. Ca. 768, 782, 790, cf. p. 787.

[(e) ]Lord Blackburn, 7 App. Ca. 776.

[(f) ]Lord Selborne, 7 App. Ca. 744; Lord Blackburn, ib. 778; Lord Bramwell, ib. 792, “I think that the defamer is he who, of many inferences, chooses a defamatory one.”

[(ff) ]Australian Newspaper Co. v. Bennett, 6 R. Sept. 36, P. C.

[(g) ]Purcell v. Sowler (1877) 2 C. P. Div. 215, 46 L. J. C. P. 308.

[(h) ]Watkin v. Hall (1868) L. R. 3 Q. B. 396, 37 L. J. Q. B. 125.

[(i) ]Littledale J., McPherson v. Daniels (1829) 10 B. & C. 263, 273, adopted by Blackburn J., L. R. 3 Q. B. 400. The latter part of the 4th Resolution reported in the Earl of Northampton’s case, 12 Co. Rep. 134, is not law. See per Parke J., 10 B. & C. at p. 275.

[(k) ]See Parkins v. Scott (1862) 1 H. & C. 153, 31 L. J. Ex. 331, p. 223, above.

[(l) ]See per Bowen L. J., Merivale v. Carson (1887) 20 Q. B. Div. at p. 282.

[(m) ]Lord Esher M. R., 20 Q. B. Div. at p. 280.

[(n) ]3 B. & S. 769, 32 L. J. Q. B. 185 (1863).

[(o) ](1887) 20 Q. B. Div. 275, 58 L. T. 331. This must be taken to overrule whatever was said to the contrary in Henwood v. Harrison (1872) L. R. 7 C. P. 606, 626, 41 L. J. C. P. 206.

[(p) ]Bowen L. J., 20 Q. B. Div. at p. 283.

[(q) ]Blackburn J., Campbell v. Spottiswoode, 32 L. J. Q. B. at p. 202; cp. Bowen L. J., 20 Q. B. Div. at p. 284.

[(r) ]See however Wason v. Walter (1868) L. R. 4 Q. B. at p. 96, 38 L. J. Q. B. 34, and Stevens v. Sampson (1879) 5 Ex. Div. 53, 49 L. J. Q. B. 120; and per Lord Esher M. R., 20 Q. B. Div. at p. 281.

[(s) ]Lord Esher M. R., Merivale v. Carson, 20 Q. B. Div. 275, 281.

[(t) ]On this ground the actual decision in Henwood v. Harrison, note (o), p. 236, may have been right; see however the dissenting judgment of Grove J.

[(u) ]Including the conduct at a public meeting of persons who attend it as private citizens: Davis v. Duncan (1874) L. R. 9 C. P. 396, 43 L. J. C. P. 185. A clergyman is a public officer, or at any rate the conduct of public worship and whatever is incidental thereto is matter of public interest: Kelly v. Tinling (1865) L. R. 1 Q. B. 699, 35 L. J. Q. B. 940, cp. Kelly v. Sherlock (1866) L. R. 1 Q. B. at p. 689, 35 L. J. Q. B. 209.

[(x) ]Purcell v. Sowler, 2 C. P. Div. 215, 46 L. J. C. P. 308.

[(y) ]Merivale v. Carson (1887) 20 Q. B. Div. 275, 58 L. T. 331; Jenner v. A’Beckett (1871) L. R. 7 Q. B. 11, 41 L. J. Q. B. 14. Qu. whether the dissenting judgment of Lush J. was not right.

[(z) ]Davis v. Shepstone (1886) J. C. 11 App. Ca. 187, 55 L. J. P. C. 51.

[(a) ]Merivale v. Carson (1887) 20 Q. B. Div. 275, 58 L. T. 331.

[(b) ]Compare the similar doctrine in trespass, which has peculiar consequences. But of this in its place.

[(c) ]Littledale J., 10 B. & C. at p. 272.

[(d) ]Fleming v. Dollar (1889) 23 Q. B. D. 388, 58 L. J. Q. B. 548.

[(e) ]Alexander v. North Eastern R. Co. (1865) 6 B. & S. 340, 34 L. J. Q. B. 152.

[(f) ]Leyman v. Latimer (1878) 3 Ex. Div. 352, 47 L. J. Ex. 470.

[(g) ]Helsham v. Blackwood (1851) 11 C. B. 128, 20 L. J. C. P. 187, a very curious case.

[(h) ]St. 4 Hen. VIII. c. 8 (Pro Ricardo Strode); Bill of Rights, 1 Wm. & M. sess. 2, c. 2, “That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.”

[(i) ]Scott v. Stansfield (1868) L. R. 3 Ex. 220, 37 L. J. Ex. 155; the protection extends to judicial acts, see the chapter of General Exceptions above, pp. 104—106, and further illustrations ap. Blake Odgers 188.

[(k) ]Munster v. Lamb (1883) 11 Q. B. Div. 588, where authorities are collected.

[(l) ]Seaman v. Netherclift (1876) 2 C. P. Div. 53, 46 L. J. C. P. 128. But there is no privilege for those who procure other persons to give false and defamatory evidence: Rice v. Corlidge (1876) 121 Mass. 393, Ames, Sel. Ca. 616. For American views on the main question see Ames, op. cit. 438.

[(m) ]Dawkins v. Lord Rokeby (1873-5) Ex. Ch. and H. L., L. R. 8 Q. B. 255, 7 H. L. 744, 45 L. J. Q. B. 8, see opinion of judges 7 H. L. at p. 752; Dawkins v. Prince Edward of Saxe Weimar (1876) 1 Q. B. D. 499, 45 L. J. Q. B. 567.

[(n) ]Goffin v. Donnelly (1881) 6 Q. B. D. 307, 50 L. J. Q. B. 303. A licensing meeting of a County Council is not a Court for this purpose: Royal Aquarium Society v. Parkinson, ’92, 1 Q. B. 431, 61 L. J. Q. B. 409, C. A.

[(o) ]Dawkins v. Lord Paulet (1869) L. R. 5 Q. B. 94, 39 L. J. Q. B. 53, see the dissenting judgment of Cockburn C. J., and the notes of Sir James Stephen, Dig. Cr. L. art. 276, and Mr. Blake Odgers, op. cit. 195. The reference of the Judicial Committee to the case in Hart v. Gumpach (1872) L. R. 4 P. C. 439, 464, 42 L. J. P. C. 25, is quite neutral. They declined to presume that such an “absolute privilege” existed by the law and customs of China as to official reports to the Chinese Government.

[(p) ]The burden of proof is not on the defendant to show his good faith: Jenoure v. Delmege, ’91, A. C. 73, 60 L. J. P. C. 11, J. C. This, however, is or ought to be elementary.

[(q) ]See per Lord Blackburn, 7 App. Ca. 787.

[(r) ]See per Blackburn J. in Davies v. Snead (1870) L. R. 5 Q. B. at p. 611.

[(s) ]Cases of this kind have been very troublesome. See Blake Odgers 217-21.

[(t) ]See Coxhead v. Richards (1846) 2 C. B. 569, 15 L. J. C. P. 278, where the Court was equally divided, rather as to the reasonably apparent urgency of the particular occasion than on any definable principle.

[(u) ]Somerville v. Hawkins (1850) 10 C. B. 583, 20 L. J. C. P. 133.

[(x) ]Spill v. Maule (1869) Ex. Ch. L. R. 4 Ex. 232, 38 L. J. Ex. 138.

[(y) ]Baker v. Carrick, ’94, 1 Q. B. 838, 9 R. Apr. 212, C. A.

[(z) ]Laughton v. Bishop of Sodor and Man (1872) L. R. 4 P. C. 495, 42 L. J. P. C. 11.

[(a) ]Harrison v. Bush (1855) 5 E. & B. 344, 25 L. J. Q. B. 25. Mere belief that the person addressed is officially competent will not do: Hebditch v. MacIlwaine, ’94, 2 Q. B. 54, 9 R. July, 204, C. A. In Harrison v. Bush, however it was held that it was not, in fact, irregular to address a memorial complaining of the conduct of a justice of the peace to a Secretary of State (see the judgment of the Court as to the incidents of that office), though it would be more usual to address such a memorial to the Lord Chancellor. Complaints made to the Privy Council against an officer whom the Council is by statute empowered to remove are in this category; the absolute privilege of judicial proceedings cannot be claimed for them, though the power in question may be exerciseable only on inquiry: Proctor v. Webster (1885) 16 Q. B. D. 112, 55 L. J. Q. B. 150.

[(b) ]Clark v. Molyneux (1877) 3 Q. B. Div. 237, 47 L. J. Q. B. 230.

[(c) ]See Davis v. Shepstone (1886) J. C. 11 App. Ca. 187, 55 L. J. P. C. 51.

[(d) ]See Blake Odgers, op. cit. 185-6. The words of the Act, in their literal construction, appear to throw the burden of proving good faith on the publisher, which probably was not intended.

[(e) ]Per Cur. in Wason v. Walter, L. R. 4 Q. B. at p. 87.

[(f) ]Wason v. Walter, L. R. 4 Q. B. 73, 38 L. J. Q. B. 34. And editorial comments on a debate published by the same newspaper which publishes the report are entitled to the benefit of the general rule as to fair comment on public affairs: ib. Cp. the German Federal Constitution, arts. 22, 30.

[(g) ]Allbutt v. General Council of Medical Education (1889) 23 Q. B. Div. 400, 58 L. J. Q. B. 606.

[(h) ]Kimber v. Press Association, ’93, 1 Q. B. 65, 62 L. J. Q. B. 152, 4 R. 95, C. A.

[(i) ]Usill v. Hales (1878) 3 C. P. D. 319, 47 L. J. C. P. 323, where the proceeding reported was an application to a police magistrate, who, after hearing the facts stated, declined to act on the ground of want of jurisdiction: Lewis v. Levy (1858) E. B. & E. 537, 27 L. J. Q. B. 282.

[(k) ]Macdougall v. Knight (1889) 14 App. Ca. 194, 58 L. J. Q. B. 537. But in Macdougall v. Knight (1890) 25 Q. B. Div. 1, 59 L. J. Q. B. 517, the C. A. adhered to their previous view (17 Q. B. Div. 636, action between same parties) that a correct report of a judgment is privileged.

[(l) ]Hayward & Co. v. Hayward & Son (1886) 34 Ch. D. 198, 56 L. J. Ch. 287.

[(m) ]Williams v. Smith (1888) 22 Q. B. D. 134, 58 L. J. Q. B. 21.

[(n) ]Searles v. Scarlett, ’92, 2 Q. B. 56, 61 L. J. Q. B. 573, C. A., where the publication was expressly guarded: qu. as to Williams v. Smith, see ’92, 2 Q. B. at pp. 62, 63, 64.

[(o) ]51 & 52 Vict. c. 64, s. 3. The earlier cases are still material to show what is a fair and accurate report.

[(p) ]Steele v. Brannan (1872) L. R. 7 C. P. 261 (a criminal case); 51 & 52 Vict. c. 64, s. 3.

[(q) ]Kimber v. Press Association, ’93, 1 Q. B. 65, 62 L. J. Q. B. 152, 4 R. 95, C. A.

[(r) ]Stevens v. Sampson (1879) 5 Ex. Div. 53, 49 L. J. Q. B. 120.

[(s) ]51 & 52 Vict. c. 64, s. 4. The ill-drawn enactment of 1881 for the same purpose, 44 & 45 Vict. c. 61, s. 2, is repealed by sect. 2 of this Act. As to boards of guardians, see Pittard v. Oliver, ’91, 1 Q. B. 474, 60 L. J. Q. B. 219, C. A.

[(t) ]51 & 52 Vict. c. 64, s. 4. In a civil action on whom is the burden of proof as to this? See Blake Odgers 381-3, on the repealed section of 1881, where however this qualification was by way of condition and not by way of proviso.

[(u) ]Williamson v. Freer (1874) L. R. 9 C. P. 393, 43 L. J. C. P. 161.

[(x) ]Pittard v. Oliver, ’91, 1 Q. B. 474, 60 L. J. Q. B. 219, C. A.

[(y) ]Hebditch v. MacIlwaine, ’94, 2 Q. B. 54, 9 R. July, 204, C. A.

[(z) ]A statement made recklessly under the influence of e.g. gross prejudice against the plaintiff’s occupation in general, though without any personal hostility towards him, may be malicious: Royal Aquarium Society v. Parkinson, ’92, 1 Q. B. 431, 61 L. J. Q. B. 409, C. A.

[(a) ]Jenoure v. Delmege, ’91, A. C. 73, 60 L. J. P. C. 11 (J. C.).

[(b) ]Clark v. Molyneuz (1877) 3 Q. B. Div. 237, 47 L. J. Q. B. 230, per Bramwell L. J. at p. 244; per Brett L. J. at pp. 247-8; per Cotton L. J. at p. 249.

[(c) ]Laughton v. Bishop of Sodor and Man (1872) L. R. 4 P. C. 495, 42 L. J. P. C. 11, and authorities there cited; Spill v. Maule (1869) Ex. Ch. L. R. 4 Ex. 232, 38 L. J. Ex. 138.

[(d) ]Praed v. Graham (1889) 24 Q. B. Div. 53, 55, 59 L. J. Q. B. 230.

[(e) ]The Rules of Court of 1875 had the effect of enlarging and so far superseding the latter provision; but see now Order XXII. r. 1, and “The Annual Practice” thereon. See also 51 & 52 Vict. c. 64, s. 6.

[(f) ]Parnell v. Walter (1890) 24 Q. B. D. 441, 59 L. J. Q. B. 125.

[(g) ]Wood v. Durham (1888) 21 Q. B. D. 501, 57 L. J. Q. B. 547.

[(h) ]Bonnard v. Perryman, ’91, 2 Ch. 269, 60 L. J. Ch. 617, C. A. p. 179, above; for a later example of injunction granted, see Collard v. Marshall, ’92, 1 Ch. 571, 61 L. J. Ch. 268.

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

[(a) ]F. N. B. 95 E. sqq.

[(b) ]See per Lord Chelmsford, L. R. 6 H. L. at p. 390.

[(c) ]See pp. 179, 180, above.

[(d) ]Lord Blackburn, Brownlie v. Campbell (1880) 5 App. Ca. (Sc.) at p. 953.

[(e) ]See per Lord Bramwell, Weir v. Bell, 3 Ex. D. at p. 243; Derry v. Peek, 14 App. Ca. at p. 346.

[(f) ]Pp. 78, 79, above. The difficulties may be said to have culminated in Udell v. Atherton (1861) 7 H. & N. 172, 30 L. J. Ex. 337, where the Court was equally divided.

[(g) ]Lord Herschell, Derry v. Peek (1889) 14 App. Ca. at p. 371.

[(h) ]See Polhill v. Walter (1832) 3 B. & Ad. 114, 123.

[(i) ]Cp. for the general rules Lord Hatherley (Page Wood V.-C.), Barry v. Croskey (1861) 2 J. & H. at pp. 22-3, approved by Lord Cairns in Peek v. Gurney, L. R. 6 H. L. at p. 413; Bowen L. J., Edgington v. Fitzmaurice (1885) 29 Ch. Div. at pp. 481-2; and Lindley L. J., Smith v. Chadwick (1882) 20 Ch. Div. at p. 75.

[(j) ]Derry v. Peek (1889) 14 App. Ca. 337, 374, 58 L. J. Ch. 864.

[(k) ]Lord Blackburn, Smith v. Chadwick (1884) 9 App. Ca. at p. 196.

[(l) ]Compare Pasley v. Freeman (1789), 3 T. R. 51, 1 R. R. 634, with Haycraft v. Creasy (1801) 2 East 92, 6 R. R. 380, where Lord Kenyon’s dissenting judgment may be more acceptable to the latter-day reader than those of the majority.

[(m) ]Bowen L. J., 29 Ch. Div. 483.

[(n) ]Clough v. L. and N. W. R. Co. (1871) Ex. Ch. L. R. 7 Ex. 26, 41 L. J. Ex. 17; cp. per Mellish L. J., Ex parte Whittaker (1875) 10 Ch. at p. 449. Whether in such case an action of deceit would lie is a merely speculative question, as if rescission is impracticable, and if the fraudulent buyer is worth suing, the obviously better course is to sue on the contract for the price. See however Williamson v. Allison (1802) 2 East 446.

[(n) ]Edgington v. Fitzmaurice (1884) 29 Ch. Div. 459, 55 L. J. Ch. 650.

[(o) ]It is submitted that the contrary opinion given in Vernon v. Keys (1810) Ex. Ch. 4 Taunt. 488, 11 R. R. 499, can no longer be considered law: see 11 R. R. Preface, vi. and Mr. Campbell’s note at p. 505.

[(p) ]West London Commercial Bank v. Kitson (1884) 13 Q. B. Div. 360, per Bowen L.J. at p. 363, 53 L. J. Q. B. 345. Cp. Firbank’s Executors v. Humphreys (1886) 18 Q. B. Div. 54, 56 L. J. Q. B. 57 (directors’ assertion of subsisting authority to issue debentures).

[(q) ]This appears to be the real ground of Rashdall v. Ford (1866) 2 Eq. 750, 35 L. J. Ch. 769.

[(r) ]“There must, in my opinion, be some active misstatement of fact, or at all events such a partial and fragmentary statement of fact as that the withholding of that which is not stated makes that which is stated absolutely false:” Lord Cairns, L. R. 6 H. L. 403.

[(s) ]Stewart v. Wyoming Ranche Co. (1888) 128 U. S. 383, 388.

[(t) ]Collins v. Evans (1844) Ex. Ch. 5 Q. B. 820, 13 L. J. Q. B. 180. Good and probable reason as well as good faith was pleaded and proved.

[(u) ]Taylor v. Ashton (1843) 11 M. & W. 401, 12 L. J. Ex. 363, but the actual decision is not consistent with the doctrine of the modern cases on the duty of directors of companies. See per Lord Herschell, 14 App. Ca. at p. 375.

[(x) ]Western Bank of Scotland v. Addie (1867) L. R. 1 Sc. at p. 162.

[(y) ]Ib. at p. 168.

[(z) ]Derry v. Peek (1889) 14 App. Ca. 337, 58 L. J. Ch. 864.

[(a) ]Peek v. Derry (1887) 37 Ch. Div. 541, 57 L. J. Ch. 347.

[(b) ]Lord Herschell, 14 App. Ca. at p. 375.

[(c) ]Acc. Glasier v. Rolls (1889) 42 Ch. Div. 436, 58 L. J. Ch. 820; Low v. Bouverie, ’91, 3 Ch. 82, 60 L. J. Ch. 594, C. A.

[(d) ]Le Lievre v. Gould, ’93, 1 Q. B. 491, 62 L. J. Q. B. 353, 4 R. 274, C. A. (untrue certificate negligently given by a builder who owed no special duty to the plaintiff).

[(e) ]L. Q. R. v. 410; for a different view, see Sir William Anson, ib. vi. 72.

[(f) ]Cooley on Torts, 501. The tendency appears as early as 1842, Stone v. Denny, 4 Met. (Mass.) 151, 158.

[(g) ]Chatham Furnace Co. v. Moffatt (1888) 147 Mass. 403.

[(h) ]Lehigh Zinc and Iron Co. v. Bamford (1893) 150 U. S. 665, 673.

[(i) ]’93, 1 Q. B. at p. 498, per Lord Esher.

[(k) ]See judgments of Lindley and Bowen L.JJ., in Angus v. Clifford, ’91, 2 Ch. 449.

[(l) ]Warlow v. Harrison (1859) 1 E. & E. 309, 29 L. J. Q. B. 14.

[(m) ]Williamson v. Allison (1802) 2 East 446, 451. We need not remind the learned reader that the action of assumpsit itself was originally an action on the case for deceit in breaking a promise to the promisee’s damage: J. B. Ames in Harvard Law Rev. ii. 1, 53.

[(n) ]Sir W. Anson, L. Q. R. vi. 74.

[(o) ]Reynell v. Sprye (1852) 1 D. M. G. 660, 709, Lord Cranworth: cp. Jessel M.R., Redgrave v. Hurd (1881) 20 Ch. Div. 12, 13, 51 L. J. Ch. 113.

[(p) ]Compare the doctrine of continuous taking in trespass de bonis asportatis, which is carried out to graver consequences in the criminal law. Jessel M. R. assumed the common law rule to be in some way narrower than that of equity (20 Ch. Div. 13), but this was an extra-judicial dictum; and see per Bowen L.J., 34 Ch. Div. at p. 594, declining to accept it.

[(q) ]Traill v. Baring (1864) 4 D. J. S. 318; the difficulty of making out how there was any representation of fact in that case as distinguished from a promise or condition of a contract is not material to the present purpose.

[(r) ]Maule J., Evans v. Edmonds (1853) 13 C. B. 777, 786, 22 L. J. C. P. 211.

[(s) ]Lord Cairns, Reese River Silver Mining Co. v. Smith (1869) L. R. 4 H. L. 64, 79, 39 L. J. Ch. 849. See per Sir J. Hannen in Peek v. Derry, 37 Ch. Div. at p. 581. Even Lord Bramwell allows Lord Cairns’s dictum (14 App. Ca. at p. 351).

[(t) ]Taylor v. Ashton (1843) 11 M. & W. 401, 12 L. J. Ex. 363; Edgington v. Fitzmaurice (1885) 29 Ch. Div. 459, 479, 481, 55 L. J. Ch. 650; cp. Smith v. Chadwick (1884) 9 App. Ca. at p. 190, per Lord Selborne.

[(u) ]Lord Herschell, Derry v. Peek, 14 App. Ca. at p. 371.

[(x) ]14 App. Ca. 337, 58 L. J. Ch. 864.

[(y) ]Angus v. Clifford, ’91, 2 Ch. 449, 60 L. J. Ch. 443, C. A., Le Lievre v. Gould, ’93, 1 Q. B. 491, 62 L. J. Q. B. 353, 4 R. 274, C. A.

[(z) ]Low v. Bouverie, ’91, 3 Ch. 82, 60 L. J. Ch. 594, C. A., see per Bowen L. J. ’91, 3 Ch. at p. 105.

[(a) ]Burrowes v. Lock (1805) 10 Ves. 470, 8 R. R. 33, 856, see per Lindley L. J., ’91, 3 Ch. at p. 101.

[(b) ]Slim v. Croucher (1860) 1 D. F. J. 518; Low v. Bouverie, above, per Lindley L. J. ’91, 3 Ch. at p. 102.

[(c) ]53 & 54 Vict. c. 64. See thereon the Supplement to Lindley on Companies, published in 1891.

[(d) ]Op. cit. 2.

[(e) ]Langridge v. Levy (1837) 2 M. & W. 519: affirmed (very briefly) in Ex. Ch. 4 M. & W. 338.

[(f) ]Polhill v. Walter (1832) 3 B. & Ad. 114. The more recent doctrine of implied warranty was then unknown.

[(g) ]So held unanimously in Denton v. G. N. R. Co. (1856) 5 E. & B. 860, 25 L. J. Q. B. 129. Lord Campbell C. J., and Wightman J., held (dubit. Crompton J.) that there was also a cause of action in contract. The difficulty often felt about maintaining an action for deceit against a corporation does not seem to have occurred to any member of the Court. It is of course open to argument that as to the cause of action in tort this case is overruled by Derry v. Peek, 14 App. Ca. 337, 58 L. J. Ch. 864; and now Low v. Bouverie, ’91, 3 Ch. 82, 60 L. J. Ch. 594, seems to point in the same direction. A man who puts forth by inadvertence a statement contrary to facts which he knows is hardly fraudulent in the sense of those decisions. It would be fraud if he persisted in the statement after having his attention called to it.

[(h) ]Peek v. Gurney (1873) L. R. 6 H. L. 377, 400, 411, 43 L. J. Ch. 19.

[(i) ]Lord Cairns, L. R. 6 H. L. at p. 409. Cp. per Lord Blackburn, Smith v. Chadwick, 9 App. Ca. at p. 201; Lord Herschell, Derry v. Peek, 14 App. Ca. at pp. 365, 371.

[(k) ]Horsfall v. Thomas (1862) 1 H. & C. 90, 31 L. J. Ex. 322, a case of contract, so that a fortiori an action for deceit would not lie; dissented from by Cockburn C. J., L. R. 6 Q. B. at p. 605. The case was a peculiar one, but could not have been otherwise decided.

[(l) ]Dobell v. Stevens (1825) 3 B. & C. 623.

[(m) ]Dyer v. Hargrave (1805) 10 Ves. at p. 510, 8 R. R. 39 (cross suits for specific performance and compensation).

[(n) ]Redgrave v. Hurd (1881) 20 Ch. Div. 1, 51 L. J. Ch. 113 (action for specific performance, counterclaim for rescission and damages).

[(o) ]Central R. Co. of Venezuela v. Kisch (1867) L. R. 2 H. L. 99, 120, 36 L. J. Ch. 849, per Lord Chelmsford. A case of this kind alone would not prove the rule as a general one, promoters of a company being under a special duty of full disclosure.

[(p) ]See especially per Jessel M. R., 20 Ch. Div. 21.

[(q) ]See per Lord Blackburn, Smith v. Chadwick, 9 App. Ca. at p. 196.

[(r) ]Smith v. Chadwick (1884) 9 App. Ca. 187, 53 L. J. Ch. 873, especially Lord Blackburn’s opinion.

[(s) ]In the case last cited (1881-2) (Fry J., and C. A. 20 Ch. Div. 27), Fry J. and Lord Bramwell decidedly adopted one construction of a particular statement; Lindley L. J. the same, though less decidedly, and Cotton L. J. another, while Jessel M. R., Lord Selborne, Lord Blackburn, and Lord Watson thought it ambiguous.

[(t) ]See the dissenting judgment of Grose J. in Pasley v. Freeman (1789) 3 T. R. 51, 1 R. R. 634, 636, and 2 Sm. L. C.

[(u) ]By Lord Eldon in Evans v. Bicknell (1801) 6 Ves. 174, 182, 186, 5 R. R. 245, 251, 255.

[(x) ]9 Geo. IV. c. 14, s. 6.

[(y) ]Sic. It is believed that the word “credit” was accidentally transposed, so that the true reading would be “obtain money or goods upon credit:” see Lyde v. Barnard (1836) 1 M. & W. 101, per Parke B. Other conjectural emendations are suggested in his judgment and that of Lord Abinger.

[(z) ]Swift v. Jewsbury (1874) Ex. Ch. L. R. 9 Q. B. 301, 43 L. J. Q. B. 56.

[(a) ]Parke and Alderson BB. in Lyde v. Barnard (1836) note (y): contra Lord Abinger C. B. and Gurney B. And see Bishop v. Balkis Consolidated Co. (1890) 25 Q. B. Div. 512, 59 L. J. Q. B. 565.

[(b) ]Swann v. Phillips (1838) 8 A. & E. 457.

[(c) ]Parke B., 6 M. & W. 373.

[(d) ]See Principles of Contract, 6th ed. 552. In Cornfoot v. Fowke, 6 M. & W. 358, it is difficult to suppose that as a matter of fact the agent’s assertion can have been otherwise than reckless: what was actually decided was that it was misdirection to tell the jury without qualification “that the representation made by the agent must have the same effect as if made by the plaintiff himself:” the defendant’s plea averring fraud without qualification.

[(e) ]Admitted by all the Barons in Cornfoot v. Fowke; Parke, 6 M. & W. at pp. 362, 374, Rolfe at p. 370, Alderson at p. 372. The broader view of Lord Abinger’s dissenting judgment of course includes this.

[(f) ]The decision of the House of Lords in Derry v. Peek (1889) 14 App. Ca. 337, 58 L. J. Ch. 864, tends however to make this opinion less probable.

[(g) ]Barwick v. English Joint Stock Bank (1867) Ex. Ch. L. R. 2 Ex. 259, 36 L. J. Ex. 147; Mackay v. Commercial Bank of New Brunswick (1874) L. R. 5 P. C. 394, 43 L. J. P. C. 31; Swire v. Francis (1877) 3 App. Ca. 106, 47 L. J. P. C. 18 (J. C.); Houldsworth v. City of Glasgow Bank (1880) Sc. 5 App. Ca. 317. See pp. 85, 86, above.

[(h) ]Swire v. Francis, last note.

[(i) ]Lord Cranworth in Western Bank of Scotland v. Addie (1867) L. R. 1 Sc. & D. at pp. 166, 167. Lord Chelmsford’s language is much more guarded.

[(k) ]Denton v. G. N. R. Co. (1856) p. 273, above. No case could be stronger, for (1) the defendant was a corporation; (2) there was no active or intentional falsehood, but the mere negligent continuance of an announcement no longer true; (3) the corporation derived no profit. The point, however, was not discussed.

[(l) ]D. 4. 3, de dolo malo, 15 § 1. Sed an in municipes de dolo detur actio, dubitatur. Et puto ex suo quidem dolo non posse dari, quid enim municipes dolo facere possunt? Sed si quid ad eos pervenit ex dolo eorum qui res eorum administrant, puto dandam. The Roman lawyers adhered more closely to the original conception of moral fraud as the ground of action than our courts have done. The actio de dolo was famosa, and was never an alternative remedy, but lay only when there was no other (si de his rebus alia actio non erit), D. h. t. 1.

[(m) ]L. R. 2 Ex. 259, 265.

[(n) ]Tindal C. J., Malachy v. Soper (1836) 3 Bing. N. C. 371; Bigelow L. C. 42, 52.

[(o) ]Halsey v. Brotherhood (1881) 19 Ch. Div. 386, 51 L. J. Ch. 233, confirming previous authorities. As to the particular subject-matter in that case, see the Patents, Designs and Trade Marks Act, 1883, s. 32, which gives a statutory cause of action; Skinner & Co. v. Shew & Co., ’93, 1 Ch. 413, 62 L. J. Ch. 196, 2 R. 179, C. A.

[(p) ]Ratcliffe v. Evans, ’92, 2 Q. B. 524, 61 L. J. Q. B. 535, C. A.

[(q) ]Wren v. Weild (1869) L. R. 4 Q. B. 730, 38 L. J. Q. B. 327; Halsey v. Brotherhood, note (o) last page (patent; in Wren v. Weild the action is said to be of a new kind, but sustainable with proof of malice); Steward v. Young (1870) L. R. 5 C. P. 122, 39 L. J. C. P. 85 (title to goods); Dicks v. Brooks (1880) 15 Ch. D. 22, 49 L. J. Ch. 812 (copyright in design), see 19 Ch. D. 391.

[(r) ]Benton v. Pratt (1829) 2 Wend. 385; Rice v. Manley (1876) 66 N. Y. (21 Sickels) 82.

[(s) ]See Thorley’s Cattle Food Co. v. Massam (1879) 14 Ch. Div. 763; Dicks v. Brooks, last note but one.

[(t) ]Ratcliffe v. Evans, ’92, 2 Q. B. 524, 61 L. J. Q. B. 535, C. A.

[(u) ]Ibid. ’92, 2 Q. B. at p. 527, per Cur.

[(v) ]Marsh v. Billings (1851) 7 Cush. 322, and Bigelow L. C. 59.

[(w) ]The instructions given at the trial (Bigelow L. C. at p. 63) were held to have drawn too sharp a distinction, and to have laid down too narrow a measure of damages, and a new trial was ordered. It was also said that actual damage need not be proved, sed qu.

[(x) ]Day v. Brownrigg (1878) (reversing Malins V.-C.) 10 Ch. Div. 294, 48 L. J. Ch. 173.

[(y) ]See per Lord Blackburn, 8 App. Ca. at p. 29; Lord Westbury, L. R. 5 H. L. at p. 522; Mellish L. J., 2 Ch. D. at p. 453.

[(z) ]Singer Manufacturing Co. v. Wilson (1876) 2 Ch. D. 434, per Jessel M. R. at pp. 441-2; James L. J. at p. 451; Mellish L. J. at p. 454.

[(a) ]Patents, Designs, and Trade Marks Act, 1883, 46 & 47 Vict. c. 57.

[(b) ]Hendriks v. Montagu (1881) 17 Ch. Div. 638, 50 L. J. Ch. 456; Singer Manufacturing Co. v. Loog (1882) 8 App. Ca. 15.

[(c) ]The facts have to be found by the jury, but the inference that on those facts there was or was not reasonable and probable cause is not for the jury but for the Court: cp. the authorities on false imprisonment, pp. 202—208, above.

[(d) ]Bowen L. J., Abrath v. N. E. R. Co. (1883) 11 Q. B. Div. 440, 455, 52 L. J. Q. B. 620: the decision of the Court of Appeal was affirmed in H. L. (1886) 11 App. Ca. 247, 55 L. J. Q. B. 457. A plaintiff who, being indicted on the prosecution complained of, has been found not guilty on a defect in the indictment (not now a probable event) is sufficiently innocent for this purpose: Wicks v. Fentham (1791) 4 T. R. 247, 2 R. R. 374.

[(e) ]Fitzjohn v. Mackinder (Ex. Ch. 1861) 9 C. B. N. S. 505, 30 L. J. C. P. 257 (diss. Blackburn and Wightman JJ.).

[(f) ]Edwards v. Midland Rail. Co. (1880) 6 Q. B. D. 287, 50 L. J. Q. B. 281, Fry J.

[(g) ]See the judgment in the case last cited.

[(h) ]11 App. Ca. at p. 250.

[(i) ]Lord Fitzgerald, 11 App. Ca. at p. 244; Lord Selborne at p. 256.

[(k) ]It is common knowledge that the costs allowed in an action are hardly ever a real indemnity. The true reason is that litigation must end somewhere. If A. may sue B. for bringing a vexatious action, then, if A. fails to persuade the Court that B.’s original suit was vexatious, B. may again sue A. for bringing this latter action, and so ad infinitum.

[(l) ]See the full exposition in the Court of Appeal in Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q. B. Div. 674, 52 L. J. Q. B. 488, especially the judgment of Bowen L. J.

[(m) ]Bowen L. J., 11 Q. B. D. at p. 690. There has been a contrary decision in Vermont: Closson v. Staples (1869) 42 Vt. 209; 1 Am. Rep. 316. We do not think it is generally accepted in other jurisdictions; it is certainly in accordance with the opinion expressed by Butler in his notes to Co. Lit. 161 a, but Butler does not attend to the distinction by which the authorities he relies on are explained.

[(n) ]11 Q. B. Div. 691.

[(o) ]Quartz Hill Gold Mining Co. v. Eyre (1883) note (l). The contrary opinions expressed in Johnson v. Emerson (1871) L. R. 6 Ex. 329, 40 L. J. Ex. 201, with reference to proceedings under the Bankruptcy Act of 1869, are disapproved: under the old bankruptcy law it was well settled that an action might be brought for malicious proceedings.

[(p) ]Savile or Savill v. Roberts (1698) 1 Ld. Raym. 374, 379; 12 Mod. 208, 210, and also in 5 Mod., Salkeld, and Carthew.

[(q) ]See Cooley on Torts, 187. As to British India, see Raj Chunder Roy v. Shama Soondari Debi, I. L. R. 4 Cal. 583.

[(r) ]Metropolitan Bank v. Pooley (1885) 10 App. Ca. 210, 54 L. J. Q. B. 449.

[(s) ]Cotterell v. Jones (1851) 11 C. B. 713, 21 L. J. C. P. 2.

[(ss) ]Stephen (Sir Herbert) on Malicious Prosecution, 36-39, see especially at p. 37.

[(t) ]F. N. B. 114 D. sqq.

[(u) ]Mogul Steamship Company v. M‘Gregor, ’92, A. C. 25, in H. L.

[(x) ]Bowen L. J. in S. C. in C. A. (1889) 23 Q. B. Div. at p. 616.

[(y) ]Lord Field, ’92, A. C. at p. 52.

[(z) ]“There are some forms of injury which can only be effected by the combination of many [persons]”: Lord Hannen, ’92, A. C. at p. 60.

[(a) ]6 Man. & Gr. 205, 953 (1844). The defendants justified in a plea which has the merit of being amusing.

[(b) ]Per Coltman J., 6 Man. & Gr. at p. 959.

[(c) ]Hutchins v. Hutchins (1845) 7 Hill 104, and Bigelow L. C. 207. See Mr. Bigelow’s note thereon.

[(d) ]Mogul Steamship Company v. McGregor (1889) 23 Q. B. Div. 598, 58 L. J. Q. B. 465 (diss. Lord Esher M. R.); in H. L. ’92, A. C. 25, 61 L. J. Q. B. 295. Lord Esher was apparently prepared to hold that whenever A. and B. make an agreement which, as between themselves, is void as in restraint of trade, and C. suffers damage as a proximate consequence, A. and B. are wrongdoers as against C. This is clearly negatived by the decision of the House of Lords, see the opinions of Lord Halsbury L. C., Lord Watson, Lord Bramwell and Lord Hannen.

[(e) ]Bowen L. J., 23 Q. B. Div. at p. 618.

[(f) ]Fry L. J., 23 Q. B. Div. at p. 628.

[(g) ]Temperton v. Russell, ’93, 1 Q. B. 715, 4 R. 376, 62 L. J. Q. B. 412.

[(h) ]Carrington v. Taylor (1809) 11 East 571, 11 R. R. 270, following Keeble v. Hickeringill (1705) 11 East 573 in notis, 11 R. R. 273 n, where see Holt’s judgment. And see Lord Field’s opinion in Mogul Steamship Company v. McGregor, ’92, A. C. 25, 51, 61 L. J. Q. B. 295.

[(i) ]Tarleton v. McGawley, 1 Peake 270, 3 R. R. vi. 689: the defendant’s act in firing at negroes to prevent them from trading with the plaintiff’s ship was of course unlawful per se.

[(k) ]Cp. Ibbotson v. Peat (1865) 3 H. & C. 644, 34 L. J. Ex. 118.

[(l) ]See p. 135, above.

[(m) ]Mogul Steamship Company v. McGregor, note (d).

[(n) ]Fry L. J., 23 Q. B. Div. at p. 628.

[(o) ]Lord Hannen in Mogul Steamship Company v. McGregor, ’92, A. C. at p. 60.

[(p) ]Gregory v. Duke of Brunswick, supra, p. 292.

[(q) ]Keeble v. Hickeringill, note (h) last page.

[(r) ]Lumley v. Gye (1853) 2 E. & B. 216, 22 L. J. Q. B. 463; Bowen v. Hall (1881) 6 Q. B. Div. 333, 50 L. J. Q. B. 305.

[(s) ]Holt C. J. in Ashby v. White at p. 13 of the special report first printed in 1837. The action was on the case merely because trespass would not lie for the infringement of an incorporeal right of that kind. The right to petition Parliament is not a franchise in the sense that any elector can compel his representative in the House of Commons to present a particular petition: Chaffers v. Goldsmid, ’94, 1 Q. B. 186, 10 R. Feb. 219.

[(t) ]Tozer v. Child (1857) Ex. Ch. 7 E. & B. 377, 26 L. J. Q. B. 151.

[(u) ]Lord Selborne, Metrop. Bank v. Pooley (1885) 10 App. Ca. 210, 218, 54 L. J. Q. B. 449.

[(x) ]Bradlaugh v. Newdegate (1883) 11 Q. B. D. 1, 52 L. J. Q. B. 454. As to what will amount to a common interest in a suit so as to justify maintenance, Alabaster v. Harness, ’94, 2 Q. B. 897.

[(y) ]Harris v. Brisco (1886) 17 Q. B. Div. 504, 55 L. J. Q. B. 423.

[(a) ]Hollins v. Fowler (1875) L.R. 7 H. L. 757, 44 L. J. Q. B. 169.

[(b) ]In trespass, Kirk v. Gregory (1876) 1 Ex. D. 55, 45 L. J. Ex. 186: in trover, Hiort v. Bott (1874) L. R. 9 Ex. 86, 43 L. J. Ex. 81.

[(c) ]Hollins v. Fowler (1875) L. R. 7 H. L. 757, 44 L. J. Q. B. 169; Cundy v. Lindsay (1878) 3 App. Ca. 459, 47 L. J. Q. B. 481.

[(d) ]See Pilcher v. Rawlins (1871) L. R. 7 Ch. 259, 41 L. J. Ch. 485.

[(e) ]Consolidated by the Factors Act, 1889, 52 & 53 Vict. c. 45.

[(f) ]See Mr. F. W. Maitland’s articles on “The Seisin of Chattels” and “The Mystery of Seisin,” L. Q. R. i. 324, ii. 481, where divers profitable comparisons of the rules concerning real and personal property will be found.

[(g) ]See “An Essay on Possession in the Common Law” by Mr. (now Justice) R. S. Wright and the present writer (Oxford: Clarendon Press, 1888).

[(h) ]Yet it is not certain that he could not maintain trespass against a stranger; see Moore v. Robinson (1831), 2 B. & Ad. 817. The law about the custody of servants and persons in a like position has vacillated from time to time, and has never been defined as a whole.

[(i) ]Cp. Holland, “Elements of Jurisprudence,” 6th ed. pp. 170—179.

[(j) ]Formerly it was said that trespass to land was a disturbance not amounting to disseisin, though it might be “vicina disseisinae,” which is explained by “si ad commodum uti non possit.” Bracton, fo. 217 a. I do not think this distinction was regarded in any later period, or was ever attempted as to goods.

[(k) ]E.g., a mortgagee of chattels who has taken possession cannot commit a trespass by removing the goods, although the mortgagor may meanwhile have tendered the amount due: Johnson v. Diprose, ’93, 1 Q. B. 512, 62 L. J. Q. B. 291, 4 R. 291, C. A.

[(l) ]See Smith v. Milles (1786), 1 T. R. 475, 480, and note that “constructive possession,” as used in our books, includes (i.) possession exercised through a servant or licensee; (ii.) possession conferred by law, in certain cases, e.g. on an executor, independently of any physical apprehension or transfer; (iii.) an immediate right to possess, which is distinct from actual possession.

[(m) ]Blackst. iii. 152.

[(n) ]See per Thesiger L. J., 4 Ex. Div. 199.

[(o) ]The exact parallel to trespass de bonis asportatis is of course not trespass qu. cl. fr. simply, but trespass amounting to a disseisin of the freeholder or ouster of the tenant for years or other interest not freehold.

[(p) ]Entick v. Carrington, 19 St. Tr. 1066. “Property” here, as constantly in our books, really means possession or a right to possession.

[(q) ]As a matter of fact, the Dartmoor hunt has an express licence from the Duchy of Cornwall.

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

[(s) ]Pickering v. Rudd (1815) 4 Camp. 219, 221, 16 R. R. 777.

[(t) ]Kenyon v. Hart (1865) 6 B. & S. 249, 252, 34 L. J. M. C. 87; and see per Fry L. J. in Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q. B. Div. 904, 927, 53 L. J. Q. B. 449. It may be otherwise, as in that case, where statutory interests in land are conferred for special purposes.

[(u) ]Chapter XII. below.

[(v) ]Lemmon v. Webb, ’94, 3 Ch. 1, 7 R. July, 111, affd. in H. L. Nov. 27, 1894.

[(x) ]Blackst. iii. 153.

[(y) ]Wright v. Ramscot, 1 Saund. 83, 1 Wms. Saund. 108 (trespass for killing a mastiff).

[(z) ]Dand v. Sexton, 3 T. R. 37 (trespass vi et armis for beating the plaintiff’s dog).

[(a) ]A form of writ is given for chasing the plaintiff’s sheep with dogs, F. N. B. 90 L.; so for shearing the plaintiff’s sheep, ib. 87 G.

[(b) ]P. 185, above.

[(c) ]See Gaylard v. Morris (1849) 3 Ex. 695, 18 L. J. Ex. 297.

[(d) ]“Scratching the panel of a carriage would be a trespass,” Alderson B. in Fouldes v. Willoughby, 8 M. & W. 549. In Kirk v. Gregory (1876) 1 Ex. D. 55, the trespass complained of was almost nominal, but there was a complete asportation while the intermeddling lasted.

[(e) ]See F. N. B. 86-88, passim.

[(f) ]As to the term “reversionary interest” applied to goods, cp. Dicey on Parties, 345. In one way “reversioner” would be more correct than “owner” or “general owner,” for the person entitled to sue in trover or prosecute for theft is not necessarily dominus, and the dominus of the chattel may be disqualified from so suing or prosecuting.

[(g) ]It seems useless to say more of replevin here. The curious reader may consult Mennie v. Blake (1856) 6 E. & B. 842, 25 L. J. Q. B. 399. For the earliest form of writ of entry see Close Rolls, vol. i. p. 32. Blackstone is wrong in stating it to have been older than the assizes.

[(h) ]Under certain conditions waste might amount to trespass, Litt. s. 71, see more in sect. vii. of the present chapter.

[(i) ]For the history and old law, see Co. Litt. 53, 54; Blackst. ii. 281, iii. 225; notes to Greene v. Cole, 2 Wms. Saund. 644; and Woodhouse v. Walker (1880), 5 Q. B. D. 404. The action of waste proper could be brought only “by him that hath the immediate estate of inheritance,” Co. Litt. 53 a.

[(k) ]Blackst. iii. 152, cf. the judgment of Martin B. in Burroughes v. Bayne (1860) 5 H. & N. 296, 29 L. J. Ex. 185, 188; and as to the forms of pleading, Bro. Ab. Accion sur le Case, 103, 109, 113, and see Littleton’s remark in 33 H. VI., 27, pl. 12, an action of detinue where a finding by the defendant was alleged, that “this declaration per inventionem is a new found Haliday”; the case is translated by Mr. Justice Wright in Pollock and Wright on Possession, 174.

[(l) ]Martin B., l. c., whose phrase “in very ancient times” is a little misleading, for trover, as a settled common form, seems to date only from the 16th century; Reeves Hist. Eng. L. iv. 526.

[(m) ]“If the tenant build a new house, it is waste; and if he suffer it to be wasted, it is a new waste.” Co. Litt. 53 a.

[(n) ]Jones v. Chappell (1875) 20 Eq. 539, 540-2 (Jessel M. R.); Meux v. Cobley, ’92, 2 Ch. 253, 61 L. J. Ch. 449.

[(o) ]Cooley on Torts, 333.

[(p) ]Re Cartwright, Avis v. Newman (1889) 41 Ch. D. 532, 58 L. J. Ch. 590. An equitable tenant for life is not liable for permissive waste: Powys v. Blagrave (1854) 4 D. M. G. 448; Re Hotchkys, Freke v. Calmady (1886) 32 Ch. D. 408, 55 L. J. Ch. 546.

[(q) ]Manchester Bonded Warehouse Co. v. Carr (1880) 5 C. P. D. 507, 512, 49 L. J. C. P. 809; following Saner v. Bilton (1878) 7 Ch. D. 815, 821, 47 L. J. Ch. 267; cp. Job v. Potton (1875) 20 Eq. 84, 44 L. J. Ch. 262.

[(r) ]Elias v. Snowdon Slate Quarries Co. (1879) 4 App. Ca. 454, 465, 48 L. J. Ch. 811.

[(s) ]See below in sect. vii. of this chapter.

[(t) ]In the United States, where tenancy in dower is still common, there are many modern decisions on questions of waste arising out of such tenancies. See Cooley on Torts 333, or Scribner on Dower (2nd ed. 1883) i. 212—214; ii. 795 sqq.

[(u) ]As to the general law concerning timber, and its possible variation by local custom, see the judgment of Jessel M. R., Honywood v. Honywood (1874) 18 Eq. 306, 309, 43 L. J. Ch. 652, and Dashwood v. Magniac, ’91, 3 Ch. 306, 60 L. J. Ch. 809, C. A.

[(x) ]See Baker v. Sebright (1879) 13 Ch. D. 179, 49 L. J. Ch. 65; but it seems that a remainderman coming in time would be entitled to the supervision of the Court in such case; 13 Ch. D. at p. 188.

[(y) ]Waste of this kind was known as “equitable waste,” the commission of it by a tenant unimpeachable for waste not being treated as wrongful at common law; see now 36 & 37 Vict. c. 66 (the Supreme Court of Judicature Act, 1873), s. 25, sub-s. 3.

[(z) ]Bubb v. Yelverton (1870) 10 Eq. 465. Here the tenant for life had acted in good faith under the belief that he was improving the property. Wanton acts of destruction would be very differently treated.

[(a) ]2 Wms. Saund. 646.

[(b) ]E. g. Tucker v. Linger (1882) 21 Ch. Div. 18, 51 L. J. Ch. 713.

[(c) ]Bramwell B., adopting the expression of Bosanquet, arg., Hiort v. Bott (1874) L. R. 9 Ex. 86, 89, 43 L. J. Ex. 81. All, or nearly all, the learning on the subject down to 1871 is collected (in a somewhat formless manner it must be allowed) in the notes to Wilbraham v. Snow, 2 Wms. Saund. 87.

[(d) ]Lord v. Price (1874) L. R. 9 Ex. 54, 43 L. J. Ex. 49.

[(e) ]Mears v. L. & S. W. R. Co. (1862) 11 C. B. N. S. 850, 31 L. J. C. P. 220. This appears to have been overlooked in the reasoning if not in the decision of the Court in Coupé Co. v. Maddick, ’91, 2 Q. B. 413, 60 L. J. Q. B. 676, which assumes that a bailor for a term has no remedy against a stranger who injures the chattel.

[(f) ]See 2 Wms. Saund. 108, and per Bramwell L. J., 4 Ex. D. 194.

[(g) ]Hollins v. Fowler (1875) L. R. 7 H. L. 757, 44 L. J. Q. B. 169. Cashing a bill in good faith on a forged indorsement is a conversion: Kleinwort v. Comptoir d’Escompte, ’94, 10 R. July, 277.

[(h) ]Hiort v. Bott, L. R. 9 Ex. 86, 43 L. J. Ex. 81.

[(i) ]Stephens v. Elwall (1815) 4 M. & S. 259, 16 R. R. 458; admitted to be good law in Hollins v. Fowler, L. R. 7 H. L. at pp. 769, 795, and followed in Barker v. Furlong, ’91, 2 Ch. 172, 60 L. J. Ch. 368. Cp. Fine Art Society v. Union Bank of London (1886) 17 Q. B. Div. 705, 56 L. J. Q. B. 70.

[(k) ]Balme v. Hutton, Ex. Ch. (1833) 9 Bing. 471, 475.

[(l) ]Opinion of Blackburn J. in Hollins v. Fowler, L. R. 7 H. L. at p. 766.

[(m) ]See Burroughes v. Bayne (1860) 5 H. & N. 296, 29 L. J. Ex. 185, 188, supra, p. 312.

[(n) ]Alexander v. Southey (1821) 5 B. & A. 247, per Best J. at p. 250.

[(o) ]Fouldes v. Willoughby, 8 M. & W. 540; cp. Wilson v. McLaughlin (1871) 107 Mass. 587.

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

[(q) ]See per Bramwell L. J., 3 Q. B. D. 490; Hiort v. L. & N. W. R. Co. (1879) 4 Ex. Div. 188, 48 L. J. Ex. 545, where however Bramwell L. J. was the only member of the Court who was clear that there was any conversion at all.

[(r) ]Not by judgment without satisfaction; Ex parte Drake (1877) 5 Ch. Div. 866, 46 L. J. Bk. 29; following Brinsmead v. Harrison (1871) L. R. 6 C. P. 584, 40 L. J. C. P. 281.

[(s) ]England v. Cowley (1873) L. R. 8 Ex. 126, see per Kelly C. B. at p. 132, 42 L. J. Ex. 80.

[(t) ]See per Bramwell B. and Kelly C. B. ib. 131, 132.

[(u) ]Lancashire Waggon Co. v. Fitzhugh (1861) 6 H. & N. 502, 30 L. J. Ex. 231 (action by bailor against sheriff for selling the goods absolutely as goods of the bailee under a fi. fa.; the decision is on the pleadings only).

[(x) ]Cooper v. Willomatt (1845) 1 C. B. 672, 14 L. J. C. P. 219.

[(y) ]Jones v. Hough (1879) 5 Ex. Div. 115, 49 L. J. Ex. 211; cp. Heald v. Carey (next note).

[(z) ]Heald v. Carey (1852) 11 C. B. 977, 21 L. J. C. P. 97; but this is really a case of the class last mentioned, for the defendant received the goods on behalf of the true owner, and was held to have done nothing with them that he might not properly do.

[(a) ]L. R. 7 H. L. at pp. 766—768.

[(b) ]Observe that this means physical possession; in some of the cases proposed it would be accompanied by legal possession, in others not.

[(c) ]See per Lord Cairns, 7 H. L. at p. 797. This principle applies to sale and delivery by an auctioneer without notice of the apparent owner’s want of title: Consolidated Co. v. Curtis, ’92, 1 Q. B. 495, 61 L. J. Q. B. 325.

[(d) ]Blackburn, J., 7 H. L. 764, 768.

[(e) ]See last note.

[(f) ]Should we say “honest and reasonable”? It seems not; a person doing a ministerial act of this kind honestly but not reasonably ought to be liable for negligence to the extent of the actual damage imputable to his negligence, not in trover for the full value of the goods; and even apart from the technical effect of conversion, negligence would be the substantial and rational ground of liability. Behaviour grossly inconsistent with the common prudence of an honest man might here, as elsewhere, be evidence of bad faith.

[(g) ]See Stephens v. Elwall (1815) 4 M. & S. 259; 16 R. R. 458; Barker v. Furlong, ’91, 2 Ch. 172, 60 L. J. Ch. 368, p. 318, above.

[(h) ]7 Hen. VII. 22, pl. 3, per Martin. Common learning in modern books.

[(h) ]Biddle v. Bond (1865) 6 B. & S. 225, 34 L. J. Q. B. 137, where it is said that there must be something equivalent to eviction by title paramount.

[(i) ]See Sheridan v. New Quay Co. (1858) 4 C. B. N. S. 618, 28 L. J. C. P. 58; European and Australian Royal Mail Co. v. Royal Mail Steam Packet Co. (1861) 30 L. J. C. P. 247; Jessel M. R. in Ex parte Davies (1881) 19 Ch. Div. 86, 90.

[(k) ]Rogers v. Lambert, ’91, 1 Q. B. 318, 60 L. J. Q. B. 187, following Biddle v. Bond, note (h).

[(l) ]Blackburn J., L. R. 1 Q. B. 614; Cooper v. Willomatt, 1 C. B. 672, 14 L. J. C. P. 219. It can be a trespass only if the bailment is at will.

[(m) ]Donald v. Suckling (1866) L. R. 1 Q. B. 585, 35 L. J. Q. B. 232.

[(n) ]Halliday v. Holgate (1868) Ex. Ch. L. R. 3 Ex. 299; see at p. 302, 37 L. J. Ex. 174.

[(o) ]In Johnson v. Stear (1863) 15 C. B. N. S. 330, 33 L. J. C. P. 130, nominal damages were given; but it is doubtful whether, on the reasoning adopted by the majority of the Court, there should not have been judgment for the defendant: see 2 Wms. Saund. 114; Blackburn J., L. R. 1 Q. B. 617; Bramwell L. J., 3 Q. B. D. 490.

[(p) ]Mulliner v. Florence (1878) 3 Q. B. Div. 484, 47 L. J. Q. B. 700, where an innkeeper sold a guest’s goods. A statutory power of sale was given to innkeepers very shortly after this decision (41 & 42 Vict. c. 38), but the principle may still be applicable in other cases.

[(q) ]Chinery v. Viall (1860) 5 H. & N. 288, 29 L. J. Ex. 180. This rule cannot be applied in favour of a sub-vendor sued for conversion by the ultimate purchaser, there being no privity between them: Johnson v. Lancs. & Yorkshire R. Co. (1878) 3 C. P. D. 499.

[(r) ]“A man cannot merely by changing his form of action vary the amount of damage so as to recover more than the amount to which he is in law really entitled according to the true facts of the case and the real nature of the transaction:” per Cur. 29 L. J. Ex. 184.

[(s) ]Fenn v. Bittleston (1851) 7 Ex. 152, 21 L. J. Ex. 41; where see the distinctions as to trespass and larceny carefully noted in the judgment delivered by Parke B.

[(t) ]L. R. 1 Q. B. at p. 614.

[(u) ]Seton v. Lafone (1887) 19 Q. B. Div. 68, 56 L. J. Q. B. 415.

[(x) ]Bristol and W. of England Bank v. Midland R. Co., ’91, 2 Q. B. 653, 61 L. J. Q. B. 115, 65 L. T. 234, C. A.

[(y) ]Lord Hatherley, Jacobs v. Seward (1872) L. R. 5 H. L. 464, 472, 41 L. J. C. P. 221.

[(z) ]Litt. s. 323.

[(a) ]Murray v. Hall (1849) 7 C. B. 441, 18 L. J. C. P. 161, and Bigelow L. C. 343.

[(b) ]Wilkinson v. Haygarth (1846) 12 Q. B. 837, 16 L. J. Q. B. 103, Co. Litt. 200.

[(c) ]Job v. Potton (1875) 20 Eq. 84, 44 L. J. Ch. 262.

[(d) ]’92, 2 Q. B. 202, 61 L. J. Q. B. 709, C. A.

[(e) ]Cp. Fenn v. Bittleston (1851), 7 Ex. 152, p. 326, above, and similar cases cited in text. Qu. whether, on the facts, B. was even a bailee, or was not rather in the position of a servant having bare custody. The action would have been detinue or trover under the old practice, and was so treated by the Court.

[(f) ]Graham v. Peat (1801) 1 East 244, 246, 6 R. R. 268; Jeffries v. G. W. R. Co. (1856) 5 E. & B. 802, 25 L. J. Q. B. 107; Bourne v. Fosbrooke (1865) 18 C. B. N. S. 515, 34 L. J. C. P. 164; extending the principle of Armory v. Delamirie (1722) 1 Str. 504 [505], and in 1 Sm. L. C.; D. 41. 3, de poss. 53, cf. Paulus Sent. Rec. v. 11 § 2: “sufficit ad probationem si rem corporaliter teneam.” And such use and enjoyment as the nature of the subject-matter admits of is good evidence of possession. See Harper v. Charlesworth (1825) 4 B. & C. 574, and other authorities collected in Pollock and Wright on Possession, 31—35.

[(g) ]Asher v. Whitlock (1865) L. R. 1 Q. B. 1, 35 L. J. Q. B. 17; cp. Cutts v. Spring (1818) 15 Mass. 135, and Bigelow L. C. 341; and Rosenberg v. Cook (1881) 8 Q. B. Div. 62, 51 L. J. Q. B. 170, and see further Pollock and Wright, op. cit. 95—99.

[(h) ]Buckley v. Gross (1863) 3 B. & S. 566, 32 L. J. Q. B. 129.

[(i) ]Lord Campbell C. J. in Jeffries v. G. W. R. Co. (1856) 5 E. & B. at p. 806, 25 L. J. Q. B. 107; but this does not seem consistent with the protection of even a manifestly wrongful possessor against a new extraneous wrong-doer. In Roman law a thief has the interdicts though not the actio furti, which requires a lawful interest in the plaintiff; in the common law it seems that he can maintain trespass.

[(k) ]Lord Denman C. J. in Rogers v. Spence (1844) 13 M. & W. at p. 581. This is precisely Savigny’s theory, which however is not now generally accepted by students of Roman Law. In some respects it fits the common law better. Mr. Justice Holmes in “The Common Law” takes a view ejusdem generis, but distinct.

[(l) ]With Ihering (Grund des Besitzesschutzes, 2d ed. 1869). Cp. the same author’s “Der Besitzwille,” 1889.

[(m) ]Bro. Ab. Trespas, pl. 131; 19 Hen. VI. 45, pl. 94, where it is pointed out that the trespasser’s act is one, but the causes of action are “diversis respectibus,” as where a servant is beaten and the master has an action for loss of service.

[(n) ]See Barker v. Furlong, ’91, 2 Ch. 172, 60 L. J. Ch. 368.

[(o) ]48 Edw. III. 20, pl. 8.

[(p) ]Litt. s. 71. If any doubt be implied in Littleton’s “it is said,” Coke’s commentary removes it. Such an act “concerneth so much the freehold and inheritance, as it doth amount in law to a determination of his will.”

[(q) ]Holford v. Bailey (1849) 13 Q. B. 426, 18 L. J. Q. B. 109, Ex. Ch.

[(r) ]Roberts v. Wyatt (1810) 2 Taunt. 268; 11 R. R. 566.

[(s) ]Wilson v. Barber (1833) 4 B. & Ad. 614.

[(t) ]27 Hen. VII. 39, pl. 49; cp. 16 Hen. VII. 2, pl. 7; Mennie v. Blake (1856) 6 E. & B. 842, 25 L. J. Q. B. 399.

[(u) ]12 Edw. IV. 13, pl. 9; but this was probably an innovation at the time, for Brian dissented. The action appears to have been on the case for spoiling the goods.

[(x) ]See Blades v. Higgs (1865) 11 H. L. C. 621, 34 L. J. C. P. 286, where this was assumed without discussion, only the question of property being argued. But probably that case goes too far in allowing recapture by force, except perhaps on fresh pursuit: see p. 347, below.

[(y) ]The common law might conceivably have held that there was a kind of privity of wrongful estate between an original trespasser und persons claiming through him, and thus applied the doctrine of continuing trespass to such persons; and this would perhaps have been the more logical course. But the natural dislike of the judges to multiplying capital felonies, operating on the intimate connexion between trespass and larceny, has in several directions prevented the law of trespass from being logical. For the law of trespass to land as affected by relation, see Barnett v. Guildford (1855) 11 Ex. 19, 24 L. J. Ex. 280; Anderson v. Radcliffe (1860) Ex. Ch., E. B. & E. 819, 29 L. J. Q. B. 128, and Bigelow L. C. 361—370.

[(z) ]Mr. Gibbons, Preface to the fifth edition of Gale on Easements, 1876.

[(a) ]Holmes, The Common Law, 240, 382.

[(b) ]1 Wms. Saund. 626; Harrop v. Hirst (1868) L. R. 4 Ex. 43, 46, 38 L. J. Ex. 1.

[(c) ]Thus Hopkins v. G. N. R. Co. (1877) 2 Q. B. Div. 224, 46 L. J. Q. B. 265, sets bounds to the exclusive right conferred by the franchise of a ferry, and Dalton v. Angus (1881) 6 App. Ca. 740, 50 L. J. Q. B. 689, discusses with the utmost fulness the nature and extent of the right to lateral support for buildings. Both decisions were given, in form, on a claim for damages from alleged wrongful acts. Yet it is clear that a work on Torts is not the place to consider the many and diverse opinions expressed in Dalton v. Angus, or to define the franchise of a ferry or market. Again the later case of Attorney-General v. Horner (1885) 11 App. Ca. 66, 55 L. J. Q. B. 193, interprets the grant of a market in sive juxta quodam loco, on an information alleging encroachment on public ways by the lessee of the market, and claiming an injunction.

[(d) ]Holford v. Bailey, Ex. Ch. (1848-9) 13 Q. B. 426, 18 L. J. Q. B. 109. See the authorities collected in argument, s. c. in court below, 8 Q. B. at p. 1010.

[(e) ]Vaughan C. J., Thomas v. Sorrell, Vaughan 351.

[(f) ]Wallis v. Harrison (1838) 4 M. & W. 538, 8 L. J. Ex. 44.

[(f) ]Wood v. Leadbitter (1845) 13 M. & W. 838, 14 L. J. Ex. 161; Hyde v. Graham (1862) 1 H. & C. 593, 32 L. J. Ex. 27. A contract to carry passengers does not constitute or include a licence so as to let in this doctrine, though part or the whole of the journey may be on land belonging to the railway company or other carrier: Butler v. M. S. & L. R. Co. (1888) 21 Q. B. Div. 207, 57 L. J. Q. B. 564. The reasoning is perhaps open to criticism: see L. Q. R. v. 99.

[(g) ]See Frogley v. Earl of Lovelace (1859) Joh. 333, where however the agreement was treated as an agreement to execute a legal grant.

[(h) ]Wood v. Leadbitter, 13 M. & W. 838, 844, 14 L. J. Ex. 161.

[(i) ]See further 2 Wms. Saund. 363—365, or Cooley on Torts 51.

[(k) ]39 Hen. VI. 7, pl. 12.

[(l) ]Cornish v. Stubbs (1870) L. R. 5 C. P. 334, 39 L. J. C. P. 202; Mellor v. Watkins (1874) L. R. 9 Q. B. 400.

[(m) ]Wood v. Leadbitter, note (h), last page.

[(n) ]Winter v. Brockwell (1807) 8 East 308, 9 R. R. 454. This class of cases is expressly recognized and distinguished in Wood v. Leadbitter, 13 M. & W. at p. 855.

[(o) ]Liggins v. Inge (1831) 7 Bing. 682, 694, per cur.

[(p) ]Ibid.

[(q) ]Wood v. Leadbitter, p. 338, above; Raffey v. Henderson (1851) 17 Q. B. 574, 21 L. J. Q. B. 49; Hewitt v. Isham (1851) 7 Ex. 77, 21 L. J. Ex. 35 (showing that conversely what purports to be a reservation in a parol demise may operate as a licence).

[(r) ]See Plimmer v. Mayor of Wellington, N. Z. (1884) 9 App. Ca. 699, 53 L. J. P. C. 104, where the two principles do not appear to be sufficiently distinguished. Cp. McManus v. Cooke (1887) 35 Ch. D. 681, 696, per Kay J.; 56 L. J. Ch. 662.

[(s) ]Cooley on Torts, 307—310.

It seems to have sometimes been thought in America that the only difficulty arises from the Statute of Frauds, which is of course a mistake: Wood v. Leadbitter, p. 338, above. The limits of the doctrine are in this country fixed by Ramsden v. Dyson (1866) L. R. 1 H. L. 129.

[(t) ]See Smart v. Jones (1864) 33 L. J. C. P. 154.

[(u) ]See Hyde v. Graham, note (f), p. 338.

[(x) ]Chap. XII. below, ad fin.

[(y) ]Compare Nuttall v. Bracewell (1866) L. R. 2 Ex. 1, 36 L. J. Ex. 1, with Ormerod v. Todmorden Mill Co. (1883) 11 Q. B. Div. 155, 52 L. J. Q. B. 445; and see Gale on Easements, 6th ed. 42, 283. Contra the learned editors of Smith’s Leading Cases, in the notes to Armory v. Delamirie.

[(z) ]Corby v. Hill (1858) 4 C. B. N. S. 556, 27 L. J. C. P. 318. See more in Chap. XII. below.

[(a) ]Cooley on Torts, 323. For the remedial powers given to justices of the peace by later statutes, see Lambarde’s Eirenarcha, cap. 4; 15 Ric. II. c. 2, is still nominally in force. As to what amounts to forcible entry, Jones v. Foley, ’91, 1 Q. B. 730, 60 L. J. Q. B. 464.

[(b) ]Beddall v. Maitland (1881) 17 Ch. D. 174, 50 L. J. Ch. 401; Edwick v. Hawkes (1881) 18 Ch. D. 199, 50 L. J. Ch. 577, and authorities there discussed.

[(c) ]Lord Cairns in Lows v. Telford (1876) 1 App. Ca. at p. 421.

[(d) ]Lows v. Telford (1876) 1 App. Ca. 414, 45 L. J. Ex. 613. Mr. Lightwood seems right in pointing out (Possession of Land, Lond. 1894, p. 38) that even if complete physical possession had not been gained the decision would be justified by the rule that, in case of doubt, legal possession follows title.

[(e) ]See the judgment of Fry, J. in Beddall v. Maitland, and Edwick v. Hawkes, note (b), last page.

[(f) ]Lambarde’s Eirenarcha, cap. 4, p. 142, ed. 1610.

[(g) ]Ib. 148.

[(h) ]F. N. B. 248 H., Bro. Ab. Forcible Entry, 29.

[(i) ]Newton v. Harland (1840) 1 M. & G, 644, 1 Scott N. R. 474; in Harvey v. Brydges (1845) 14 M. & W. at pp. 442-3, they declared themselves unconverted.

[(k) ]Tindal C. J. said that possession gained by forcible entry was illegal: 1 M. & G. 658.

[(l) ]See Lightwood on Possession of Land, p. 141.

[(l) ]Browne v. Dawson (1840) 12 A. & E. 624, 629, 10 L. J. Q. B. 7. If a new trespasser entered in this state of things, could the trespasser in inchoate occupation sue him, or the last possessor? Possibly both.

[(m) ]Mellish L. J., Ex parte Fletcher (1877) 5 Ch. Div. 809, 812.

[(n) ]Holmes v. Wilson (1839) 10 A. & E. 503; Bowyer v. Cook (1847) 4 C. B. 236, 16 L. J. C. P. 177; and see 2 Wms. Saund. 496.

[(o) ]1 Wms. Saund. 20.

[(p) ]Reg. v. Riley (1857) Dears. 149, 22 L. J. M. C. 48.

[(q) ]Blades v. Higgs (1861) 10 C. B. N. S. 713, but the reasons given at page 720 seem wrong, and the decision itself is contrary to the common law as understood in the thirteenth century. One who retook his own goods by force (save, perhaps, on fresh pursuit) was a trespasser and lost the goods. It was even thought needful to state that he was not a felon. See Britton, ed. Nicholls, i. 57, 116. At all events maim or wounding is not justified for this cause: but violence used in defence of a wrongful possession is a new assault, and commensurate resistance to it in personal self-defence is justifiable.

[(r) ]Patrick v. Colerick (1838) 3 M. & W. 483, explaining Blackst. Comm. iii. 4.