The Schedule. Acts of the Governor General in Council.

Measure of damages in general.71. A person who has been wronged is entitled to recover from the wrongdoer as damages such a sum as in the judgment of the Court will fairly compensate him for the harm or loss he has sustained.

Damages for injury to specific property.72. Where specific property has been wrongfully dealt with, the Court may award damages equivalent to the extent to which the value of that property is diminished, but is not bound to award as compensation the cost of replacing the property in its former condition.

A. wrongfully digs out and carries away a quantity of earth from Z.’s land. Z. must make compensation to A., but A. cannot claim to fix the damages by what would be the cost of replacing the earth dug out.

Aggravation or mitigation of damages.73. In awarding damages for wrongs the Court may have regard to the knowledge, intention, and conduct of either or both parties, and may increase or diminish the amount of its award accordingly.

1. A. has defamed Z. A. may show in mitigation of damages that when he made the defamatory statement he believed on reasonable grounds that it was true.

2. A. has negligently pulled down a building on his own land to the damage of Z.’s adjacent land. Z. may show in aggravation of damages that A. wished to disturb Z. in his occupation and purposely caused the work to be done in a reckless manner.

printed by c. f. roworth, great new street, fetter lane, e.c.

Lord Blackburn is now (1895) the only survivor.

Appendix A.

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

Comm. iii. 118.

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

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

Per Cur. Entick v. Carrington, 19 St. Tr. 1066.

See Hollins v. Fowler, L. R. 7 H. L. 757, 44 L. J. Q. B. 169.

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

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

Lord O’Hagan, L. R. 7 H. L. at p. 799.

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

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

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

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

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

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

In his edition of the Institutes, note to Bk. iv. tit. 1, p. 513, 2nd ed.

Rylands v. Fletcher, L. R. 3 H. L. 330, 37 L. J. Ex. 161.

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

L. R. 3 H. L. 330. See Ch. XII. below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4 Denio, 464. The decision seems to be generally accepted as good law.

Guille v. Swan (1822) 19 Johns. 381.

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

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

Digest of the Criminal Law, Arts. 219, 220.

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

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

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

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

Amphlett B. at p. 162.

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

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

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

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

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

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

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

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

So the Court found, having power to draw inferences of fact.

Grove J.

Keating J.

Bovill C. J.

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

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

3 Q. B. D. at p. 338.

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

P. 37, above.

Victorian Railways Commissioners v. Coultas, 13 App. Ca. 222, 57 L. J. P. C. 69.

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

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

Dig. Cr. Law, note to art. 221; Hist. Cr. Law, iii. 5.

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

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

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

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

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

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

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

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

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

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

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

Beasley v. Roney, ’91, 1 Q. B. 509, 60 L. J. Q. B. 408.

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

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

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

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

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

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

Mayor of Manchester v. Williams, ’91, 1 Q. B. 94, 60 L. J. Q. B. 23.

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

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

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

L. R. 1 H. L. 107, 110.

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

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

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

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

20 Q. B. Div. 503.

Chamberlain v. Williamson, 2 M. & S. at p. 414, 15 R. R. at p. 297.

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

Cp. Bentham, Traités de Législation, vol. ii. pt. 2, c. 10.

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

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

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

L. R. 8 Ex. at p. 90, arg.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18 Q. B. at p. 110.

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

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

Hambly v. Trott, 1 Cowp. 375.

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

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

3 & 4 Will. IV. c. 42, p. 60, above.

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

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

24 Ch. D. at p. 463.

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

The distinction will be explained below.

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

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

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

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

Wilson v. Tumman (1843) 6 M. & G. 236; and Serjeant Manning’s note, ib. 239.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Johnson v. Lindsay, ’91, A. C. 371, 65 L. T. 97.

See Maude and Pollock, Merchant Shipping, i. 158, 4th ed.

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

9 B. & C. 591 (1829).

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

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

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

L. R. 3 C. P. 422 (1868).

Byles J. at p. 425.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See per Blackburn J., 1 H. & C. 543.

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

Williams, Crompton, Willes, Byles, Blackburn JJ., diss. Wightman, J.

Willes J. 1 H. & C. at p. 539.

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

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

(1867) L. R. 2 Ex. at p. 265.

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

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

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

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

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

L. R. 1 H. L. 93 (1864-6).

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

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

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

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

Farwell v. Boston and Worcester Railroad Corporation, 4 Met. 49.

Sir Francis Jeune in The Petrel, ’93, P. 320, 323, 1 R. 651, 653.

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

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

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

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

See last note.

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

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

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

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

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

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

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

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

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

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

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

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

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

See Mr. McKinney’s Article in L. Q. R. vi. 189, April 1890, at p. 197.

Parl. Papers, Commercial, No. 21, 1886.

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

History of the Criminal Law, ii. 61.

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

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

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

(1847) 2 Ex. 167.

Vol. ii. p. 64.

Entick v. Carrington, 19 St. Tr. 1043.

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

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

Musgrave v. Chung Teeong Toy, ’91, A. C. 272, 60 L. J. P. C. 28.

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

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

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

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

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

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

28 & 29 Vict. c. 36, s. 16.

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

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

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

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

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

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

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

31 Car. II. c. 2, s. 9.

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

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

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

Cooley on Torts, Ch. 14.

The details of this subject belong to criminal law.

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

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

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

56 & 57 Vict. c. 61. There are subsidiary but not unimportant provisions as to costs.

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

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

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

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

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

See Neate v. Denman (1874) 18 Eq. 127.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6 App. Ca. 203.

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

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

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

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

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

Bowen L. J., 29 Ch. D. at p. 108.

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

P. 32, above.

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

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

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

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

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

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

15 Wall. 524 (1872).

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

6 Cush. 292 (1850).

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

Harvey v. Dunlap, Lalor 193, cited 15 Wall. 539; Morris v. Platt, 32 Conn. 75.

Cooley on Torts, 80.

2 Keyes 169 (1865).

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

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

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

21 St. Tr. 1022 (ad 1783).

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

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

O. W. Holmes 103.

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

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

Hob. 134, ad 1616.

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

Underwood v. Hewson, 1 Strange 596, ad 1723 (defendant was uncocking a gun, plaintiff looking on). It looks very like contributory negligence, or at any rate voluntary exposure to the risk, on the plaintiff’s part. But the law of negligence was then quite undeveloped.

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

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

(1868) L. R. 3 H. L. at p. 341.

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

Davis v. Saunders, 2 Chitty 639.

Gibbons v. Pepper, 1 Lord Raym. 38.

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

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

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

Bramwell B. at p. 267.

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

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

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

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

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

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

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

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

Bowen L. J., 23 Q. B. Div. at p. 615.

Fry L. J., ibid. at pp. 625, 626.

Lord Hannen, s. c. in H. L. ’92, A. C. at p. 59.

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

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

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

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

Cooley on Torts 580.

Rogers v. Rajendro Dutt, 8 Moo. I. A. 103.

8 Moo. I. A. at p. 134.

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

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

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

See Sir W. Markby’s “Elements of Law,” s. 239.

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

D. 39, 3, de aqua, 1, § 12 (Ulpian).

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

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

Jessel M. R., 10 Ch. Div. 304.

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

See Addison on Torts, p. 384, 7th ed.; Cooley on Torts, 303, sqq.

Cp. Stephen, Digest of the Criminal Law, art. 204.

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

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

Foster’s Crown Law, 260.

Foster, l. c. “Motive” is hardly the correct word, but the meaning is plain enough.

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

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

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

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

Notwithstanding the doubt expressed by Hawkins J., 8 Q. B. D. at pp. 553, 554.

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

Illust. to s. 80. On the point of actual consent, cf. ss. 87 and 88.

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

Per Bayley J. 3 B. & Ald. at p. 311, and Holroyd J. at p. 314.

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

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

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

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

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

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

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

18 Q. B. Div. at p. 698.

Bowen L. J. 18 Q. B. Div. at p. 695.

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

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

’91 A. C. 325.

Lord Herschell, ’91 A. C. at pp. 360, 362.

Lord Halsbury, ’91, A. C. at pp. 336—338.

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

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

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

L. R. 10 Ex. at p. 267.

Lord Halsbury, ’91, A. C. at p. 337.

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

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

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

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

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

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

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

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

This is the term adopted in the Indian Penal Code.

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

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

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

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

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

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

Dicey, op. cit. 426.

2 W. Bl. 892.

Blackstone J. in his dissenting judgment, 2 W. Bl. at p. 895.

D. 9. 2, ad 1. Aquil. 45, § 4; supra, p. 124.

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

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

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

P. 32, above.

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

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

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

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

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

This is well noted in Cooley on Torts, 50.

Cp. Blackstone, Bk. iii. c. 1.

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

P. 27, above.

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

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

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

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

Maule J. 2 C. B. 499.

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

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

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

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

2 Lord Raym. at p. 955.

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

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

See more in Ch. VII. below.

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

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

See Mayne on Damages, 5th ed. c. 13.

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

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

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

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

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

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

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

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

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

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

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

Mayne on Damages, 119 (5th ed.).

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

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

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

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

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

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

Bonnard v. Perryman, ’91, 2 Ch. 269, 60 L. J. Ch. 617, C. A.

Salomons v. Knight, ’91, 2 Ch. 294, 60 L. J. Ch. 743, C. A.

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

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

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

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

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

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

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

See per Pollock B., L. R. 9 Ex. at p. 131.

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

Page 67.

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

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

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

Betts v. Gibbins, 2 A. & E. 57.

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

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

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

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

33 & 34 Vict. c. 23.

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

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

Blackburn J. ibid.

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

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

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

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

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

1 Bing. N. C. 198, 217 (1834).

3 Mont. & A. 110 (1837).

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

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

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

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

Ib. per Wightman and Willes JJ.

Per Cur., The Halley, L. R. 2 P. C. at p. 202.

British South Africa Co. v. Companhia de Moçambique, ’93, A. C. 602, 6 R. 1.

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

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

3 Swanst. 603.

3 Swanst. 604.

2 Bing. N. C. 781 (1836).

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

2 Bing. N. C. 202.

5 East 124, 1 Smith, 351, 7 R. R. 663.

Cooke’s Bankrupt Law, 487.

See the text of the statutes, Appendix C.

See Blake Odgers, Digest of Law of Libel, 2nd ed. 520.

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

See p. 52, above.

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

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

Miller v. Dell, ’91, 1 Q. B. 468, 60 L. J. Q. B. 404, C. A.

11 & 12 Vict. c. 44, s. 8.

24 Geo. II. c. 44, s. 8.

Public Authorities Protection Act, 1893, 56 & 57 Vict. c. 61.

See 9 Q. B. Div. 68, per Brett L. J.

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

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

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

Blackst. Comm. iii. 120.

R. v. Cotesworth, 6 Mod. 172.

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.”

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.

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.

Bacon Abr. “Assault and Battery,” A; Hawkins P. C. i. 110.

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.

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.

Tuberville v. Savage (1669) 1 Mod. 3.

Holt C. J., Cole v. Turner, 6 Mod. 149.

Steph. Dig. Cr. Law, art. 241, illustrations.

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

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.

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.

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.

P. 147, above.

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.

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.

Blackst. Comm. iii. 4.

Reece v. Taylor, 4 N. & M. 470.

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.

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

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.

Blackst. Comm. iii. 127.

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.

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

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

Ch. IV. p. 97, above.

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.

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.

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.

Stephen, 1 Hist. Cr. Law, 200.

Griffin v. Coleman, note (f) last page.

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

Pp. 72, 73, above.

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

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.

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

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.

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

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

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

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.

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.

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.

H. Stephen on Malicious Prosecution, ch. 7.

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.

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).

Y. B. 19 Hen. VI. 45, pl. 94.

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.

Blackst. Comm. iii. 140.

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.

20 & 21 Vict. c. 85, ss. 33, 59.

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.

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

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.

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.

Willes J., L. R. 2 C. P. 622.

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

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.

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

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.

Bramwell B. in Thompson v. Ross, last note.

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

Littledale J. cited with approval by Blackburn J., L. R. 3 Q. B. 602.

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

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.

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

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

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.

Note to Grinnell v. Wells, 7 M. & G. 1044.

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

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

22 Hen. VI. 31 (ad 1443).

L. R. 2 C. P. 621-2.

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

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.

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.

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

11 East 576; supra, p. 135.

Mogul Steamship Co. v. McGregor, ’92, A. C. 25.

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

Such as the definition of blasphemous libel, and the grounds on which it is punishable.

Quære, whether defamatory matter recorded on a phonograph would be a libel or only a potential slander.

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.

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

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.”

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.

P. 28, above.

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

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

Maule J. ex relat. Bramwell L. J., 7 Q. B. D. 437.

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).

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.

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

Lynch v. Knight, 9 H. L. C. 577.

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

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.

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

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.

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.

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.

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.

P. 197, above.

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.

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

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

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.”

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

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

Re Weare, ’93, 2 Q. B. 439.

Alexander v. Jenkins, ’92, 1 Q. B. 797, 61 L. J. Q. B. 634, C. A.

L. R. 2 Ex. at p. 330.

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

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

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).

Per C. A., Ratcliffe v. Evans, ’92, 2 Q. B. 524, 527, 61 L. J. Q. B. 535.

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.

See Bigelow L. C. 117.

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.

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

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

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.

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.

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

Blake Odgers 154.

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.

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.

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.

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.

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

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.

See 7 App. Ca. 748 (Lord Selborne).

Blake Odgers 109—112.

7 App. Ca. 768, 782, 790, cf. p. 787.

Lord Blackburn, 7 App. Ca. 776.

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.”

Australian Newspaper Co. v. Bennett, 6 R. Sept. 36, P. C.

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

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

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.

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

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

Lord Esher M. R., 20 Q. B. Div. at p. 280.

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

(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.

Bowen L. J., 20 Q. B. Div. at p. 283.

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

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.

Lord Esher M. R., Merivale v. Carson, 20 Q. B. Div. 275, 281.

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.

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.

Purcell v. Sowler, 2 C. P. Div. 215, 46 L. J. C. P. 308.

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.

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

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

Compare the similar doctrine in trespass, which has peculiar consequences. But of this in its place.

Littledale J., 10 B. & C. at p. 272.

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

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

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

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

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.”

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.

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

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.

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.

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.

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.

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.

See per Lord Blackburn, 7 App. Ca. 787.

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

Cases of this kind have been very troublesome. See Blake Odgers 217-21.

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.

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

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

Baker v. Carrick, ’94, 1 Q. B. 838, 9 R. Apr. 212, C. A.

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

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.

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

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

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.

Per Cur. in Wason v. Walter, L. R. 4 Q. B. at p. 87.

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.

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

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

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.

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.

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

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

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.

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

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

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

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

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.

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.

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

Pittard v. Oliver, ’91, 1 Q. B. 474, 60 L. J. Q. B. 219, C. A.

Hebditch v. MacIlwaine, ’94, 2 Q. B. 54, 9 R. July, 204, C. A.

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.

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

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.

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.

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

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.

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

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

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.

Salomons v. Knight, ’91, 2 Ch. 294, 60 L. J. Ch. 743, C. A.

F. N. B. 95 E. sqq.

See per Lord Chelmsford, L. R. 6 H. L. at p. 390.

See pp. 179, 180, above.

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

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

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.

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

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

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.

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

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

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.

Bowen L. J., 29 Ch. Div. 483.

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.

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

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.

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).

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

“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.

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

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.

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.

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

Ib. at p. 168.

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

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

Lord Herschell, 14 App. Ca. at p. 375.

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.

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).

L. Q. R. v. 410; for a different view, see Sir William Anson, ib. vi. 72.

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

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

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

’93, 1 Q. B. at p. 498, per Lord Esher.

See judgments of Lindley and Bowen L.JJ., in Angus v. Clifford, ’91, 2 Ch. 449.

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

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.

Sir W. Anson, L. Q. R. vi. 74.

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.

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.

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.

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

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).

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.

Lord Herschell, Derry v. Peek, 14 App. Ca. at p. 371.

14 App. Ca. 337, 58 L. J. Ch. 864.

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.

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.

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

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

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

Op. cit. 2.

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

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

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.

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

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.

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.

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

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

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

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.

See especially per Jessel M. R., 20 Ch. Div. 21.

See per Lord Blackburn, Smith v. Chadwick, 9 App. Ca. at p. 196.

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

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.

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.

By Lord Eldon in Evans v. Bicknell (1801) 6 Ves. 174, 182, 186, 5 R. R. 245, 251, 255.

9 Geo. IV. c. 14, s. 6.

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.

Swift v. Jewsbury (1874) Ex. Ch. L. R. 9 Q. B. 301, 43 L. J. Q. B. 56.

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.

Swann v. Phillips (1838) 8 A. & E. 457.

Parke B., 6 M. & W. 373.

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.

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.

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.

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.

Swire v. Francis, last note.

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.

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.

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.

L. R. 2 Ex. 259, 265.

Tindal C. J., Malachy v. Soper (1836) 3 Bing. N. C. 371; Bigelow L. C. 42, 52.

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.

Ratcliffe v. Evans, ’92, 2 Q. B. 524, 61 L. J. Q. B. 535, C. A.

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.

Benton v. Pratt (1829) 2 Wend. 385; Rice v. Manley (1876) 66 N. Y. (21 Sickels) 82.

See Thorley’s Cattle Food Co. v. Massam (1879) 14 Ch. Div. 763; Dicks v. Brooks, last note but one.

Ratcliffe v. Evans, ’92, 2 Q. B. 524, 61 L. J. Q. B. 535, C. A.

Ibid. ’92, 2 Q. B. at p. 527, per Cur.

Marsh v. Billings (1851) 7 Cush. 322, and Bigelow L. C. 59.

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.

Day v. Brownrigg (1878) (reversing Malins V.-C.) 10 Ch. Div. 294, 48 L. J. Ch. 173.

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.

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.

Patents, Designs, and Trade Marks Act, 1883, 46 & 47 Vict. c. 57.

Hendriks v. Montagu (1881) 17 Ch. Div. 638, 50 L. J. Ch. 456; Singer Manufacturing Co. v. Loog (1882) 8 App. Ca. 15.

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.

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.

Fitzjohn v. Mackinder (Ex. Ch. 1861) 9 C. B. N. S. 505, 30 L. J. C. P. 257 (diss. Blackburn and Wightman JJ.).

Edwards v. Midland Rail. Co. (1880) 6 Q. B. D. 287, 50 L. J. Q. B. 281, Fry J.

See the judgment in the case last cited.

11 App. Ca. at p. 250.

Lord Fitzgerald, 11 App. Ca. at p. 244; Lord Selborne at p. 256.

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.

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.

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.

11 Q. B. Div. 691.

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.

Savile or Savill v. Roberts (1698) 1 Ld. Raym. 374, 379; 12 Mod. 208, 210, and also in 5 Mod., Salkeld, and Carthew.

See Cooley on Torts, 187. As to British India, see Raj Chunder Roy v. Shama Soondari Debi, I. L. R. 4 Cal. 583.

Metropolitan Bank v. Pooley (1885) 10 App. Ca. 210, 54 L. J. Q. B. 449.

Cotterell v. Jones (1851) 11 C. B. 713, 21 L. J. C. P. 2.

Stephen (Sir Herbert) on Malicious Prosecution, 36-39, see especially at p. 37.

F. N. B. 114 D. sqq.

Mogul Steamship Company v. M‘Gregor, ’92, A. C. 25, in H. L.

Bowen L. J. in S. C. in C. A. (1889) 23 Q. B. Div. at p. 616.

Lord Field, ’92, A. C. at p. 52.

“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.

6 Man. & Gr. 205, 953 (1844). The defendants justified in a plea which has the merit of being amusing.

Per Coltman J., 6 Man. & Gr. at p. 959.

Hutchins v. Hutchins (1845) 7 Hill 104, and Bigelow L. C. 207. See Mr. Bigelow’s note thereon.

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.

Bowen L. J., 23 Q. B. Div. at p. 618.

Fry L. J., 23 Q. B. Div. at p. 628.

Temperton v. Russell, ’93, 1 Q. B. 715, 4 R. 376, 62 L. J. Q. B. 412.

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.

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.

Cp. Ibbotson v. Peat (1865) 3 H. & C. 644, 34 L. J. Ex. 118.

See p. 135, above.

Mogul Steamship Company v. McGregor, note (d).

Fry L. J., 23 Q. B. Div. at p. 628.

Lord Hannen in Mogul Steamship Company v. McGregor, ’92, A. C. at p. 60.

Gregory v. Duke of Brunswick, supra, p. 292.

Keeble v. Hickeringill, note (h) last page.

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.

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.

Tozer v. Child (1857) Ex. Ch. 7 E. & B. 377, 26 L. J. Q. B. 151.

Lord Selborne, Metrop. Bank v. Pooley (1885) 10 App. Ca. 210, 218, 54 L. J. Q. B. 449.

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.

Harris v. Brisco (1886) 17 Q. B. Div. 504, 55 L. J. Q. B. 423.

Hollins v. Fowler (1875) L.R. 7 H. L. 757, 44 L. J. Q. B. 169.

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.

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.

See Pilcher v. Rawlins (1871) L. R. 7 Ch. 259, 41 L. J. Ch. 485.

Consolidated by the Factors Act, 1889, 52 & 53 Vict. c. 45.

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.

See “An Essay on Possession in the Common Law” by Mr. (now Justice) R. S. Wright and the present writer (Oxford: Clarendon Press, 1888).

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.

Cp. Holland, “Elements of Jurisprudence,” 6th ed. pp. 170—179.

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.

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.

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.

Blackst. iii. 152.

See per Thesiger L. J., 4 Ex. Div. 199.

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.

Entick v. Carrington, 19 St. Tr. 1066. “Property” here, as constantly in our books, really means possession or a right to possession.

As a matter of fact, the Dartmoor hunt has an express licence from the Duchy of Cornwall.

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

Pickering v. Rudd (1815) 4 Camp. 219, 221, 16 R. R. 777.

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.

Chapter XII. below.

Lemmon v. Webb, ’94, 3 Ch. 1, 7 R. July, 111, affd. in H. L. Nov. 27, 1894.

Blackst. iii. 153.

Wright v. Ramscot, 1 Saund. 83, 1 Wms. Saund. 108 (trespass for killing a mastiff).

Dand v. Sexton, 3 T. R. 37 (trespass vi et armis for beating the plaintiff’s dog).

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.

P. 185, above.

See Gaylard v. Morris (1849) 3 Ex. 695, 18 L. J. Ex. 297.

“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.

See F. N. B. 86-88, passim.

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.

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.

Under certain conditions waste might amount to trespass, Litt. s. 71, see more in sect. vii. of the present chapter.

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.

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.

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.

“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.

Jones v. Chappell (1875) 20 Eq. 539, 540-2 (Jessel M. R.); Meux v. Cobley, ’92, 2 Ch. 253, 61 L. J. Ch. 449.

Cooley on Torts, 333.

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.

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.

Elias v. Snowdon Slate Quarries Co. (1879) 4 App. Ca. 454, 465, 48 L. J. Ch. 811.

See below in sect. vii. of this chapter.

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.

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.

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.

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.

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.

2 Wms. Saund. 646.

E. g. Tucker v. Linger (1882) 21 Ch. Div. 18, 51 L. J. Ch. 713.

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.

Lord v. Price (1874) L. R. 9 Ex. 54, 43 L. J. Ex. 49.

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.

See 2 Wms. Saund. 108, and per Bramwell L. J., 4 Ex. D. 194.

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.

Hiort v. Bott, L. R. 9 Ex. 86, 43 L. J. Ex. 81.

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.

Balme v. Hutton, Ex. Ch. (1833) 9 Bing. 471, 475.

Opinion of Blackburn J. in Hollins v. Fowler, L. R. 7 H. L. at p. 766.

See Burroughes v. Bayne (1860) 5 H. & N. 296, 29 L. J. Ex. 185, 188, supra, p. 312.

Alexander v. Southey (1821) 5 B. & A. 247, per Best J. at p. 250.

Fouldes v. Willoughby, 8 M. & W. 540; cp. Wilson v. McLaughlin (1871) 107 Mass. 587.

Miller v. Dell, ’91, 1 Q. B. 468, 60 L. J. Q. B. 404, C. A.

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.

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.

England v. Cowley (1873) L. R. 8 Ex. 126, see per Kelly C. B. at p. 132, 42 L. J. Ex. 80.

See per Bramwell B. and Kelly C. B. ib. 131, 132.

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).

Cooper v. Willomatt (1845) 1 C. B. 672, 14 L. J. C. P. 219.

Jones v. Hough (1879) 5 Ex. Div. 115, 49 L. J. Ex. 211; cp. Heald v. Carey (next note).

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.

L. R. 7 H. L. at pp. 766—768.

Observe that this means physical possession; in some of the cases proposed it would be accompanied by legal possession, in others not.

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.

Blackburn, J., 7 H. L. 764, 768.

See last note.

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.

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.

7 Hen. VII. 22, pl. 3, per Martin. Common learning in modern books.

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.

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.

Rogers v. Lambert, ’91, 1 Q. B. 318, 60 L. J. Q. B. 187, following Biddle v. Bond, note (h).

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.

Donald v. Suckling (1866) L. R. 1 Q. B. 585, 35 L. J. Q. B. 232.

Halliday v. Holgate (1868) Ex. Ch. L. R. 3 Ex. 299; see at p. 302, 37 L. J. Ex. 174.

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.

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.

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.

“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.

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.

L. R. 1 Q. B. at p. 614.

Seton v. Lafone (1887) 19 Q. B. Div. 68, 56 L. J. Q. B. 415.

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.

Lord Hatherley, Jacobs v. Seward (1872) L. R. 5 H. L. 464, 472, 41 L. J. C. P. 221.

Litt. s. 323.

Murray v. Hall (1849) 7 C. B. 441, 18 L. J. C. P. 161, and Bigelow L. C. 343.

Wilkinson v. Haygarth (1846) 12 Q. B. 837, 16 L. J. Q. B. 103, Co. Litt. 200.

Job v. Potton (1875) 20 Eq. 84, 44 L. J. Ch. 262.

’92, 2 Q. B. 202, 61 L. J. Q. B. 709, C. A.

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.

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.

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.

Buckley v. Gross (1863) 3 B. & S. 566, 32 L. J. Q. B. 129.

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.

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.

With Ihering (Grund des Besitzesschutzes, 2d ed. 1869). Cp. the same author’s “Der Besitzwille,” 1889.

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.

See Barker v. Furlong, ’91, 2 Ch. 172, 60 L. J. Ch. 368.

48 Edw. III. 20, pl. 8.

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.”

Holford v. Bailey (1849) 13 Q. B. 426, 18 L. J. Q. B. 109, Ex. Ch.

Roberts v. Wyatt (1810) 2 Taunt. 268; 11 R. R. 566.

Wilson v. Barber (1833) 4 B. & Ad. 614.

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.

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.

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.

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.

Mr. Gibbons, Preface to the fifth edition of Gale on Easements, 1876.

Holmes, The Common Law, 240, 382.

1 Wms. Saund. 626; Harrop v. Hirst (1868) L. R. 4 Ex. 43, 46, 38 L. J. Ex. 1.

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.

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.

Vaughan C. J., Thomas v. Sorrell, Vaughan 351.

Wallis v. Harrison (1838) 4 M. & W. 538, 8 L. J. Ex. 44.

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.

See Frogley v. Earl of Lovelace (1859) Joh. 333, where however the agreement was treated as an agreement to execute a legal grant.

Wood v. Leadbitter, 13 M. & W. 838, 844, 14 L. J. Ex. 161.

See further 2 Wms. Saund. 363—365, or Cooley on Torts 51.

39 Hen. VI. 7, pl. 12.

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.

Wood v. Leadbitter, note (h), last page.

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.

Liggins v. Inge (1831) 7 Bing. 682, 694, per cur.

Ibid.

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).

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.

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.

See Smart v. Jones (1864) 33 L. J. C. P. 154.

See Hyde v. Graham, note (f), p. 338.

Chap. XII. below, ad fin.

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.

Corby v. Hill (1858) 4 C. B. N. S. 556, 27 L. J. C. P. 318. See more in Chap. XII. below.

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.

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.

Lord Cairns in Lows v. Telford (1876) 1 App. Ca. at p. 421.

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.

See the judgment of Fry, J. in Beddall v. Maitland, and Edwick v. Hawkes, note (b), last page.

Lambarde’s Eirenarcha, cap. 4, p. 142, ed. 1610.

Ib. 148.

F. N. B. 248 H., Bro. Ab. Forcible Entry, 29.

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.

Tindal C. J. said that possession gained by forcible entry was illegal: 1 M. & G. 658.

See Lightwood on Possession of Land, p. 141.

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.

Mellish L. J., Ex parte Fletcher (1877) 5 Ch. Div. 809, 812.

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.

1 Wms. Saund. 20.

Reg. v. Riley (1857) Dears. 149, 22 L. J. M. C. 48.

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.

Patrick v. Colerick (1838) 3 M. & W. 483, explaining Blackst. Comm. iii. 4.

Per Littleton J., 9 Edw. IV. 35, pl. 10.

Blackstone, l. c.; Anthony v. Haney (1832) 8 Bing. 187, and Bigelow L. C. 374.

Tindal C. J. in Anthony v. Haney: but this seems doubtful.

Semayne’s Ca. (1604-5) 5 Co. Rep. 91 b, and in 1 Sm. L. C.

Glasspoole v. Young (1829) 9 B. & C. 696; Garland v. Carlisle (1837) 4 Cl. & F. 693. As to the protection of subordinate officers acting in good faith, see in the Chapter of General Exceptions, p. 106, above.

Burdett v. Abbot (1811) 14 East 1, 12 R. R. 450, a classical case.

And it is contempt in the sheriff himself not to execute such process by breaking in if necessary: Harvey v. Harvey (1884) 26 Ch. D. 644, 51 L. T. 508. Otherwise where attachment is, or was, merely a formal incident in ordinary civil process.

See West v. Nibbs (1847) 4 C. B. 172, 17 L. J. C. P. 150.

As to distress in general, Blackst. Comm. book iii. c. 1.

“All chattels whatever are distrainable damage feasant;” Gilbert on Distress and Replevin (4th ed. 1823) 49. A locomotive has been distrained damage feasant; Ambergate, &c. R. Co. v. Midland R. Co. (1853) 2 E. & B. 793; it was not actually straying, but had been put on the Midland Company’s line without the statutable approval of that company.

Roscoe v. Boden, 10 R. June, 229; ’94, 1 Q. B. 608, nom. Boden v. Roscoe.

Cape v. Scott (1874) L. R. 9 Q. B. 269, 43 L. J. Q. B. 65. It is settled that a commoner can distrain the cattle of a stranger, notwithstanding that an action of trespass would not lie (22 Ass. pl. 48) for the disturbance.

Goodwin v. Cheveley (1859) 4 H. & N. 631, 28 L. J. Ex. 298.

2 Wms. Saund. 671.

Co. Litt. 142 a.

Vaspor v. Edwards (1701) 12 Mod. 660, where the incidents of damage feasant generally are expounded, and see p. 356, below.

Tyrringham’s Ca., 4 Co. Rep. 38 b.

Rea v. Sheward (1839) 2 M. & W. 424.

Nash v. Lucas (1867) L. R. 2 Q. B. 590. Otherwise where the window is already partly open: Crabtree v. Robinson (1885) 15 Q. B. D. 312, 54 L. J. Q. B. 544.

12 & 13 Vict. c. 92, s. 6; 17 & 18 Vict. c. 60, s. 1; superseding an earlier Act of William IV. to the same effect. See Fisher’s Digest, Distress, s. t. “Pound and Poundage.”

See p. 157, above.

The justification or right, whichever it be, does not apply where there is only a limited dedication of a way, subject to the right of the owner of the soil to do acts, such as ploughing, which make it impassable or inconvenient at certain times: Arnold v. Holbrook (1873) L. R. 8 Q. B. 96, 42 L. J. Q. B. 80.

Cp. Littleton J. in Y. B. 9 Ed. IV. 35; “If a man by negligence suffer his house to burn, I who am his neighbour may break down the house to avoid the danger to me, for if I let the house stand, it may burn so that I cannot quench the fire afterwards.”

21 Hen. VII. 27, pl. 5 (but the case seems really to belong to Hilary term of the next year, see S. C., Keilw. 88 a; Frowike was still Chief Justice of Common Pleas in Trinity term 21 Hen. VII., ib. 86 b, pl. 19; he died in the following vacation, and Rede was appointed in his stead, ib. 85 b, where for Mich. 22 Hen. VII. we should obviously read 21); cp. 37 Hen. VI. 37, pl. 26; 6 Ed. IV. 8, pl. 18, which seems to extend the justification to entry to retake goods which have come on another’s land by inevitable accident; see Story, Bailments, § 83 a, note.

Selby v. Nettlefold (1873) L. R. 9 Ch. 111, 43 L. J. Ch. 359.

Paul v. Summerhayes (1878) 4 Q. B. D. 9, 48 L. J. M. C. 33.

P. 332, above.

21 Ed. IV. 76 b, pl. 9.

This is in respect of the public character of the innkeeper’s employment.

The liability of a distrainor for rent justly due, in respect of any subsequent irregularity, was reduced to the real amount of damage by 11 Geo. II. c. 19, s. 19: but this does not apply to a case where the distress was wholly unlawful: Attack v. Bramwell (1863) 3 B. & S. 520, 32 L. J. Q. B. 146. Distrainors for damage feasant are still under the common law.

The Six Carpenters’ Case, 8 Co. Rep. 146 a, b.

Cp. Pollock and Wright on Possession, 144, 201.

11 Hen. IV. 75, pl. 16.

Oxley v. Watts (1785) 1 T. R. 12, 1 R. R. 133.

Ash v. Dawnay (1852) 8 Ex. 237, 22 L. J. Ex. 59, sed qu. if according to the old authorities, see Pollock and Wright on Possession, 82.

Six Carpenters’ Case, note (b).

West v. Nibbs (1847) 4 C. B. 172, 17 L. J. C. P. 150.

Littleton in 33 Hen. VI. 27, pl. 12.

West v. Nibbs, 4 C. B. at p. 184, per Wilde C. J.

Wilde C. J. l. c., Littleton ubi sup.

Vaspor v. Edwards, 12 Mod. 660, per Holt C. J.

See Bowyer v. Cook (1847) 4 C. B. 236, 16 L. J. C. P. 177; Reynolds v. Edwards (1794) 6 T. R. 11, even where the defendant had intended and endeavoured to avoid trespassing; but this was doubted by Pollock C. B. in Swinfen v. Bacon (1860) 6 H. & N. 184, 188, 30 L. J. Ex. 33, 36.

County Courts Act, 1888, s. 116 (substituted for like provisions of the repealed Acts of 1867 and 1882); see “The Annual Practice,” 1895, p. 188 sqq.

42 & 43 Vict. c. 59.

F. W. Maitland, “Justice and Police,” p. 13.

At all events the threat of spring-guns, still not quite unknown, can do the occupier no good, for to set spring-guns is itself an offence.

Lockhart’s Life of Scott, vii. 317, ed. 1839, ex relatione Basil Hall.

Goodson v. Richardson (1874) L. R. 9 Ch. 221, 43 L. J. Ch. 790.

Cooper v. Crabtree (1882) 20 Ch. Div. 589, 51 L. J. Ch. 585. In Allen v. Martin (1875) 20 Eq. 462, the plaintiffs were in possession of part of the land affected.

See L. R. 9 Ch. 224, 20 Ch. Div. 592.

Brown v. Notley (1848) 3 Ex. 221, 18 L. J. Ex. 39; Pilgrim v. Southampton, &c. R. Co. (1849) 8 C. B. 25, 18 L. J. C. P. 330.

There was formerly a mandatory writ for the abatement of public nuisances in cities and corporate towns and boroughs. See the curious precedent in F. N. B. 185 D. Apparently the Queen’s Bench Division still has in theory jurisdiction to grant such writs (as distinct from the common judgment on an indictment); see Russell on Crimes, i. 440.

Criminal Code (Indictable Offences) Bill, 1879 (as amended in Committee), s. 150; cp. Stephen, Digest of Criminal Law, art. 176, and illustrations thereto, and the Indian Penal Code, s. 268.

R. v. Train (1862) 2 B. & S. 640, 31 L. J. M. C. 169. The tramways now in operation in many cities and towns have been made under statutory authority.

Turner v. Ringwood Highway Board (1870) 9 Eq. 418. Compare the similar doctrine as to obstruction of lights, infra.

“Particular damage” and “special damage” are used indifferently in the authorities; the former seems preferable, for “special damage,” as we have seen, has another technical meaning in the law of defamation.

Y. B. 27 Hen. VIII. 27, pl. 10. Action for stopping a highway, whereby it seems the plaintiff was deprived of the use of his own private way abutting thereon (the statement is rather obscure): per Fitzherbert, a man shall have his action for a public nuisance if he is more incommoded than others. “If one make a ditch across the high road, and I come riding along the road at night, and I and my horse are thrown in the ditch so that I have thereby great damage and annoyance, I shall have my action against him who made this ditch, because I am more damaged than any other man.” Held that sufficient particular damage was laid.

Rose v. Miles (1815) 4 M. & S. 101, 16 R. R. 405, and in Bigelow L. C. 460.

Winterbottom v. Lord Derby (1867) L. R. 2 Ex. 316, 322, 36 L. J. Ex. 194.

Ricket v. Metrop. R. Co. (1867) L. R. 2 H. L. at pp. 188, 199. See the comments of Willes J. in Beckett v. Midland R. Co. L. R. 3 C. P. at p. 100, where Wilkes v. Hungerford Market Co. (1835) 2 Bing. N. C. 281 is treated as overruled by the remarks of Lord Chelmsford and Lord Cranworth. Probably this would not be accepted in other jurisdictions where the common law is received. In Massachusetts, at least, Wilkes v. Hungerford Market Co. was adopted by the Supreme Court in a very full and careful judgment: Stetson v. Faxon (1837) 19 Pick. 147.

Fritz v. Hobson (1880) 14 Ch. D. 542, 49 L. J. Ch. 321; Barber v. Penley, ’93, 2 Ch. 447, 62 L. J. Ch. 623, 3 R. 489.

In Fritz v. Hobson (last note) Fry J. did not lay down any general proposition. How far the principle of Lyon v. Fishmongers’ Company (1876) 1 App. Ca. 662, 46 L. J. Ch. 68, is really consistent with Ricket v. Metrop. R. Co. is a problem that can be finally solved only by the House of Lords itself. According to Lyon v. Fishmongers’ Company it should seem that blocking the access to a street is (if not justified) a violation of the distinct private right of every occupier in the street: and such rights are not the less private and distinct because they may be many; see Harrop v. Hirst (1868) L. R. 4 Ex. 43, 38 L. J. Ex. 1. In this view it is difficult to see that loss of custom is otherwise than a natural and probable consequence of the wrong. And cp. the case in 27 Hen. VIII. cited above, p. 361. In Ricket’s ca. Lord Westbury strongly dissented from the majority of the Lords present; L. R. 2 H. L. at p. 200.

Benjamin v. Storr (1874) L. R. 9 C. P. 400, 43 L. J. C. P. 162. Compare further, as to damage from unreasonable user of a highway, Harris v. Mobbs (1878) 3 Ex. D. 268; Wilkins v. Day (1883) 12 Q. B. D. 110.

F. N. B. “Writ of Assize of Nuisance,” 183 I. sqq.

See per Jessel M. R. in Jones v. Chappell (1875) 20 Eq. at p. 543.

Comm. iii. 216.

F. N. B. 184 D.; Penruddock’s ca. 5 Co. Rep. 100b; Fay v. Prentice (1845) 1 C. B. 829, 14 L. J. C. P. 298.

Best J. in Earl of Lonsdale v. Nelson (1823) 2 B. & C. 302, 311.

Fay v. Prentice, note (q), where the Court was astute to support the declaration after verdict.

Baten’s ca. 9 Co. Rep. 53 b.

F. N. B. 185 B.

Otherwise as to public ways; see Turner v. Ringwood Highway Board (1870) 9 Eq. 418.

Harrop v. Hirst (1868) L. R. 4 Ex. 43, 38 L. J. Ex. 1.

Harrison v. Southwark & Vauxhall Water Co., ’91, 2 Ch. 409, 60 L. J. Ch. 630.

As to the construction of “nuisance” in a covenant, which it seems need not be confined to tortious nuisance, see Tod-Heatly v. Benham (1888) 40 Ch. Div. 80, 58 L. J. Ch. 83.

Walter v. Selfe, 4 De G. & Sm. 315, 321, 322, 20 L. J. Ch. 433 (Knight-Bruce V.-C. 1851); Crump v. Lambert (1867) 3 Eq. 409.

Salvin v. North Brancepeth Coal Co. (1874) L. R. 9 Ch. 705, 44 L. J. Ch. 149; see judgment of James L. J. L. R. 9 Ch. at pp. 709, 710.

St. Helen’s Smelting Co. v. Tipping (1865) 11 H. L. C. 642, 35 L. J. Q. B. 66; Sturges v. Bridgman (1879) 11 Ch. Div. at p. 865.

Walter v. Selfe, note (z).

Crossley v. Lightowler (1867) L. R. 2 Ch. 478, 36 L. J. Ch. 584. The same point was (among others) decided many years earlier (1849) in Wood v. Waud, 3 Ex. 748, 18 L. J. Ex. 305.

Blackstone ii. 403.

E. g. St. Helen’s Smelting Co. v. Tipping (1865) 11 H. L. C. 642, 35 L. J. Q. B. 66.

Tipping v. St. Helen’s Smelting Co. (1865) 1 Ch. 66, a suit for injunction on the same facts; Fleming v. Hislop (1886) 11 App. Ca. (Sc.) 686, 688, 697.

Sturges v. Bridgman (1879) 11 Ch. Div. 852, 48 L. J. Ch. 875.

Aldred’s ca. 9 Co. Rep. 59 a.

Jones v. Powell, Palm. 539, approved and explained by Ex. Ch. in Bamford v. Turnley (1862) 3 B. & S. 66, 31 L. J. Q. B. 286. As to “convenient” see next paragraph.

Aldred’s ca. note (i) Cp. Broder v. Saillard (1876) 2 Ch. D. 692, 701 (Jessel M. R.), 45 L. J. Ch. 414, followed and perhaps extended in Reinhardt v. Mentasti (1889) 42 Ch. D. 685, 58 L. J. Ch. 787.

Salvin v. North Brancepeth Coal Co. (1874) L. R. 9 Ch. 705, 44 L. J. Ch. 149.

Robinson v. Kilvert (1889) 41 Ch. Div. 88, 58 L. J. Ch. 392. The ordinary enjoyment of life, however, seems to include the maintenance of a due temperature in one’s wine cellar: Reinhardt v. Mentasti (1889) 42 Ch. D. 685, note (k) above.

St. Helen’s Smelting Co. v. Tipping (1865) 11 H. L. C. 642, 35 L. J. Q. B. 66, Bigelow L. C. 454; Bamford v. Turnley (1862) Ex. Ch. 3 B. & S. 66, 31 L. J. Q. B. 286; Carey v. Ledbitter (1862-3) 13 C. B. N. S. 470, 32 L. J. C. P. 104. These authorities overrule Hole v. Barlow (1858) 4 C. B. N. S. 334, 27 L. J. C. P. 207; see Shotts Iron Co. v. Inglis (1882) 7 App. Ca. Sc. at p. 528.

Romilly M. R., Crump v. Lambert (1867) 3 Eq. at p. 412.

Soltau v. De Held (1851) 2 Sim. N. S. 133. The bells belonged to a Roman Catholic church; the judgment points out (at p. 160) that such a building is not a church in the eye of the law, and cannot claim the same privileges as a parish church in respect of bell-ringing.

Inchbald v. Barrington (1869) L. R. 4 Ch. 388: the circus was eighty-five yards from the plaintiff’s house, and “throughout the performance there was music, including a trombone and other wind instruments and a violoncello, and great noise, with shouting and cracking of whips.”

Walker v. Brewster (1867) 5 Eq. 24, 37 L. J. Ch. 33. It was not decided whether the noise would alone have been a nuisance, but Wickens V.-C. strongly inclined to think it would, see at p. 34.

Ball v. Ray (1873) L. R. 8 Ch. 467; Broder v. Saillard (1876) 2 Ch. D. 692, 45 L. J. Ch. 414.

Lord Selborne L. C., L. R. 8 Ch. at p. 469.

Notes to Mellor v. Spateman, 1 Wms. Saund. 626.

Harrop v. Hirst (1868) L. R. 4 Ex. 43, 38 L. J. Ex. 1.

1 App. Ca. 662.

Fritz v. Hobson (1880) 14 Ch. D. 542, 49 L. J. Ch. 321, supra, p. 363.

Thorpe v. Brumfitt (1873) L. R. 8 Ch. 650, 656, per James L. J., followed by Chitty J. in Lambton v. Mellish, ’94, 3 Ch. 163 (a case of nuisance by noise).

City of London Brewery Co. v. Tennant (1873) L. R. 9 Ch. at p. 221; Webb v. Bird (1862) Ex. Ch. 13 C. B. N. S. 841, 31 L. J. C. P. 335; Bryant v. Lefever (1879) 4 C. P. Div. 172, especially per Cotton L. J. at p. 180, 48 L. J. Ch. 380; Harris v. De Pinna (1886) 33 Ch. Div. 238, per Chitty J. at p. 250, and Cotton L. J. at p. 259. A personal right to access of air can of course be created as between parties, if they choose, by way of covenant.

Notwithstanding the doubts expressed by Littledale J. in Moore v. Rawson (1824) 3 B. & C. at p. 340: see per Lord Selborne, Dalton v. Angus (1881) 6 App. Ca. at p. 794, and Lord Blackburn, ib. 823, and the judgments and opinions in that case passim as to the peculiar character of negative easements.

Kelk v. Pearson (1871) L. R. 6 Ch. at pp. 811, 813, cf. 9 Ch. 219.

Aynsley v. Glover (1875) L. R. 10 Ch. 283, 44 L. J. Ch. 523. Since the Prescription Act, however, the formerly accustomed method of claiming under the fiction of a lost grant appears to be obsolete.

See Potts v. Smith (1868) L. R. 6 Eq. 311, 318, 38 L. J. Ch. 58.

Kelk v. Pearson (1871) L. R. 6 Ch. 809, 811; City of London Brewery Co. v. Tennant (1873) L. R. 9 Ch. at p. 216, 43 L. J. Ch. 457.

Yates v. Jack (1866) L. R. 1 Ch. 295. Lanfranchi v. Mackenzie, L. R. 4 Eq. 421, 36 L. J. Ch. 518 (1867, before Malins, V.-C.) seems to have been decided, on the whole, on the ground that there was not any material diminution. So far as it suggests that there is a distinction in law between ordinary and extraordinary amounts of light, or that a plaintiff claiming what is called an extraordinary amount ought to show that the defendant had notice of the nature of his business, it cannot be accepted as authority. Cp. Moore v. Hall (1878) 3 Q. B. D. 178, 47 L. J. Q. B. 334; Dicker v. Popham (1890) 63 L. T. 379.

25 & 26 Vict. c. 102, s. 85.

Parker v. First Avenue Hotel Co. (1883) 24 Ch. Div. 282; Ecclesiastical Commissioners v. Kino (1880) 14 Ch. Div. 213, 49 L. J. Ch. 529.

Tapling v. Jones (1865) 11 H. L. C. 290, 34 L. J. C. P. 342; Aynsley v. Glover (1874-5) 18 Eq. 544, 43 L. J. Ch. 777, L. R. 10 Ch. 283, 44 L. J. Ch. 523; Ecclesiastical Commissioners v. Kino (1880) 14 Ch. Div. 213; Greenwood v. Hornsey (1886) 33 Ch. D. 471, 55 L. J. Ch. 917.

Newson v. Pender (1884) 27 Ch. Div. 43, 61. It is not necessary that the “structural identity” of the old windows should be preserved; the right is to light as measured by the ancient apertures, but not merely as incident to certain defined apertures in a certain place: Scott v. Pape (1886) 31 Ch. Div. 554, 55 L. J. Ch. 426; National Provincial Plate Glass Insurance Co. v. Prudential Assurance Co. (1877) 6 Ch. D. 757, 46 L. J. Ch. 871. But there must at all events be a definite mode of access; Harris v. De Pinna (1886) 33 Ch. Div. 238, 56 L. J. Ch. 344.

The alteration or rebuilding must be continuous enough to show that the right is not abandoned; see Moore v. Rawson (1824) 3 B. & C. 322. All the local circumstances will be considered; Bullers v. Dickinson (1885) 29 Ch. D. 155, 54 L. J. Ch. 776. There must be some specific identification of the old light as coincident with the new: Pendarves v. Monro, ’92, 1 Ch. 611; 61 L. J. Ch. 494.

Staight v. Burn (1869) L. R. 5 Ch. per Giffard L. J. at p. 167.

Presland v. Bingham (1889) 41 Ch. Div. 268.

Tapling v. Jones (1865) 11 H. L. C. 290, 34 L. J. C. P. 342.

Blackst. Comm. iii. 218.

Smith v. Earl Brownlow (1869) 9 Eq. 241 (the case of Berkhamstead Common); Williams on Rights of Common, 135.

Pulling down the house without notice while there are people in it is a trespass: Perry v. Fitzhowe (1845) 8 Q. B. 757, 15 L. J. Q. B. 239; Jones v. Jones (1862) 1 H. & C. 1, 31 L. J. Ex. 506; following Perry v. Fitzhowe with some doubt. The case of a man pulling down buildings wrongfully erected on his own land is different; ib.; Burling v. Read (1850) 11 Q. B. 904, 19 L. J. Q. B. 291.

Davies v. Williams (1851) 16 Q. B. 546, 20 L. J. Q. B. 330; cp. Lane v. Capsey, ’91, 3 Ch. 411.

Norris v. Baker, 1 Rolle’s Rep. 393, per Croke; Lonsdale v. Nelson, 2 B. & C. 311, per Best.

Lemmon v. Webb, 7 R. July, 111, ’94, 3 Ch. 1. The overhanging of branches is not an actual trespass, per Lindley L. J., 7 R. July, at p. 114, ’94, 3 Ch. at p. 11. It is a wise precaution to give notice, per Lopes and Kay L. JJ. The decision of the C. A. was affirmed in H. L., Nov. 27, 1894.

This has always been understood to be the law, and seems to follow a fortiori from the doctrine of Perry v. Fitzhowe, n. (r), last page.

Per James L. J., Commissioners of Sewers v. Glasse (1872) L. R. 7 Ch. at p. 464.

Bayley J. in Arlett v. Ellis (1827) 7 B. & C. 346, 362, and earlier authorities there cited. The first is 15 Hen. VII. 10, pl. 18. There is a diversity where the fence preventing access to the common is not on the common itself: ibid.

Best J. in Earl of Lonsdale v. Nelson (1823) 2 B. & C. at p. 311.

Greenslade v. Halliday (1830) 6 Bing. 379.

Roberts v. Rose (1865) Ex. Ch. L. R. 1 Ex. 82, 89.

F. N. B. 124 H., 183 I.; Baten’s ca. 9 Co. Rep. 55 a, Blackst. Comm. iii. 221.

See note (A) to Penruddock’s ca. 5 Co. Rep. 100 b, in ed. Thomas & Fraser, 1826.

Blackst. Comm. iii. 220.

Rules of the Supreme Court, 1883, Ord. 36, r. 58 (no. 482). The like power had already been exercised by the Court (see Fritz v. Hobson (1880) 14 Ch. D. 542, 557) when damages were given in addition to or in substitution for an injunction under Lord Cairns’ Act, 21 & 22 Vict. c. 27. This Act is now repealed by the Statute Law Revision and Civil Procedure Act, 1883, 46 & 47 Vict. c. 49, but the power conferred by it still exists, and is applicable in such actions as formerly would have been Chancery suits for an injunction; and the result may be to dispense with statutory requirements as to notice of action, &c. which would not have applied to such suits: Chapman v. Auckland Union (1889) 23 Q. B. Div. 294, 299, 300, 58 L. J. Q. B. 504. The Act did not confer any power to give damages where no actionable wrong had been done, e. g., in a case of merely threatened injury: Dreyfus v. Peruvian Guano Co. (1889) 43 Ch. Div. 316, 333, 342.

E. g. Kelk v. Pearson (1871) L. R. 6 Ch. 809.

The form of order does not go to prohibit the carrying on of such and such operations absolutely, but “so as to cause a nuisance to the plaintiff,” or like words: see Lingwood v. Stowmarket Co. (1865) 1 Eq. 77, 336, and other precedents in Seton, Pt. II. ch. 5, s. 5; cp. Fleming v. Hislop (1886) 11 App. Ca. (Sc.) 686.

Even a mandatory injunction may be granted in an extreme case, at an interlocutory stage: where, after notice of motion and before the hearing, the defendant had rapidly run up the wall complained of, he was ordered to pull it down without regard to the general merits: Daniel v. Ferguson, ’91, 2 Ch. 27, C. A.

Thus where the complaint was of special damage or danger from something alleged to be a public nuisance, an interlocutory injunction has been granted on the terms of the plaintiff bringing an indictment; Hepburn v. Lordan (1865) 2 H. & M. 345, 352, 34 L. J. Ch. 293.

Cooke v. Forbes, 5 Eq. 166, 173 (Page Wood V.-C. 1867); A.-G. v. Sheffield, &c. Co. (next note but one).

Page Wood L. J., L. R 4 Ch. at p. 81.

A.-G. v. Sheffield Gas Consumers’ Co. (1853) 3 D. M. G. 304, 22 L. J. Ch. 811 (breaking up streets to lay gas pipes), followed by A.-G. v. Cambridge Consumers’ Gas Co. (1868) L. R. 4 Ch. 71, 38 L. J. Ch. 94.

Cooke v. Forbes (1867) 5 Eq. 166 (escape of fumes from works where the precautions used were shown to be as a rule sufficient).

Gaunt v. Fynney (1872) L. R. 8 Ch. 8, 42 L. J. Ch. 122 (case of nuisance from noise broke down, slight obstruction to ancient light held no ground for injunction).

Martin v. Price, ’94, 1 Ch. 276, 7 R. Mar. 70, C. A.

See the cases reviewed by Pearson J., Fletcher v. Bealey (1885) 28 Ch. D. 688, 54 L. J. Ch. 424, and see A.-G. v. Corporation of Manchester, ’93, 2 Ch. 87, 62 L. J. Ch. 459, 3 R. 427.

28 Ch. D. at p. 698. A premature action of this kind may be dismissed without prejudice to future proceedings in the event of actual nuisance or imminent danger: ib. 704.

Goldsmid v. Tunbridge Wells Improvement Commrs. (1866) L. R. 1 Ch. 349, 354, 35 L. J. Ch. 382.

11 H. E. C. 642 (1865).

James L. J., Salvin v. North Brancepeth Coal Co. (1874) L. R. 9 Ch. 705, at p. 708.

Clowes v. Staffordshire Potteries Waterworks Co. (1872) L. R. 8 Ch. 125, 142, 42 L. J. Ch. 107; cp. Pennington v. Brinsop Hall Coal Co. (1877) 5 Ch. D. 769, 46 L. J. Ch. 773.

A.-G. v. Colney Hatch Lunatic Asylum (1868) L. R. 4 Ch. 146.

See Dicey on Parties, 340.

Jones v. Chappell (1875) 20 Eq. 539, 44 L. J. Ch. 658, which also discredits the supposition that a weekly tenant cannot sue.

Mott v. Shoolbred (1875) 20 Eq. 22, 44 L. J. Ch. 384.

Simpson v. Savage (1856) 1 C. B. N. S. 347, 26 L. J. C. P. 50.

Mumford v. Oxford, &c. R. Co. (1856) 1 H. & N. 34, 25 L. J. Ex. 265.

Per cur. 1 C. B. N. S. at p. 361.

Metropolitan Association v. Petch (1858) 5 C. B. N. S. 504, 27 L. J. C. P. 330.

See Thompson v. Gibson (1841) 7 M. & W. 456.

Todd v. Flight (1860) 9 C. B. N. S. 377, 30 L. J. C. P. 21. The extension of this in Gandy v. Jubber (1864) 5 B. & S. 78, 33 L. J. Q. B. 151, by treating the landlord’s passive continuance of a yearly tenancy as equivalent to a reletting, so as to make him liable for a nuisance created since the original demise, is inconsistent with the later authorities cited below: and in that case a judgment reversing the decision was actually prepared for delivery in the Ex. Ch., but the plaintiff meanwhile agreed to a stet processus on the recommendation of the Court: see 5 B. & S. 485, and the text of the undelivered judgment in 9 B. & S. 15. How far this applies to a weekly tenancy, quære: see Bowen v. Anderson, ’94, 1 Q. B. 164, 10 R. Feb. 247.

Pretty v. Bickmore (1873) L. R. 8 C. P. 401; Gwinnell v. Eamer (1875) L. R. 10 C. P. 658.

Nelson v. Liverpool Brewery Co. (1877) 2 C. P. D. 311, 46 L. J. C. P. 675; cp. Rich v. Basterfield (1847) 4 C. B. 783, 16 L. J. C. P. 273.

Pretty v. Bickmore (1873) L. R. 8 C. P. 401; Gwinnell v. Eamer (1875) L. R. 10 C. P. 658.

White v. Jameson (1874) 18 Eq. 303.

Rich v. Basterfield (1847) 4 C. B. 783, 16 L. J. C. P. 273.

Saxby v. Manchester & Sheffield R. Co. (1869) L. R. 4 C. P. 198, 38 L. J. C. P. 153, where the defendants had given the plaintiff licence to abate the nuisance himself so far as they were concerned.

Rosewell v. Prior (1701) 12 Mod. 635.

Penruddock’s ca. 5 Co. Rep. 101 a.

Those who seek fuller information on the subject of this chapter may find it in Mr. Thomas Beven’s exhaustive and scholarly monograph (“Principles of the Law of Negligence,” London, 1889).

See Note M. to the Indian Penal Code as originally framed by the Commissioners. Yet attempts of this kind have been made in one or two recent Continental proposals for the improvement of criminal law.

Lord Blackburn, 3 App. Ca. at p. 1206.

Cp. per Brett M. R., Heaven v. Pender (1883) 11 Q. B. Div. at p. 507.

This appears to be the substance of the rule intended to be laid down by Brett M. R. in Heaven v. Pender (1883) 11 Q. B. D. at pp. 507—510; his judgment was however understood by the other members of the Court (Cotton and Bowen L.JJ.) as formulating some wider rule to which they could not assent. The case itself comes under the special rules defining the duty of occupiers (see Chap. XII. below). And, so far as the judgment of Brett M. R. purported to exhibit those rules as a simple deduction from the general rule as to negligence, it is submitted that the dissent of the Lords Justices was well founded. And see Beven on Negligence, 63.

Cp. the present writer’s “Principles of Contract,” p. 138, 6th ed., and Prof. Ames’s articles, “The History of Assumpsit,” in Harv. Law. Rev. ii. 1, 53.

F. N. B. 94 D. As to the assumption of special skill being a material element, cp. Shiells v. Blackburne (1789) 2 H. Bl. 158, 2 R. R. 750; where “gross negligence” appears to mean merely actionable negligence.

Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. at p. 784, 25 L. J. Ex. at p. 213; adopted by Brett J. in Smith v. L. & S. W. R. Co. (1870) L. R. 5 C. P. at p. 102.

Brett M. R., 11 Q. B. Div. 508.

As in Vaughan v. Menlove (1837) 3 Bing. N. C. 468, where the defendant, after being warned that his haystack was likely to take fire, said he would chance it (pp. 471, 477).

Compare the Aristotelian use of ὁ φρόνιμος or ὁ σπουδαῖος in determining the standard of moral duty.

Vaughan v. Menlove (1837) 3 Bing. N. C. 468.

This misrepresents the rule of law: not the highest intelligence, but intelligence not below the average prudent man’s, being required.

Tindal C. J., 3 Bing. N. C. at p. 475.

Commonwealth v. Pierce (1884) 138 Mass. 165, 52 Am. Rep. 264, per Holmes J. See too per Bayley J. in Jones v. Bird (1822) 5 B. & A. at pp. 845-6.

Bayley J., 5 B. & A. at p. 846.

See p. 25, above.

Williams J. in Hammack v. White (1862) 11 C. B. N. S. 588, 31 L. J. C. P. 129; Cotton v. Wood (1860) 8 C. B. N. S. 568, 29 L. J. C. P. 333; Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. 41.

Wakelin v. L. & S. W. R. Co., last note.

Erle C. J., Cotton v. Wood, note (r).

Lord Halsbury, 12 App. Ca. at p. 45.

(1860) 8 C. B. N. S. 568, 29 L. J. C. P. 333, note (r) above.

It would be convenient if one could in these running-down cases on land personify the vehicle, like a ship.

Hammack v. White (1862) 11 C. B. N. S. 588, 31 L. J. C. P. 129.

Manzoni v. Douglas (1880) 6 Q. B. D. 145, 50 L. J. Q. B. 289, where it was unsuccessfully attempted to shake the authority of Hammack v. White. The cases relied on for that purpose belong to a special class.

Lindley J., 6 Q. B. D. at p. 153.

E. g. Murphy v. Deane, 101 Mass. 455.

Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. 41, 47, 51, 56 L. J. Q. B. 229, per Lord Watson and Lord Fitzgerald.

In other words (to anticipate part of a special discussion) the obligation does not become greater if we regard the liability as ex delicto instead of ex contractu; but neither does it become less.

Carpue v. London & Brighton R. Co. (1844) 5 Q. B. 747, 751, 13 L. J. Q. B. 138; Skinner v. L. B. & S. C. R. Co. (1850) 5 Ex. 787.

Scott v. London Dock Co., 3 H. & C. 596, 34 L. J. Ex. 220.

That is, not merely by the defendant’s licence, as will be explained later.

3 H. & C. 596, Crompton, Byles, Blackburn, Keating JJ., diss. Erle C. J. and Mellor J.; but no dissenting judgment was delivered, nor does the precise ground of dissent appear.

Crafter v. Metrop. R. Co. (1866) L. R. 1 C. P. 300, 35 L. J. C. P. 132.

This is well put in the judgment in M‘Cully v. Clark (Pennsylvania, 1861) Bigelow L. C. 559.

Gardner v. Michigan Central R. R. (1893) 150 U. S. 349, 361.

Metrop. R. Co. v. Jackson (1877) 3 App. Ca. 193, 47 L. J. C. P. 303.

See Williams v. G. W. R. Co. (1874) L. R. 9 Ex. 157, 43 L. J. Ex. 105, supra, p. 38. Cp. per Lord Halsbury, 12 App. Ca. at p. 43.

L. R. 7 H. L. 12, 43 L. J. Q. B. 185.

L. R. 7 H. L. 213, 43 L. J. Q. B. 151 (1873-4.)

3 App. Ca. 193, 47 L. J. C. P. 303 (1877).

Lord Cairns, at p. 197. Strictly the jurors have to say not whether negligence ought to be inferred, but whether, as reasonable men, they do infer it.

Lord Blackburn, at p. 207. Cp. Ryder v. Wombwell (1868), in Ex. Ch., L. R. 4 Ex. 32, 38 L. J. Ex. 8, which Lord Blackburn goes on to cite with approval.

See pp. 32, 36, above.

Cp. Pounder v. N. E. R. Co., ’92, 1 Q. B. 385, 61 L. J. Q. B. 136 (plaintiff assaulted by persons who had crowded in), and Cobb v. G. W. R. Co. ’93, 1 Q. B. 459, 62 L. J. Q. B. 335, 4 R. 283, C. A.

As in Wanless’s case, L. R. 7 H. L. 12, 43 L. J. Q. B. 185, where the gates (intended primarily for the protection of carriage traffic) were left open when they ought not to have been, so that the plaintiff was thrown off his guard.

Lord Watson, Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. 41, 47, 56 L. J. Q. B. 229.

Bowen L. J., Davey v. L. & S. W. R. Co. (1883) 12 Q. B. Div. at p. 76.

Davey v. L. & S. W. R. Co. (1883) 12 Q. B. Div. 70, 53 L. J. Q. B. 58: a case which perhaps belongs properly to the head of contributory negligence, of which more presently. Only the circumstance of daylight seems to distinguish this from Slatter’s case (next note).

3 App. Ca. 1155. Nearly all the modern cases on “evidence of negligence” were cited in the argument (p. 1161). Observe that the question of the verdict being against the weight of evidence was not open (p. 1162).

The majority consisted of Lord Cairns (who thought the verdict could not have stood if the accident had happened by daylight), Lord Penzance, Lord O’Hagan, Lord Selborne, and Lord Gordon; the minority of Lord Hatherley, Lord Coleridge, and Lord Blackburn. Ellis v. G. W. R. Co. (Ex. Ch. 1874) L. R. 9 C. P. 551, 43 L. J. C. P. 304, does not seem consistent with this decision; there was difference of opinion in that case also.

Cockle v. S. E. R. Co. (1872) Ex. Ch. L. R. 7 C. P. 321, 41 L. J. C. P. 140.

Siner v. G. W. R. Co. (1869) Ex. Ch. L. R. 4 Ex. 117, 38 L. J. Ex. 67.

Bridges v. N. London R. Co. p. 402, above.

Robson v. N. E. R. Co. 2 Q. B. Div. 85, 46 L. J. Q. B. 50; Rose v. N. E. R. Co. 2 Ex. Div. 248, 46 L. J. Ex. 374 (both in 1876).

L. R. 5 C. P. 98, 39 L. J. C. P. 68, in Ex. Ch. 6 C. P. 14, 40 L. J. C. P. 21 (1870). The accident took place in the extraordinarily warm and dry summer of 1868.

See statement of the facts in the report in Ex. Ch. L. R. 6 C. P. at p. 15.

Brett J. dissented in the Common Pleas, and Blackburn J. expressed some doubt in the Ex. Ch. on the ground that the particular damage in question could not have reasonably been anticipated.

Lush J. in Ex. Ch. L. R. 6 C. P. at p. 23.

Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781, 25 L. J. Ex. 212, supra, p. 42.

Crafter v. Metrop. R. Co. (1868) L. R. 1 C. P. 300, 35 L. J. C. P. 132: the plaintiff slipped on the brass “nosing” of the steps (this being the material in common use, whereof the Court took judicial notice “with the common experience which every one has,” per Willes J. at p. 303), and it was suggested that lead would have been a safer material.

P. 400, above.

Blackst. Comm. iv. 192. D. 9. 2, ad. leg. Aquil. 31. In a civil action it would probably be left to the jury whether, on the whole, the work was being done with reasonable care.

Cp. Skelton v. L. & N. W. R. Co. (1867) L. R. 2 C. P. 631, 36 L. J. C. P. 249, decided however on the ground that the accident was wholly due to the man’s own want of care.

In the United States there is some: see Wharton, §§ 307, 310; Cooley on Torts, 683; Beven on Negligence, 8.

See Campbell, 180; Horace Smith, 226; and Wharton, §§ 300 sqq., who gives the same conclusions in a more elaborate form. The use of such phrases as in pari delicto, though not without authority, is likewise confusing and objectionable.

Lord Blackburn, 3 App. Ca. at p. 1207.

Lord Penzance, Radley v. L. & N. W. R. Co. (1876) 1 App. Ca. at p. 759.

The Bernina (1887) 12 P. D. 36, 56 L. J. P. 38; affd. nom. Mills v. Armstrong (1888) 13 App. Ca. 1, 57 L. J. P. 65; see especially the judgment of Lindley L. J., and cp. Little v. Hackett (1886) 116 U. S. 366, 371.

W. Schofield in Harv. Law Rev. iii. 270.

2 C. B. N. S. 740, 5 C. B. N. S. 573, 27 L. J. C. P. 322 (1857-8).

5 C. B. N. S. at p. 585.

Not “could:” see Beven on Negligence, 132.

1 App. Ca. 754, 46 L. J. Ex. 573, reversing the judgment of the Exchequer Chamber, L. R. 10 Ex. 100, and restoring that of the Court of the Exchequer, L. R. 9 Ex. 71 (1874-6).

Bramwell and Amphlett BB.

Blackburn, Mellor, Lush, Grove, Brett, Archibald JJ.; diss. Denman J.

By Lord Penzance, Lord Cairns, Lord Blackburn (thus retracting his opinion in the Ex. Ch.), and Lord Gordon.

Lord Penzance, 1 App. Ca. at p. 760.

Or, as Mr. Wharton puts it, not a cause but a condition. But the contrast of “cause” and “condition” is dangerous to refine upon: the deep waters of philosophy are too near.

Cp. Mr. W. Schofield’s article in Harv. Law Rev. iii. 263.

5 C. B. N. S. 573, 27 L. J. C. P. 322.

10 M. & W. 546, 12 L. J. Ex. 10 (1842).

Parke B., 10 M. & W. at p. 549; cp. his judgment in Bridge v. Grand Junction R. Co. (1838) 3 M. & W. at p. 248.

7 Q. B. 339, 376, 15 L. J. Q. B. 59.

See Harv. Law Rev. iii. 272—276.

11 East 60, 10 R. R. 433 (1809).

Little v. Hackett (1886) 116 U. S. 366, 371; Butterfield v. Forrester, last page.

Radley v. L. & N. W. R. Co.; Davies v. Mann.

Per Lindley L. J., The Bernina, 12 P. D. 58, 89.

Lord Watson (Lord Blackburn agreeing), Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. at pp. 47-49.

Bridge v. Grand Junction R. Co. (1838) 3 M. & W. 248.

See per Lindley L. J., 12 P. D. 89.

3 App. Ca. 1155.

12 M. & W. 546.

1 App. Ca. 754, 46 L. J. Ex. 573.

L. Q. R. v. 87.

Little v. Hackett (1886) 116 U. S. 366; Mills v. Armstrong (1888) 13 App. Ca. 1, overruling Thorogood v. Bryan (1849) 8 C. B. 115, 18 L. J. C. P. 336.

Judgments in Thorogood v. Bryan, see 12 P. D. at pp. 64—67, 13 App. Ca. at pp. 6, 7, 17.

Coltman, Maule, Cresswell, and Vaughan Williams JJ.

Hughes v. Macfie (1863) 2 H. & C. 744, 33 L. J. Ex. 177; and see Clark v. Chambers (1878) 3 Q. B. D. at pp. 330—336, p. 43, above; Dixon v. Bell, 5 M. & S. 198, 17 R. R. 308, p. 458, below.

Clark v. Chambers, last note.

Waite v. N. E. R. Co. (1859) Ex. Ch. E. B. & E. 719, 27 L. J. Q. B. 417, 28 L. J. Q. B. 258. This case is expressly left untouched by Mills v. Armstrong, 13 App. Ca. 1 (see at pp. 10, 19), 57 L. J. P. 65).

This might happen in various ways, by reason of darkness or otherwise.

Singleton v. E. C. R. Co. (1889) 7 C. B. N. S. 287, is a case of this kind, as it was decided not on the fiction of imputing a third person’s negligence to a child, but on the ground (whether rightly taken or not) that there was no evidence of negligence at all.

Mangan v. Atterton (1866) L. R. 1 Ex. 239, 35 L. J. Ex. 161, comes near it. But that case went partly on the ground of the damage being too remote, and since Clark v. Chambers (1878) 3 Q. B. D. 327, 47 L. J. Q. B. 427, supra, p. 43, it is of doubtful authority. For our own part we think it is not law. Cp. Mr. Campbell’s note to Dixon v. Bell, 17 R. R. 308.

Holmes, The Common Law, 128.

Bigelow L. C. 729, and see Horace Smith 241. In Vermont (Robinson v. Cone, 22 Vt. 213, 224, ap. Cooley on Torts, 681) the view maintained in the text is distinctly taken. “We are satisfied that, although a child or idiot or lunatic may to some extent have escaped into the highway, through the fault or negligence of his keeper, and so be improperly there, yet if he is hurt by the negligence of the defendant, he is not precluded from his redress. If one know that such a person is on the highway, or on a railway, he is bound to a proportionate degree of watchfulness, and what would be but ordinary neglect in regard to one whom the defendant supposed a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger.” So, too, Bigelow 730, and Newman v. Phillipsburg Horse Car Co., 52 N. J. 446, Jer. Smith, 2 Sel. Ca. on Torts, 212.

Child v. Hearn (1874) L. R. 9 Ex. 176, 43 L. J. Ex. 100.

P. 422, above.

“Cattle,” held by the Court to include pigs.

That is, pigs of average vigour and obstinacy; see per Bramwell B., whose judgment (pp. 181, 182) is almost a caricature of the general idea of the “reasonable man.” It was alleged, but not found as a fact, that the defendant had previously been warned by some one of his pigs being on the line.

Note in Addison on Torts, 5th ed. 27.

Marsden on Collisions at Sea, ch. 6 (3d ed.), and see an article by the same writer in L. Q. R. ii. 357.

Op. cit. 130.

Writers on maritime law state the rule of the common law to be that when both ships are in fault neither can recover anything. This may have been practically so in the first half of the century, but it is neither a complete nor a correct version of the law laid down in Tuff v. Warman, 5 C. B. N. S. 573, 27 L. J. C. P. 322. As long ago as 1838 it was distinctly pointed out that “there may have been negligence in both parties, and yet the plaintiff may be entitled to recover:” Parke B. in Bridge v. Grand Junction R. Co., 3 M. & W. 244, 248.

S. 25, sub-s. 9. The first intention of the framers of the Act was otherwise. See Marsden, p. 134, 3d ed.

The Bywell Castle (1879) 4 P. Div. 219; The Tasmania (1890) 15 App. Ca. 223, 226, per Lord Herschell; and see other examples collected in Marsden on Collisions at Sea, pp. 4, 5, 3d ed.

N. E. R. Co. v. Wanless (1874) L. R. 7 H. L. at p. 16; cp. Slattery’s ca. (1878) 3 App. Ca. at p. 1193.

Briggs v. Union Street Ry. (1888) 148 Mass. 72, 76.

See Daniel v. Metrop. R. Co. (1871) L. R. 5 H. L. 45, 40 L. J. C. P. 121.

Gee v. Metrop. R. Co. (1873) Ex. Ch. L. R. 8 Q. B. 161, 42 L. J. Q. B. 105. There was some difference of opinion how far the question of contributory negligence in fact was fit to be put to the jury.

This is the principle applied in Adams v. L. & Y. R. Co. (1869) L. R. 4 C. P. 739, 38 L. J. C. P. 277, though (it seems) not rightly in the particular case; see in Gee v. Metrop. R. Co. L. R. 8 Q. B. at pp. 161, 173, 176.

12 Q. B. 439 (1848). The rule was laid down by Lord Ellenborough at nisi prius as early as 1816: Jones v. Boyce, 1 Stark. 493, cited by Montague Smith J., L. R. 4 C. P. at p. 743. The plaintiff was an outside passenger on a coach, and jumped off to avoid what seemed an imminent upset; the coach was however not upset. It was left to the jury whether by the defendant’s fault he “was placed in such a situation as to render what he did a prudent precaution for the purpose of self-preservation.”

Evidence was given by the defendants, but apparently not believed by the jury, that their men expressly warned the plaintiff against the course he took.

See Appendix B. to Smith on Negligence, 2d ed. I agree with Mr. Smith’s observations ad fin., p. 279.

Robson v. N. E. R. Co. (1875-6) L. R. 10 Q. B. 271, 274, 44 L. J. Q. B. 112 (in 2 Q. B. Div. 85, 46 L. J. Q. B. 50); Rose v. N. E. R. Co. (1876) 2 Ex. Div. 248, 46 L. J. Ex. 374.

Contra Bramwell L. J. in Lax v. Corporation of Darlington (1879) 5 Ex. D. at p. 35; but the lastmentioned cases had not been cited.

Filer v. N. Y. Central R. R. Co. (1872) 49 N. Y. (4 Sickels) 47.

63 N. Y. at p. 559.

Burrows v. Erie R. Co. (1876) 63 N. Y. (18 Sickels) 556.

Coulter v. Express Co. (1874) 56 N. Y. (11 Sickels) 585; Twomley v. Central Park R. R. Co. (1878) 69 N. Y. (24 Sickels) 158. Cp. Jones v. Boyce (1816) 1 Stark. 493.

Eckert v. Long Island R. R. Co. (1871) 43 N. Y. 502, 3 Am. Rep. 721 (action by representative of a man killed in getting a child off the railway track in front of a train which was being negligently driven).

E. g. Lord Esher’s judgment in The Bernina, 12 P. Div. at pp. 77—82. Cp. per Lord Herschell in Mills v. Armstrong, 13 App. Ca. at p. 10.

Stimson, American Statute Law, p. 132, § 605.

For a strong example see Kane v. N. Central R. Co. 128 U. S. 91. In Washington &c. R. R. Co. v. McDade (1889) 135 U. S. 554, 564, “counsel for the defendant asked the Court to grant twenty separate prayers for instructions to the jury.”

L. R. 1 Ex. at p. 278, per Willes, Blackburn, Keating, Mellor, Montague Smith, and Lush JJ. For the statements of fact referred to, see at pp. 267—269.

Rylands v. Fletcher (1868) L. R. 3 H. L. 330, 37 L. J. Ex. 161.

Lord Cranworth, at p. 340.

Chasemore v. Richards (1859) 7 H. L. C. 349, 29 L. J. Ex. 81.

See Fletcher v. Smith (1877) 2 App. Ca. 781, 47 L. J. Ex. 4; Humphries v. Cousins (1877) 2 C. P. D. 239, 46 L. J. C. P. 438; Hurdman v. North Eastern R. Co. (1878) 3 C. P. Div. 168, 47 L. J. C. P. 368; and for the distinction as to “natural course of user,” Wilson v. Waddell, H. L. (Sc.) 2 App. Ca. 95. The principle of Rylands v. Fletcher was held applicable to an electric current discharged into the earth in National Telephone Co. v. Baker, ’93, 2 Ch. 186, 62 L. J. Ch. 699, 3 R. 318.

Judicial opinions still differ in the United States. See Bigelow L. C. 497—500. The case has been cited with approval in Massachusetts (Shipley v. Fifty Associates, 106 Mass. 194; Gorham v. Gross, 125 Mass. 232; Mears v. Dole, 135 Mass. 508); but distinctly disallowed in New York: Losee v. Buchanan, 51 N. Y. (6 Sickels) 476.

See Reg. v. Commissioners of Sewers for Essex (1885) 14 Q. B. Div. 561.

L. R. 1 Ex. 277 sqq.

See especially at pp. 285-6. But can an isolated accident, however mischievous in its results, be a nuisance? though its consequences may, as where a branch lopped or blown down from a tree is left lying across a highway.

L. R. 1 Ex. 286-7, 3 H. L. 341.

See The Nitro-glycerine Case (1872) 15 Wall. 524; Brown v. Kendall (1850) 6 Cush. 292; Holmes v. Mather (1875) L. R. 10 Ex. 261, 44 L. J. Ex. 176; Stanley v. Powell, ’91, 1 Q. B. 86, 60 L. J. Q. B. 52.

Martin B., L. R. 6 Ex. at p. 223.

There must be something of this kind. A man is not liable for the loss of a neighbour’s cattle which trespass and eat yew leaves on his land: Ponting v. Noakes, ’94, 2 Q. B. 281, 10 R. July, 283, 63 L. J. Q. B. 549.

Crowhurst v. Amersham Burial Board (1878) 4 Ex. D. 5, 48 L. J. Ex. 109. Wilson v. Newberry (1871) L. R. 7 Q. B. 31, 41 L. J. Q. B. 31, is not inconsistent, for there it was only averred that clippings from the defendants’ yew trees were on the plaintiff’s land; and the clipping might, for all that appeared, have been the act of a stranger.

Firth v. Bowling Iron Co. (1878) 3 C. P. D. 254, 47 L. J. C. P. 358.

The former ground was chiefly relied on in Crowhurst’s case, the latter in Firth’s.

29 Ch. Div. 115 (1885), 54 L. J. Ch. 454.

Act of God=vis maior=θεοῦ βία: see D. 19. 2. locati conducti, 25, § 6. The classical signification of “vis maior” is however wider for some purposes; Nugent v. Smith, 1 C. P. Div. 423, 429, per Cockburn C. J.

Nichols v. Marsland (1875-6) L. R. 10 Ex. 255, 2 Ex. D. 1, 46 L. J. Ex. 174. Note that Lord Bramwell, who in Rylands v. Fletcher took the view that ultimately prevailed, was also a party to this decision. The defendant was an owner of artificial pools, formed by damming a natural stream, into which the water was finally let off by a system of weirs. The rainfall accompanying an extremely violent thunderstorm broke the embankments, and the rush of water down the stream carried away four county bridges, in respect of which damage the action was brought.

See Reg. v. Commissioners of Sewers for Essex (1885) in judgment of Q. B. D., 14 Q. B. D. at p. 574.

“Whenever the world grows wiser it convicts those that came before of negligence.” Bramwell B., L. R. 6 Ex. at p. 222. But juries do not, unless the defendant is a railway company.

Box v. Jubb (1879) 4 Ex. D. 76, 48 L. J. Ex. 417. Wilson v. Newberry (1871) L. R. 7 Q. B. 31, 41 L. J. Q. B. 31, is really a decision on the same point.

Carstairs v. Taylor (1871) L. R. 6 Ex. 217, 40 L. J. Ex. 29; cp. Madras R. Co. v. Zemindar of Carvatenagaram, L. R. 1 Ind. App. 364.

Carstairs v. Taylor, last note, but the other ground seems the principal one. The plaintiff was the defendant’s tenant; the defendant occupied the upper part of the house. A rat gnawed a hole in a rain-water box maintained by the defendant, and water escaped through it and damaged the plaintiff’s goods on the ground floor. Questions as to the relation of particular kinds of damage to conventional exceptions in contracts for safe carriage or custody are of course on a different footing. See as to rats in a ship Hamilton v. Pandorf (1887) 12 App. Ca. 518, 57 L. J. Q. B. 24.

Madras R. Co. v. Zemindar of Carvatenagaram, L. R. 1 Ind. App. 364; S. C., 14 Ben. L. R. 209.

See per Holloway J. in the Court below, 6 Mad. H. C. at p. 184.

Dunn v. Birmingham Canal Co. (1872) Ex. Ch. L. R. 8 Q. B. 42, 42 L. J. Q. B. 34. The principle was hardly disputed, the point which caused some difficulty being whether the defendants were bound to exercise for the plaintiff’s benefit certain optional powers given by the same statute.

Vaughan v. Taff Vale R. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247; cp. L. R. 4 H. L. 201, 202; Fremantle v. L. & N. W. R. Co. (1861) 10 C. B. N. S. 89, 31 L. J. C. P. 12.

The escape of sparks has been held to be prima facie evidence of negligence; Piggott v. E. C. R. Co. (1846) 3 C. B. 229, 15 L. J. C. P. 235; cp. per Blackburn J. in Vaughan v. Taff Vale R. Co.

Smith v. L. & S. W. R. Co. (1870) Ex. Ch. L. R. 6 C. P. 14, seems to imply the contrary view; but Piggott v. E. C. R. Co. was not cited. It may be that in the course of a generation the presumption of negligence has been found no longer tenable, experience having shown the occasional escape of sparks to be consistent with all practicable care. Such a reaction would hardly have found favour, however, with the Court which decided Fletcher v. Rylands in the Exchequer Chamber.

G. W. R. Co. of Canada v. Braid (1863) 1 Moo. P. C. N. S. 101. There were some minor points on the evidence (whether one of the sufferers was not travelling at his own risk &c.), which were overruled or regarded as not open, and are therefore not noticed in the text.

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

Ellis v. Loftus Iron Co. (1874) L. R. 10 C. P. 10, 44 L. J. C. P. 24, a stronger case than Lee v. Riley (1865) 18 C. B. N. S. 722, 34 L. J. C. P. 212, there cited and followed.

Brett J., L. R. 10 C. P. at p. 13; cp. the remarks on the general law in Smith v. Cook (1875) 1 Q. B. D. 79, 45 L. J. Q. B. 122 (itself a case of contract).

Comm. iii. 211.

13 C. B. N. S. 430, 32 L. J. C. P. 89.

Goodwin v. Cheveley (1859) 4 H. & N. 631, 28 L. J. Ex. 298. A contrary opinion was expressed by Littleton, 20 Edw. IV. 11, pl. 10, cited in Read v. Edwards, 17 C. B. N. S. 245, 34 L. J. C. P. at p. 32.

Tillett v. Ward (1882) 10 Q. B. D. 17, 52 L. J. Q. B. 61, where an ox being driven through a town strayed into a shop.

So held as early as 1441-2: Y. B. 19 H. VI. 33, pl. 68.

Read v. Edwards (1864) 17 C. B. N. S. 245, 34 L. J. C. P. 31; and see Millen v. Fawdry, Latch, 119. In Teape v. Swan, 51 L. T. 263, the defendant was held not liable for injury received by the plaintiff from the defendant’s dog jumping over a wall and falling on him. Here it would seem the damage was not of a kind that could be reasonably foreseen, whether there were a nominal trespass or not. The plaintiff could not have recovered unless the law treated a dog as an absolutely dangerous animal.

As a monkey: May v. Burdett (1846) 9 Q. B. 101, and 1 Hale, P. C. 430, there cited. An elephant is a dangerous animal in England: Filburn v. Aquarium Co. (1890) 25 Q. B. Div. 258, 59 L. J. Q. B. 471.

Worth v. Gilling (1866) L. R. 2 C. P. 1. As to what is sufficient notice to the defendant through his servants, Baldwin v. Casella (1872) L. R. 7 Ex. 325, 41 L. J. Ex. 167; Applebee v. Percy (1874) L. R. 9 C. P. 647, 43 L. J. C. P. 365.

28 & 29 Vict. c. 60 (ad 1865). There is a similar Act for Scotland, 26 & 27 Vict. c. 100. See Campbell on Negligence, 2nd ed. pp. 53—55. Further protection against mischievous or masterless dogs is given by 34 & 35 Vict. c. 56, a statute of public police regulations outside the scope of this work. The Scottish comment on our old common law rule—“every dog is entitled to one worry”—is almost too familiar for quotation.

Wright v. Pearson (1869) L. R. 4 Q. B. 582.

Child v. Hearn (1874) L. R. 9 Ex. 176, 43 L. J. Ex. 100 (on a different Act).

Y. B. 2 Hen. IV. 18, pl. 5. This may be founded on ancient Germanic custom: cp. Ll. Langob. cc. 147, 148 (ad 643), where a man who carries fire more than nine feet from the hearth is said to do so at his peril.

Blackstone (i. 431) seems to assume negligence as a condition of liability.

Tubervil or Tuberville v. Stamp, 1 Salk. 13, s. c. 1 Ld. Raym. 264.

14 Geo. III. c. 78, s. 86, as interpreted in Filliter v. Phippard (1847) 11 Q. B. 347, 17 L. J. Q. B. 89. There was an earlier statute of Anne to a like effect; 1 Blackst. Comm. 431; and see per Cur. in Filliter v. Phippard. It would seem that even at common law the defendant would not be liable unless he knowingly lighted or kept some fire to begin with; for otherwise how could it be described as ignis suus?

Black v. Christchurch Finance Co. (J. C. from N. Z.), ’94, A. C. 48, 63 L. J. P. C. 32.

Jones v. Festiniog R. Co. (1868) L. R. 3 Q. B. 733, 37 L. J. Q. B. 214. Here diligence was proved, but the company held nevertheless liable. The rule was expressly stated to be an application of the wider principle of Rylands v. Fletcher; see per Blackburn J. at p. 736.

Powell v. Fall (1880) 5 Q. B. Div. 597, 49 L. J. Q. B. 428. The use of traction engines on highways is regulated by statute, but not authorized in the sense of diminishing the owner’s liability for nuisance or otherwise; see the sections of the Locomotive Acts, 1861 and 1865, in the judgment of Mellor J. at p. 598. The dictum of Bramwell L. J. at p. 601, that Vaughan v. Taff Vale R. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247, p. 439, above, was wrongly decided, is extra-judicial. That case was not only itself decided by a Court of co-ordinate authority, but has been approved in the House of Lords; Hammersmith R. Co. v. Brand (1869) L. R. 4 H. L. at p. 202; and see the opinion of Blackburn J. at p. 197.

Sadler v. South Staffordshire, &c. Tramways Co. (1889) 23 Q. B. Div. 17, 58 L. J. Q. B. 421 (car ran off line through a defect in the points: the line did not belong to the defendant company, who had running powers over it).

It appears to be held everywhere that unless the original act is in itself unlawful, the gist of the action is negligence; see Cooley on Torts, 589-594.

Losee v. Buchanan (1873) 51 N. Y. 476; the owner of a steam-boiler was held not liable, independently of negligence, for an explosion which threw it into the plaintiff’s buildings. For the previous authorities as to fire, uniformly holding that in order to succeed the plaintiff must prove negligence, see at pp. 487-8. Rylands v. Fletcher is disapproved as being in conflict with the current of American authority.

Dixon v. Bell (1816) 5 M. & S. 198, 17 R. R. 308, and in Bigelow L. C. 568. It might have been said that sending an incompetent person to fetch a loaded gun was evidence of negligence (see the first count of the declaration); but that is not the ground taken by the Court (Lord Ellenborough C. J. and Bayley J.). Cp King v. Pollock (1874) 2 R. 42, a somewhat similar case in Scotland where the defendant was held not liable. But in Scotland culpable negligence has to be distinctly found.

Farrant v. Barnes (1862) 11 C. B. N. S. 553, 31 L. J. C. P. 137. The duty seems to be antecedent, not incident, to the contract of carriage.

Lyell v. Ganga Dai, I. L. R. 1 All. 60.

Boston & Albany R. R. Co. v. Shanly (1871) 107 Mass. 568; (“dualin,” a nitro-glycerine compound, and exploders, had been ordered by one customer of two separate makers, and by them separately consigned to the railway company without notice of their character: held on demurrer that both manufacturers were rightly sued in one action by the company).

See Smith v. Boston Gas Light Co., 129 Mass. 318.

Parry v. Smith (1879) 4 C. P. D. 325, 48 L. J. C. P. 731 (Lopes J.). Negligence was found as a fact.

Thomas v. Winchester (1852) 6 N. Y. 397, Bigelow L. C. 602. The decision seems to be generally followed in America.

The jury found that there was not any negligence on the part of the intermediate dealers; the Court, however, were of opinion that this was immaterial.

See per Brett M. R., Heaven v. Pender (1883) 11 Q. B. Div. at p. 514, in a judgment which itself endeavours to lay down a much wider rule.

George v. Skivington (1869) L. R. 5 Ex. 1, 38 L. J. Ex. 8.

Dixon v. Bell (1816) 5 M. & S. 198, 17 R. R. 308, Bigelow L. C. 568 (supra, p. 455), has never been disapproved that we know of, but has not been so actively followed that the Court of Appeal need be precluded from free discussion of the principle involved. In Langridge v. Levy (1837) 2 M. & W. at p. 530, the Court was somewhat astute to avoid discussing that principle, and declined to commit itself. Dixon v. Bell is cited by Parke B. as a strong case, and apparently with hesitating acceptance, in Longmeid v. Holliday (1851) 6 Ex. 761, 20 L. J. Ex. 430.

20 L. J. Ex. at p. 433.

Per Montague Smith J. in Ex. Ch., Francis v. Cockrell (1870) Ex. Ch. L. R. 5 Q. B. 501, 513, 39 L. J. Q. B. 291. Other cases well showing this point are Pickard v. Smith, 10 C. B. N. S. 470; John v. Bacon (1870) L. R. 5 C. P. 437, 39 L. J. C. P. 365.

Sullivan v. Waters, 14 Ir. C. L. R. 460. See, however, Quarman v. Burnett (1840) 6 M. & W. at p. 510, where there is a suggestion of the modern rule.

Indermaur v. Dames (1866) L. R. 1 C. P. 274, 35 L. J. C. P. 184, 2 C. P. 311, 36 L. J. C. P. 181, constantly cited in later cases, and reprinted in Bigelow L. C.

L. R. 1 C. P. at p. 288.

L. R. 2 C. P. 311.

Chapman v. Rothwell (1858) 1 E. B. & E. 168, 27 L. J. Q. B. 315, treated as a very plain case, where a trap-door was left open in the floor of a passage leading to the defendant’s office.

See Holmes v. N. E. R. Co. (1869-71) L. R. 4 Ex. 254, in Ex. Ch. L. R. 6 Ex. 123, 40 L. J. Ex. 121; White v. France (1877) 2 C. P. D. 308, 46 L. J. C. P. 823.

Smith v. London & St. Katharine Docks Co. (1868) L. R. 3 C. P. 326, 37 L. J. C. P. 217 (Bovill C. J. and Byles J., dub. Keating J.).

Heaven v. Pender (1883) 11 Q. B. Div. 503, 52 L. J. Q. B. 702.

Per Cotton and Bowen L. JJ. 11 Q. B. Div. at p. 515. The judgment of Brett M. R. attempts to lay down a wider principle with which the Lords Justices did not agree. See p. 391 above. It must be taken as a fact, though it is not clearly stated, that the defective condition of the rope might have been discovered by reasonably careful examination when the staging was put up.

Miller v. Hancock, ’93, 2 Q. B. 177, 4 R. 478, C. A.

Francis v. Cockrell (1870) Ex. Ch. L. R. 5 Q. B. 184, 501, 39 L. J. Q. B. 113, 291. The plaintiff had paid money for admission, therefore there was a duty ex contractu, but the judgments in the Ex. Ch., see especially per Martin B., also affirm a duty independent of contract. This is one of the most explicit authorities showing that the duty extends to the acts of contractors as well as servants.

Foulkes v. Metrop. District R. Co. (1880) 5 C. P. Div. 157, 49 L. J. C. P. 361; Moffatt v. Bateman (1869) L. R. 3 P. C. 115.

Elliott v. Hall (1885) 15 Q. B. D. 315, 54 L. J. Q. B. 518. The seller of coals sent them to the buyer in a truck with a dangerously loose trap-door in it, and the buyer’s servant in the course of unloading the truck fell through and was hurt.

Hayn v. Culliford (1879) 4 C. P. Div. 182, 48 L. J. C. P. 372.

The Moorcock (1889) 14 P. Div. 64, 58 L. J. P. 73.

Lax v. Corporation of Darlington (1879) 5 Ex. Div. 28, 49 L. J. Ex. 105.

The Calliope, ’91, A. C. 11, 60 L. J. P. 28, reversing the decision of the C. A., 14 P. Div. 138, 58 L. J. P. 76, on a different view of the facts. The reasons given in The Moorcock, note (l) above, seem to be to some extent qualified by this, though the decision itself is approved by Lord Watson, ’91, A. C. at p. 22.

Foulkes v. Metrop. District R. Co. (1880) 5 C. P. Div. 157, 49 L. J. C. P. 361.

Hayn v. Culliford (1879) 4 C. P. Div. 182, 48 L. J. C. P. 372.

Lax v. Corporation of Darlington (1879) 5 Ex. Div. 28, 49 L. J. Ex. 105 (the plaintiff’s cow was killed by a spiked fence round a statue in the market place). A good summary of the law, as far as it goes, is given in the argument of Cave J. (then Q.C.) for the plaintiff at p. 31. The question of the danger being obvious was considered not open on the appeal; if it had been, qu. as to the result, per Bramwell L. J. It has been held in Minnesota (1889) that the owner of a building frequented by the public is bound not to allow a man of known dangerous temper to be employed about the building: Dean v. St. Paul Union Depôt Co., 29 Am. Law Reg. 22.

Readhead v. Midland R. Co. (1869) Ex. Ch. L. R. 4 Q. B. 379; a case of contract between carrier and passenger, but the principle is the same, and indeed the duty may be put on either ground, see Hyman v. Nye (1881) 6 Q. B. D. 685, 689, per Lindley J. This does not however qualify the law as to the seller’s implied warranty on the sale of a chattel for a specific purpose; there the warranty is absolute that the chattel is reasonably fit for that purpose, and there is no exception of latent defects: Randall v. Newson (1877) 2 Q. B. Div. 102, 46 L. J. Q. B. 257.

Hyman v. Nye (1881) 6 Q. B. D. at p. 687.

Winterbottom v. Wright, 10 M. & W. 109; Collis v. Selden (1868) L. R. 3 C. P. 495, 37 L. J. C. P. 233; Losee v. Clute, 51 N. Y. 494.

P. 460, above.

Thomas v. Quartermaine, 18 Q. B. Div. 685, 56 L. J. Q. B. 340.

Dicta of L.JJ. ibid., and Baddeley v. Earl Granville (1887) 19 Q. B. D. 423, 56 L. J. Q. B. 501. See further Yarmouth v. France, 19 Q. B. D. 647, and p. 153, above. Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683, was a case not of this class, but (as the facts were found) of negligence in conducting a specific operation.

9 C. B. 392, 19 L. J. C. P. 195 (1850); cp. D. 9. 2, ad leg. Aquil. 28.

Hurst v. Taylor (1885) 14 Q. B. D. 918, 54 L. J. Q. B. 310; defendants, railway contractors, had (within the statutory powers) diverted a footpath to make the line, but did not fence off the old direction of the path; plaintiff, walking after dark, followed the old direction, got on the railway, and fell over a bridge.

4 C. B. N. S. 556, 27 L. J. C. P. 318 (1858).

Cp. Sweeny v. Old Colony & Newport R. R. Co. (1865) 10 Allen (Mass.) 368, and Bigelow L. C. 660.

The language of the judgments leaves it not quite clear whether the continued permission to use the road for access to a public building (the Hanwell Lunatic Asylum) did not amount to an “invitation” in the special sense of this class of cases.

2 H. & C. 722, 33 L. J. Ex. 13, and in Bigelow L. C. 578 (1863).

Per Pollock C. B. Cp. Scott v. London Dock Co. (1865) 3 H. & C. 596, 34 L. J. Ex. 220, p. 400, above.

Ex. Ch. L. R. 6 Q. B. 759, 40 L. J. Q. B. 285 (1871).

Per Cur. L. R. 6 Q. B. at pp. 761, 762.

Mullen v. St. John, 57 N. Y. 567, 569.

Tarry v. Ashton (1876) 1 Q. B. D. 314, 45 L. J. Q. B. 260.

Per Blackburn J. at p. 319.

Welfare v. London & Brighton R. Co. (1869) L. R. 4 Q. B. 693, 38 L. J. Q. B. 241; a decision on peculiar facts, where perhaps a very little more evidence might have turned the scale in favour of the plaintiff.

See Bower v. Peate (1876) 1 Q. B. D. 321, 45 L. J. Q. B. 446; Hughes v. Percival (1883) 8 App. Ca. 443, 52 L. J. Q. B. 719; and cp. Gorham v. Gross, 125 Mass. 232.

Willes J., Gautret v. Egerton (1867) L. R. 2 C. P. at p. 375.

Hounsell v. Smyth (1860) 7 C. B. N. S. 731, 29 L. J. C. P. 203.

Gautret v. Egerton (1867) L. R. 2 C. P. 371, 36 L. J. C. P. 191.

Sullivan v. Waters (1864) 14 Ir. C. L. R. 460.

Corby v. Hill (1858) 4 C. B. N. S. 556, 27 L. J. C. P. 318, p. 467, above.

Willes J., L. R. 2 C. P. at p. 373.

Bolch v. Smith (1862) 7 H. & N. 736, 31 L. J. Ex. 201.

Martin B., 7 H. & N. at p. 745. Batchelor v. Fortescue (1883) 11 Q. B. Div. 474, 478, seems rather to stand upon the ground that the plaintiff had gone out of his way to create the risk for himself. As between himself and the defendant, he had no title at all to be where he was. Cp. D. 9. 2. ad. leg. Aquil. 31, ad fin. “culpa ab eo exigenda non est, cum divinare non potuerit an per eum locum aliquis transiturus sit.” In Ivay v. Hedges (1882) 9 Q. B. D. 80, the question was more of the terms of the contract between landlord and tenant than of a duty imposed by law. Quaere, whether in that case the danger to which the tenant was exposed might not have well been held to be in the nature of a trap. The defect was a non-apparent one, and the landlord knew of it.

Cp. Blakemore v. Bristol and Exeter R. Co. (1858) 8 E. & B. 1035, 27 L. J. Q. B. 167, where it seems that the plaintiff’s intestate was not even a licensee; but see 11 Q. B. D. 516.

Southcote v. Stanley (1856) 1 H. & N. 247, 25 L. J. Ex. 339. But quaere if this explanation be not obscurum per obscurius. Cp. Abraham v. Reynolds, 5 H. & N. at p. 148, where the same line of thought appears.

Moffatt v. Bateman (1869) L. R. 3 P. C. 115.

Horace Smith 38, Campbell 119.

See p. 387, above. Campbell, pp. 26, 27.

13 Edw. I., c. 24.

I do not think it was ever attempted to bring the real actions under this classification.

And strictly, not for an action of trespass; but there are classes of facts which may be regarded as constituting either wrongs of misfeasance (case), or acts which might be justified under some common or particular claim of right, but not being duly done fail of such justification and are merely wrongful (trespass).

Gladwell v. Steggall (1839) 5 Bing. N. C. 733, 8 Scott, 60, 8 L. J. C. P. 361; action by an infant for incompetence in surgical treatment. In such an action the plaintiff’s consent is material only because without it the defendant would be a mere trespasser, and the incompetence would not be the gist of the action, but matter for aggravation of damages. To the same effect is Pippin v. Sheppard (1822) 11 Price 400, holding that a declaration against a surgeon for improper treatment was not bad for not showing by whom the surgeon was retained or to be paid. As to the assumption of special skill being material, see Shiells v. Blackburne (1789) 1 H. Bl. 158, 2 R. R. 750.

O. W. Holmes, The Common Law, pp. 274 sqq.; J. B. Ames in Harv. Law Rev. ii. 1, 53.

An analogy to this in the Roman theory of culpa, under the Lex Aquilia, can hardly be sustained. See the passages in D. 9. 2. collected and discussed in Dr. Grueber’s treatise, at pp. 87, 209. On the other hand the decision in Slade’s case, 4 Co. Rep. 91 a, that the existence of a cause of action in debt did not exclude assumpsit, was in full accordance with the original conception.

Brown v. Boorman (1844) 11 Cl. & F. 1. The defendant’s pleader appears to have been unable to refer the declaration to any certain species; to make sure of having it somewhere he pleaded—(1) not guilty; (2) non assumpsit; (3) a traverse of the alleged employment.

Per Lord Campbell.

Courtenay v. Earle (1850) 10 C. B. 73, 20 L. J. C. P. 7. See especially the dicta of Maule J. in the course of the argument. In that case it was attempted to join counts, which were in substance for the non-payment of a bill of exchange, with a count in trover.

Williamson v. Allison (1802) 2 East 446.

From 1695, Dalston v. Janson, 5 Mod. 89, 1 Ld. Raym. 58, till 1766, when the last-mentioned case and others to the same effect were overruled in Dickon v. Clifton, 2 Wils. 319.

Buddle v. Willson (1795) 6 T. R. 369, 3 R. R. 202, see Mr. Campbell’s note at p. 206.

Pozzi v. Shipton (1839) 8 A. & E. 963, 975, 8 L. J. Q. B. 1. Cp. Tattan v. G. W. R. Co. (1860) 2 E. & E. 844, 29 L. J. Q. B. 184, Y. B. 2 Hen. IV. 18, pl. 5.

Pozzi v. Shipton, last note.

Gladwell v. Steggall (1839) 5 Bing. N. C. 733, 8 Scott 60, 8 L. J. C. P. 361.

Austin v. G. W. R. Co. (1867) L. R. 2 Q. B. 442, where the judgment of Blackburn J. gives the true reason. See further below.

Jennings v. Rundall (1799) 8 T. R. 335, 4 R. R. 680; p. 50, above. The addition of a count charging wilful fraud made no difference: Green v. Greenbank (1816) 2 Marsh. 485; 17 R. R. 529.

Chinery v. Viall (1860) 5 H. & N. 288, 29 L. J. Ex. 180; p. 325, above.

Marzetti v. Williams (1830) 1 B. & Ad. 415; action by customer against banker for dishonouring cheque.

Fleming v. Manchester, Sheffield & Lincolnshire R. Co. (1878) 4 Q. B. D. 81. It is impossible to reconcile the grounds of this decision with those of Pozzi v. Shipton (1839) 8 A. & E. 963, 8 L. J. Q. B. 1; p. 482, above.

Taylor v. M. S. & L. R. Co., ’95, 1 Q. B. 134, 14 R. Jan. 350, 64 L. J. Q. B. 6 C. A. (porter shut carriage door on plaintiff’s thumb). The enactment is s. 116 of the County Courts Act, 1888, superseding a similar section in the repealed Act of 1867.

It has been suggested that a shipowner may be under this responsibility, not because he is a common carrier, but by reason of a distinct though similar custom extending to shipowners who carry goods for hire without being common carriers; Nugent v. Smith (1876) 1 C. P. D. 14, 45 L. J. C. P. 19; but the decision was reversed on appeal, 1 C. P. D. 423, 45 L. J. C. P. 697, and the propositions of the Court below specifically controverted by Cockburn C. J., see 1 C. P. D. at pp. 426 sqq. I am not aware of any other kind of employment to which the “custom of the realm” has been held to apply.

5 E. & B. 860, 25 L. J. Q. B. 129 (1856), see p. 273 above, and Principles of Contract, 6th ed. 15, 16. The case is perhaps open to the remark that a doubtful tort and the breach of a doubtful contract were allowed to save one another from adequate criticism.

L. R. 2 Q. B. 442 (1867).

Per Lush J. at p. 447.

Per Blackburn J. at p. 445, and see per Grove J. in Foulkes v. Metrop. District R. Co. (1880) 4 C. P. D. at p. 279, 48 L. J. C. P. 555.

See Chap. XII. p. 460 above; and cp. Taylor’s ca. note (t), p. 484, above.

See Moffatt v. Bateman (1869) L. R. 3 P. C. 115.

Suppose the master by accident had left his money at home, and the servant had paid both fares out of his own money: could it be argued that the master had no contract with the company?

Marshall v. York, Newcastle & Berwick R. Co. (1851) 11 C. B. 655, 21 L. J. C. P. 34; approved by Blackburn J. in Austin v. G. W. R. Co., note (x), p. 486.

Blackst. iii. 163.

L. Q. R. i. 233.

Moses v. Macferlan, 2 Burr. 1005; cp. Leake on Contracts, 3rd ed. 54, 70, 71. As to the limits of the option to sue in assumpsit in such cases, see Waiver of Tort, by Prof. W. A. Keener, Harv. Law Rev. vi. 223.

Lightly v. Clouston (1808) 1 Taunt. 112, 9 R. R. 713.

Ex. Ch. (1857) 8 E. & B. 647, 27 L. J. Q. B. 215.

Dalyell v. Tyrer (1858) E. B. & E. 899, 28 L. J. Q. B. 52.

Foulkes v. Metrop. Dist. R. Co., 5 C. P. Div. 157, 49 L. J. C. P. 361. Cp. Berringer v. G. E. R. Co. (1879) 4 C. P. D. 163, 48 L. J. C. P. 400.

Bramwell L. J., 5 C. P. Div. at p. 159. See the judgment of Thesiger, L. J. for a fuller statement of the nature of the duty. Comparison of these two judgments leaves it capable of doubt whether the defendants would have been liable for a mere non-feasance; Taylor’s ca. (p. 495, below), does not remove that doubt.

Marshall’s ca. (1851) 11 C. B. 655, 21 L. J. C. P. 34, supra, p. 487.

Martin v. G. I. P. R. Co. (1867) L. R. 3 Ex. 9, per Bramwell B. at p. 14, 37 L. J. Ex. 27.

Channell B. ibid.; Kelly C. B. and Pigott B. doubted. The later case of Becher v. G. E. R. Co. (1870) L. R. 5 Q. B. 241, 39 L. J. Q. B. 122, is distinguishable: all it decides is that if A. delivers B.’s goods to a railway company as A.’s own ordinary luggage, and the company receives them to be carried as such, B. cannot sue the company for the loss of the goods. Martin’s case, however, was not cited.

19 C. B. N. S. 213, 34 L. J. C. P. 292 (1865). This case was not cited either in Martin v. G. I. P. R. Co. or Foulkes v. Met. Dist. R. Co.

Willes J., 19 C. B. N. S. at p. 240.

Montague Smith J. at p. 245.

“The Court decided this case on the principle that one who is no party to a contract cannot sue in respect of the breach of a duty arising out of the contract. But it may be doubted whether this was correct; for the duty, as appears by the series of cases cited in the earlier part of this note, does not exclusively arise out of the contract, but out of the common law obligation of the defendants as carriers;” 1 Wms. Saund. 474. Sir E. V. Williams was a member of the Court which decided Marshall’s case, supra, p. 487.

Ames v. Union R. Co. (1875) 117 Mass. 541, expressly following Marshall’s ca. (1851) 11 C. B. 655, 21 L. J. C. P. 34, supra, p. 487.

Compare Mr. Henry T. Terry’s criticism in “Leading Principles of Anglo-American Law,” Philadelphia, 1884, pp. 485—488.

See p. 210 above.

Taylor v. M. S. & L. R. Co., ’95, 1 Q. B. 134 (also in 14 R. Jan. 350, and 64 L. J. Q. B. 6). See per A. L. Smith L. J. ’95, 1 Q. B. at pp. 140, 141, but it is submitted that neither the declaration nor the argument for the plaintiff treated the action as founded on contract, but only the defendant’s plea.

10 M. & W. 109, 11 L. J. Ex. 415 (1842).

6 Ex. 761, 20 L. J. Ex. 430 (1851).

Langridge v. Levy (1837) 2 M. & W. 519.

George v. Skivington (1869) L. R. 5 Ex. 1, 38 L. J. Ex. 8.

See Thomas v. Winchester (1852) 6 N. Y. 397, Bigelow L. C. 602, p. 456, above.

Such is Collis v. Selden (1868) L. R. 3 C. P. 495, 37 L. J. C. P. 233, where the declaration attempted to make a man liable for creating a dangerous state of things, without any allegation that he knew of the danger, or had any control over the thing he worked upon or the place where it was, or that the plaintiff was anything more than a “bare licensee.” Tollit v. Sherstone, 5 M. & W. 283, is another study in bad pleading which adds nothing to the substance of the law. So Howard v. Shepherd (1850) 9 C. B. 296, exhibits an attempt to disguise a manifestly defective cause of action in assumpsit by declaring in the general form of case.

D. 19, 2. locati conducti, 13, § 4.

D. 9, 2. 5, § 3; Grueber on the Lex Aquilia, p. 14: the translation there given is not altogether correct, but the inaccuracies do not affect the law of the passage. And see D. h. t. 27, §§ 11, 33, Grueber, p. 230.

Blackstone, ii. 442, speaks of a contract to pay a sum of money as transferring a property in that sum; but he forthwith adds that this property is “not in possession but in action merely,” i.e. it is not property in a strict sense: there is a res but not a dominus, Vermögen but not Eigenthum.

We have no right to say that a system of law is not conceivable where such a doctrine would be natural or even necessary. But that system, if it did exist, would be not at all like the Roman law and not much like the common law.

2 E. & B. 216, 22 L. J. Q. B. 463; by Crompton, Erle, and Wightman JJ.; diss. Coleridge J.

6 Q. B. Div. 333, 50 L. J. Q. B. 305; by Lord Selborne L. C. and Brett L. J.; diss. Lord Coleridge C. J.

See the declaration in Lumley v. Gye. In Bowen v. Hall it does not appear how the claim for damages was framed, but in the opinion of the majority of the Court there was evidence of special damage; see 6 Q. B. D. 337.

See the dissenting judgment of Sir John Coleridge in Lumley v. Gye.

Temperton v. Russell, ’93, 1 Q. B. 715, C. A. See p. 295 above.

Vicars v. Wilcocks (1807) 8 East, 1, 9 R. R. 361, and in 2 Sm. L. C.

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

Pp. 422—425, above.

Walker v. Cronin (1871) 107 Mass. 555, a case very like Bowen v. Hall.

Angle v. Chicago, St. Paul, &c. Ry. (1893) 151 U. S. 1, 13.

107 Mass. 566. I owe the following additional references to State reports to the kindness of an American friend:—Rice v. Manley, 66 N. Y. (21 Sickels) 82; Benton v. Pratt, 2 Wend. 385 (see p. 285 above); Jones v. Blocker, 43 Ga. 331; Haskin v. Royster, 70 N. C. 601; Jones v. Starly, 76 N. C. 355; Dickson v. Dickson, La. An. 1261; Burger v. Carpenter, 2 S. C. 7.

See Mr. William Schofield on “The principle of Lumley v. Gye and its application,” Harv. Law Rev. ii. 19.

P. 491 above.

The exceptions to this rule are wider in America than in England.

Dickson v. Reuter’s Telegram Co. (1877) 3 C. P. Div. 1, 47 L. J. C. P. 1, confirming Playford v. U. K. Electric Telegraph Co. (1869) L. R. 4 Q. B. 706, 38 L. J. Q. B. 249.

Gray on Communication by Telegraph (Boston, 1885) §§ 71-73, where authorities are collected. And see Wharton on Contracts, §§ 791, 1056, who defends the American rule on somewhat novel speculative grounds. Perhaps the common law ought to have a theory of culpa in contrahendo, but the lamented author’s ingenuity will not persuade many common lawyers that it has. And if it had, I fail to see how that could affect the position of parties between whom there is not even the offer of a contract.

See especially Denton v. G. N. R. Co. (1856) 5 E. & B. 860, 25 L. J. Q. B. 129, p. 259 above.

See pp. 270, 271 above.

The law of defamation stands apart: but it is no exception to the proposition in the text, for it is not a law requiring care and caution in greater or less degree, but a law of absolute responsibility qualified by absolute exceptions; and where malice has to be proved, the grossest negligence is only evidence of malice.

Cp. Sanders v. Stuart (1876) 1 C. P. D. 326, 45 L. J. C. P. 682.

4 Q. B. Div. 81.

5 C. P. Div. 157, 49 L. J. C. P. 361.

3 C. P. Div. 1, 47 L. J. C. P. 1.

6 Q. B. Div. 333, 50 L. J. Q. B. 305.

See the principle explained, and worked out in relation to complicated facts, in Pease v. Gloahec, L. R. 1 P. C. 219, 35 L. J. P. C. 66.

Cundy v. Lindsay, 3 App. Ca. 459, 47 L. J. Q. B. 481.

Hardman v. Booth, 1 H. & C. 803, 32 L. J. Ex. 105.

It will be remembered that the essence of trespass de bonis asportatis is depriving the true owner of possession: a thief has possession in law, though a wrongful possession, and the lawful possessor of goods cannot at common law steal them, except in the cases of “breaking bulk” and the like, where it is held that the fraudulent dealing determines the bailment.

See passim in the opinions delivered in Hollins v. Fowler, L. R. 7 H. L. 757, 44 L. J. Q. B. 169.

Brett M. R., The Notting Hill (1884) 9 P. Div. 104, 113, 53 L. J. P. 56.

9 Ex. 341, 23 L. J. Ex. 179 (1854).

Horne v. Midland R. Co. (1873) Ex. Ch., L. R. 8 C. P. 131, 43 L. J. C. P. 59.

Hydraulic Engineering Co. v. McHaffie (1878) 4 Q. B. Div. 670, per Bramwell L. J. at p. 674; Brett and Cotton L.JJ. are no less explicit. The time to be looked to is that of entering into the contract: ib. In McMahon v. Field (1881) 7 Q. B. Div. 591, 50 L. J. Q. B. 552, the supposed necessity of a special undertaking is not put forward at all. Mr. J. D. Mayne, though he still (5th ed. 1894) holds by Horne v. Midland R. Co., very pertinently asks where is the consideration for such an undertaking.

As to the treatment of consequential damage where a false statement is made which may be treated either as a deceit or as a broken warranty, see Smith v. Green (1875) 1 C. P. D. 92, 45 L. J. C. P. 28.

According to Alderson B. in Hadley v. Baxendale, it is the knowledge of “special circumstances under which the contract was actually made” that has to be looked to, i. e. the probability of the consequence is only matter of inference.

See Berry v. Da Costa (1866) L. R. 1 C. P. 331, 35 L. J. C. P. 191.

Le Blanc J. in Chamberlain v. Williamson (1814) 2 M. & S. 408, 414, 15 R. R. 295.

Finlay v. Chirney (1888) 20 Q. B. Div. 494, 57 L. J. Q. B. 247.

Chamberlain v. Williamson, 2 M. & S. at p. 115, 15 R. R. at p. 297.

Chamberlain v. Williamson, last note; Willes J. in Alton v. Midland R. Co. 19 C. B. N. S. at p. 242, 34 L. J. C. P. at p. 298; cp. Beckham v. Drake (1841) 8 M. & W. at p. 854; 1 Wms. Saund. 242; and see more in Williams on Executors, pt. 2, bk. 3, ch. 1, § 1 (9th ed. p. 695, sqq.); and Raymond v. Fitch (1835) 2 C. M. & R. 588.

See a complaint by the bishops in 1257, Mat. Par. Chron. Maj. (ed. Luard) vol. vi. p. 363. New writs contrary to law are made in the Chancery without the consent of the council of the realm. So under the provisions of Oxford (1258) the Chancellor is to swear that he will seal no writs save writs of course, without the order of the king and of the council established by the provisions. See Stubbs, Select Charters, Part 6, No. 4.

Stat. 13 Edw. I. (1285) c. 24.

His doctrine as to the making of new writs will be found on fols. 413—414 b. See fol. 438 b for a writ invented by William of Raleigh. In several other cases Bracton notices that the writ has been lately devised by resolution of the Court (de consilio curiae), e. g. the Quare Ejecit, fol. 220.

Fol. 102.

Vol. i. p. 156. Britton’s equivalent for maleficium is trespass.

Fol. 120.

The writ of debt in Glanvill, lib. 10, cap. 2, is just the writ of right with the variation that a certain sum of money due is substituted for a certain quantity of land. There may be trial by battle in Debt; see lib. 10, cap. 5.

Editions in 1613, 1636, 1678, and 1759. In the last of these see pp. 257, 261, 284, 296. Blackstone notices this classification in Comment. vol. iii. p. 274.

Registrum, fol. 109 b; writs for not cutting down trees and not erecting a stone cross as promised, are followed immediately by a writ for entering a warren and carrying off goods by force and arms.

Fol. 102 b.

Kettle v. Bromsall (1738) Willes 118; Mills v. Graham (1804) 1 B. & P. N. R. 140, 8 R. R. 767; Gledstane v. Hewitt (1831) 1 Tyr. 445; Broadbent v. Ledward (1839) 11 A. & E. 209; Clements v. Flight (1846) 16 M. & W. 42, 16 L. J. Ex. 11.

Walker v. Needham (1841) 4 Sc. N. R. 222; 3 Man. & Gr. 557; Danby v. Lamb (1861) 11 C. B. N. S. 423, 31 L. J. C. P. 17.

“And indeed a writ of debt in the detinet only, is neither more nor less than a mere writ of detinue.” Blackst. Comm. iii. 156.

3 Man. & Gr. 561, note.

Bryant v. Herbert (1878) 3 C. P. Div. 389, reversing S. C. ibid. 189, 47 L. J. C. P. 670.

Hambly v. Trott (1776) 1 Cowp. 371, 373, 374.

“Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs.” Comm. iii. 117.

Ibid. 153.

Thus in Tidd’s Practice (chap. i.) detinue is treated as ex delicto; in Chitty’s Pleading (chap. ii.) it is classed as ex contractu, but hesitatingly.

Denison v. Ralphson (1682) 1 Vent. 365, 366.

5 & 6 W. & M. c. 12, abolishing the capiatur pro fine.

The learning on this topic will be found in the notes to Coryton v. Lithebye, 2 Wms. Saund. 117 d. See also the observations of Bramwell, L. J. in Bryant v. Herbert, 3 C. P. Div. 389—391.

See Bracton, fol. 407 b.

Pinchon’s Case (1611) 9 Rep. 86 b. By this time the province within which wager of law was permitted had been so much narrowed by judicial decision that it had become possible to regard as merely procedural the rule as to debt against executors stated above.

Sir Henry Sherrington’s Case (temp. Eliz.) Sav. 40. See remarks on this case and generally on this piece of history by Bowen L. J. in Phillips v. Homfray, 24 Ch. Div. 439, 457, 52 L. J. Ch. 833.

Hambly v. Trott, 1 Cowper 371; Phillips v. Homfray, ubi sup.

Stat. 5 & 6 W. & M. c. 12. The penal character of the writ of trespass is well shown by the clause of the Statutum Walliae introducing that writ into Wales. “Justitiarius . . . . si invenerit reum culpabilem, castiget eum per prisonam vel per redemptionem vel per misericordiam, et per dampna laeso restituenda secundum qualitatem et quantitatem delicti, ita quod castigatio illa sit aliis in exemplum, et timorem praebeat delinquendi.”

Le Mason v. Dixon (1627) W. Jones, 173.

Stat. 4 Edw. III. c. 7. De bonis asportatis in vita testatoris.

Chamberlain v. Williamson (1814) 2 M. & S. 408, 15 R. R. 295; Finlay v. Chirney, 20 Q. B. Div. 494, 57 L. J. Q. B. 247.

P. 59.

See notes to Cabell v. Vaughan, 1 Wms. Saund. 291.

Br. Abr. Responder, 54.

Boson v. Sandford, 3 Salk. 203; 1 Shower 101; Rich v. Pilkington, Carth. 171; Child v. Sands, Carth. 294; Bastard v. Hancock, Carth. 361.

Rice v. Shute, 5 Burr. 2611.

As to the possibility of the same act or default answering both descriptions, see the last chapter of the text.

9 & 10 Vict. c. 95, s. 129.

13 & 14 Vict. c. 61, s. 11.

15 & 16 Vict. c. 76.

19 & 20 Vict. c. 108, s. 30.

23 & 24 Vict. c. 126, s. 34.

30 & 31 Vict. c. 142, s. 5. Recent decisions are Bryant v. Herbert, 3 C. P. D. 189, 389, 47 L. J. C. P. 670; Pontifex v. Midland R. Co. 3 Q. B. D. 23; Fleming v. Manchester, &c. R. Co. 4 Q. B. Div. 81.

51 & 52 Vict. c. 43, ss. 62, 65, 66.

51 & 52 Vict. c. 43, s. 116.

This must be a defect showing some negligence of the employer; Walsh v. Whiteley (1888) 21 Q. B. Div. 371, 57 L. J. Q. B. 586. “Defect” “means the absence of fitness to secure safety in the operation for which the machinery is used”: per Kennedy, J., Stanton v. Scrutton (1893), 5 R. at p. 246, 62 L. J. Q. B. at p. 408.

An object left sticking out over a way is not a defect in the condition of the way; McGiffin v. Palmer’s Shipbuilding Co. (1882) 10 Q. B. D. 5, 52 L. J. Q. B. 25. “Defect in condition” includes unfitness for safe use, whether from original fault of structure or want of repair; Heske v. Samuelson (1883) 12 Q. B. D. 30, 53 L. J. Q. B. 45; or insufficiency of any part of the plant for the particular purpose it is being used for; Cripps v. Judge (1884) 13 Q. B. Div. 583, 53 L. J. Q. B. 517; but not mere negligent user: Willetts v. Watt, ’92, 2 Q. B. 92, 61 L. J. Q. B. 540, C. A. Any space which workmen have to pass over may be a “way”: ib. As to sufficiency of evidence on this point, Paley v. Garnett (1885) 16 Q. B. D. 52. A dangerous or improper collocation of things not defective in themselves may be a defect; Weblin v. Ballard (1886) 17 Q. B. D. 122, 55 L. J. Q. B. 395; but see Thomas v. Quartermaine, 18 Q. B. Div. 685; and qu. whether Weblin v. Ballard be right, per Bowen L. J. at p. 699.

Leaving a wall which is under repair insecure for want of proper shoring up may be a defect in the condition of works within this subsection; Brannigan v. Robinson, ’92, 1 Q. B. 344, 61 L. J. Q. B. 202.

“Plant” may include horses, and vice in a horse is a “defect”; Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7.

The words of this section do not apply to ways, works, &c. which are in course of construction, and not yet sufficiently complete to be used in the business; Howe v. Finch (1886) 17 Q. B. D. 187. They do apply to “an arrangement of machinery and tackle which, although reasonably safe for those engaged in working it, is nevertheless dangerous to workmen employed in another department of the business”; Smith v. Baker, ’91, A. C. 325, 354, 60 L. J. Q. B. 683, per Lord Watson.

See interpretation clause, sect. 8.

Osborne v. Jackson (1883) 11 Q. B. D. 619.

Snowden v. Baynes (1890) 25 Q. B. Div. 193, 59 L. J. Q. B. 325.

Orders or directions within the meaning of this sub-section need not be express or specific; Millward v. Midland R. Co. (1884) 14 Q. B. D. 68, 54 L. J. Q. B. 202. The order need not have been negligent in itself, nor the sole or immediate cause of the injury: Wild v. Waygood, ’92, 1 Q. B. 783, 61 L. J. Q. B. 391, C. A.

The duty of oiling and cleaning points is not “charge or control”; Gibbs v. G. W. R. Co. (1883-4) 11 Q. B. D. 22, 12 Q. B. Div. 208, 53 L. J. Q. B. 543. Any one having authority to set a line of carriages or trucks in motion, by whatever means, is in charge or control of a train; Cox v. G. W. R. Co. (1882) 9 Q. B. D. 106.

“Railway” has its natural sense, and is not confined to railways made or used by railway companies; Doughty v. Firbank (1883) 10 Q. B. D. 358, 52 L. J. Q. B. 480.

A workman can bind himself by contract with his employer not to claim compensation under the Act, and such contract is a bar to any claim under Lord Campbell’s Act; Griffiths v. Dudley (1882) 9 Q. B. D. 357, 51 L. J. Q. B. 543. If made for a distinct and substantial consideration, it may be for an infant worker’s benefit so as to be binding on him: Clements v. L. & N. W. R. Co. ’94, 2 Q. B. 482, 63 L. J. Q. B. 837, C. A.

This evidently means only that the defence of “common employment” shall not be available for the master; not that the facts and circumstances of the workman’s employment are not to be considered, e.g. if there is a question of contributory negligence. Nor does it exclude the defence that the workman in fact knew and accepted the specific risk; Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340; but such defence is not admissible where the risk was created by breach of a statutory duty; Baddeley v. Earl Granville (1887) 19 Q. B. D. 423, 56 L. J. Q. B. 501; and a workman’s continuing to work with defective plant after he has complained of the defect to the employer or foreman, who has refused or neglected to amend it, is not conclusive to show voluntary acceptance of the risk; Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7; Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683, see p. 153, above.

See Kiddle v. Lovett (1885) 16 Q. B. D. 605, 610.

This sub-section creates a new and special statutory defence, see Weblin v. Ballard (1886) 17 Q. B. D. 122, 125, 55 L. J. Q. B. 395. It does not enlarge by implication the right of action under sect. 1; Thomas v. Quartermaine, note (n).

This notice must be in writing; Moyle v. Jenkins (1881) 8 Q. B. D. 116, 51 L. J. Q. B. 112, and must contain in writing all the particulars required by sect. 7; Keen v. Millwall Dock Co. (1882) 8 Q. B. Div. 482, 51 L. J. Q. B. 277.

Proceedings in the county court cannot be stayed under sect. 39 of the County Courts Act, 1856. That section applies only to actions which might have been brought in the Superior Court; Reg. v. Judge of City of London Court (1885) 14 Q. B. D. 818, 54 L. J. Q. B. 330; affirmed in C. A., W. N. 1885, p. 95. As to grounds for removal, see Munday v. Thames Ironworks Co. (1882) 10 Q. B. D. 59, 52 L. J. Q. B. 119.

It need not state the cause of action with legal accuracy; Clarkson v. Musgrave (1882) 9 Q. B. D. 386, 51 L. J. Q. B. 525; cp. Stone v. Hyde, 9 Q. B. D. 76, 51 L. J. Q. B. 452.

Stone v. Hyde (1882) 9 Q. B. D. 76, 51 L. J. Q. B. 452; Carter v. Drysdale, 12 Q. B. D. 91.

Shaffers v. General Steam Navigation Co. (1883) 10 Q. B. D. 356, 52 L. J. Q. B. 260; cp. and dist. Osborne v. Jackson (1883) 11 Q. B. D. 619; Kellard v. Rooke (1888) 21 Q. B. Div. 367, 57 L. J. Q. B. 599. The difference between a foreman who sometimes lends a hand and a workman who sometimes gives directions is in itself, of course, a matter of fact.

“Any person [not being a domestic or menial servant] who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour;” 38 & 39 Vict. c. 90, s. 10. This definition does not include an omnibus conductor: Morgan v. London General Omnibus Co. (1884) 13 Q. B. Div. 832, 53 L. J. Q. B. 352. Nor the driver of a tramcar: Cook v. N. Metrop. Tramuays Co. (1887) 18 Q. B. D. 683, 56 L. J. Q. B. 309. Nor a grocer’s assistant in a shop, though he makes up and carries parcels in the course of his employment: Bound v. Lawrence, ’91, 1 Q. B. 226, 61 L. J. M. C. 21, C. A. (on the Employers and Workmen Act). Nor a potman in a publichouse, whose duties are substantially of a menial or domestic nature: Pearce v. Lansdowne (1892) 62 L. J. Q. B. 441. It does include a driver of carts, &c., who also has to load and unload the goods carried: Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7.

The Act of 1875 did not apply to seamen or apprentices to the sea service, sect. 13. By 43 & 44 Vict. c. 16, s. 11, it was extended to them, but not so as to affect the definition of “workman” in other Acts by reference to the persons to whom the Act of 1875 applies. Seamen, therefore, are not within the Employers’ Liability Act.

So in the Statutes of the Realm and Revised Statutes; c. 16 in other editions.

This is chap. 3 in the Statutes of the Realm.

Sic MS. Flor., which Mommsen’s text reproduces, but it is not Latin. Potuerit is probably the true reading, though Augustan Latinity would require potuisset. “Possit” ad fin. should obviously be “posset,” and is so corrected in other edd.

Minute of 17 July, 1879, on Indian Codification, in “Minutes by Sir H. S. Maine,” Calcutta, 1890, p. 224: “Civil wrongs are suffered every day in India, and though men’s ideas on the quantity of injury they have received may be vague, they are quite sufficiently conscious of being wronged somehow to invite the jurisdiction of courts of justice. The result is that, if the legislature does not legislate, the courts of justice will have to legislate; for, indeed, legislation is a process which perpetually goes on through some organ or another wherever there is a civilized government, and which cannot be stopped. But legislation by Indian judges has all the drawbacks of judicial legislation elsewhere, and a great many more. As in other countries, it is legislation by a legislature which, from the nature of the case, is debarred from steadily keeping in view the standard of general expediency. As in other countries, it is haphazard, inordinately dilatory, and inordinately expensive, the cost of it falling almost exclusively on the litigants. But in India judicial legislation is, besides, in the long run, legislation by foreigners, who are under the thraldom of precedents and analogies belonging to a foreign law, developed thousands of miles away, under a different climate, and for a different civilization. I look with dismay, therefore, on the indefinite postponement of a codified law of tort for India.”

This appears, in an Act not intended for a complete code of the subject, a desirable precaution. A similar clause was inserted in the English draft Criminal Code by the revising Commission.

This clause is inclusive, not exclusive: the specific definitions of, e.g., assault, trespass, and defamation stand on their own ground. By harm I mean what English law books commonly call actual damage.

Exceptions are dealt with under Wrongs to Property. (Clause 47 below.)

For the general principles see Fergusson v. Earl of Kinnoul, 9 Cl. & F. 251; Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93; Heaven v. Pender, 11 Q. B. D. 503.

Ponnusámy Tévar v. Collector of Madura, 3 Mad. H. C. 53.

[As to the relation of the period of limitation to the cause of action, see Act XV. of 1877, s. 24, and Darley Main Colliery Co. v. Mitchell, 11 Ap. Ca. 127.]

This is not a repetition: for there may be consequences, not ordinary, which a man nevertheless foresees, or which, in the particular case, a commonly prudent man in his position ought to foresee. Illustrations 4 and 8 are cases of this kind.

Vandenburgh v. Traux, 4 Denio (N. Y.), 464, with change of local colouring.

Illidge v. Goodwin, Lynch v. Nurdin, cited in Clark v. Chambers, 3 Q. B. D. 331. The Squib case (Scott v. Shepherd) seems hardly worth adding to these.

Lynch v. Nurdin, 1 Q. B. 29. Mangan v. Atterton, L. R. 1 Ex. 239, can hardly be supported against this.

Case put by Denman C. J. in Lynch v. Nurdin.

Hill v. New River Co. 9 B. & S. 303. The distinction between this and the next case is possibly too fine.

Cf. Sharp v. Powell, L. R. 7 C. P. 253. But illustrations 8 and 9 would perhaps be better omitted.

Cox v. Burbidge, 13 C. B. N. S. 430.

Les v. Riley, 18 C. B. N. S. 722.

Tillett v. Ward, 10 Q. B. D. 17. But query whether desirable to adopt this for India. An experienced judicial officer (Punjab) regards it as “very queer law and of doubtful equity.” As to impounding, Ben. Act IV. of 1866, s. 71 (and other local Acts).

This is intended to supersede Acts XII. and XIII. of 1855, and if adopted, will also involve some slight amendment of Act XV. of 1877 (Limitation). The maxim “actio personalis moritur cum persona,” rests on no intelligible principle, and even in England is more than half falsified by particular exceptions. I submit (after Bentham) that there is no place for it in a rational and simplified code. I do not overlook the consequence that in some cases persons who would have a right to compensation under Act XIII. of 1855 would, under this clause, have none. But I think that the rights created by Lord Campbell’s Act, and Act XIII. of 1855, which copies it, are anomalous and objectionable, so far as they produce results different from those which would be more simply produced by abolishing the common law maxim.

The old rule, or supposed rule, as to the civil remedy being “merged in the felony,” is all but exploded in England, and the H. C. of Calcutta, as long ago as 1866, decided against its adoption in India; see Illust. 2; Shama Churn Bose v. Bhola Nath Dutt, 6 W. R. (Civil Ref.) 9. Cf. Víranna v. Nagáyyah, I. L. R. 3 Mad. 6, following the H. C. of Calcutta.

See Girish Chunder Das v. Gillanders, Arbuthnot & Co. 2 B. L. R. 140, O. C.; Rani Shamshoondri Deba v. Dubhu Mundul, 2 B. L. R. 227, A. C. Both these cases seem to turn on a question of fact whether under all the circumstances the defendant had authorized or ratified the act complained of.

Some persons whose opinion is entitled to weight think it would be better not to make any new law on the question of employers’ liability. In the event of this opinion being adopted, I think the whole clause ought to be omitted. It seems impossible formally to adopt English law as it stood before the Act of 1880. “For the master’s benefit” is a common phrase in the authorities; but I think “purposes” a better word, as often the act or default of the servant does not and cannot produce any present benefit to the master, but produces great and evident loss, e.g., a railway collision. It was once supposed that deceit or wilful trespass by a servant, not authorized or ratified by the master, did not make the master liable. But modern authorities, such as Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, have exploded this notion.

This is a large alteration of English law, and intended so to be. The Employers’ Liability Act of 1880 is an awkward and intricate compromise, and evidently will not serve as a model. The final proviso is only existing law.

This seems needful: otherwise, as suggested in some of the English authorities, if the stable-boy leave a pail about, and the coachman breaks his shin over it in the dark, the coachman shall have an action against the master, &c., which would be inconvenient. The real question is, what risks is it, on the whole, reasonable to expect the servant to take as being naturally incidental to his employment?

Compulsory pilotage is the chief—I think the only—case to which this exception applies.

Gregory v. Piper, 9 B. & C. 591.

Storey v. Ashton, L. R. 4 Q. B. 476, and cases there cited. I should prefer to say: “A. is not liable to E., and he is liable to C. only if it appears as a fact that B.’s deviation was not such that he had ceased to be in the course of his employment as A.’s servant when he ran over C.;” cf. Whatman v. Pearson, L. R. 3 C. P. 422; though this would involve some innovation. I think the distinctions in the English cases are too fine.

Bayley v. Manchester, Sheffield & Lincolnshire R. Co. L. R. 8 C. P. 148.

M‘Kenzie v. McLeod, 10 Bing. 385. Strictly the question here is one of fact. But the Court evidently not only acquiesced in but approved the finding of the jury. A Punjab officer says the illustration is too refined, “unsuited to India, and objectionable on principle in relation to that country.” No harm could be done by omitting it.

Cf. Allen v. L. & S. W. R. L. R. 6 Q. B. 65, 69. In the case here supposed a private person would in India be entitled to arrest the thief, if theft were really committed in his view: Cr. P. C. 59.

Intended to reverse a case of Turner v. S. P. & D. R. Co. in the H. C. Allahabad, not reported (Alexander, p. 38); cf. Tunney v. Midland R. Co. L. R. 1 C. P. 291. Railway companies will not approve of the change, but it would leave them better off than they are on the Continent of Europe.

Contra, Farwell v. Boston & Worcester Railroad Corporation, 4 Met. 49, Bigelow L. C. 688. On principle, I think that, if there is to be any exception at all in the master’s favour, it should go as far as this. It seems to me that the engine-driver and the pointsman are as much in one and the same employment as the engine-driver and the guard, and that the reasoning of the Massachusetts case is, on the facts of that case, correct. But the Employers’ Liability Act, 1880, s. 1, sub-s. 5, appears to reverse the common law rule in this very point. I do not believe it possible to fix the limits of the exception satisfactorily, and I would submit whether it is worth keeping at all, except as regards domestic servants.

Muhammad Yusuf v. P. & O. Co., 6 Bombay H. C. 98, Alexander, p. 37.

See Ganesh Singh v. Ram Raja, 3 B. L. R. 441, P. C.

It may be worth considering whether the rule that judgment against some or one of joint wrong-doers is a bar to any suit against the others ought to be preserved in British India. It is generally not followed in the United States. (Cooley on Torts, 138.)

Adamson v. Jarvis, 4 Bing. 66; Betts v. Gibbins, 2 A. & E. 57.

Act XVIII. of 1850, with some condensation. As to criminal prosecution, Cr. P. C. 197. This, of course, does not apply to such a case as that of taking the wrong man’s goods, which is not an execution of the order. In criminal law the exception is wider, P. C. 79. For the English law and authorities, see Scott v. Stansfield, L. R. 3 Ex. 220. The question of limitation of suits for judicial acts is left to stand over. Provision in that behalf should perhaps come under the title of Remedies.

Pralhád Máhárudra v. A. C. Watt, 10 B. H. C. 346; Meghraj v. Zakir Hussain, I. L. R. 1 All. 280.

Vithobá Malhárí v. Corfield, 3 B. H. C. Appendix.

Vináyab Disákar v. Báí Itchá, 3 B. H. C. Appendix, 36.

Collector of Sea Customs v. Punniar Chithambaram, I. L. R. 1 Mad. 89.

Ragunâda Rau v. Nathamuni, 6 M. H. C. 423.

Chunder Narain Singh v. Brijo Bullub Gooyee (A. C.), 14 B. L. R. 254. But in Seshaiyangar v. R. Ragunatha Row, 5 M. H. C. 345, and the very similar case of R. Ragunáda Rau v. Nathamuni Thathamáyyangár, 6 M. H. C. 423, it is assumed that the making of an order of the same kind under the similar general provisions of the Cr. P. C. 308, is a judicial act within the meaning of Act XVIII. of 1850. I cannot reconcile these authorities, and submit for consideration which view is to be preferred. The Bengal case is the later (1874), and the Madras cases were cited in it.

The words “regularly and in good faith” are meant to cover what the English authorities on deprivation of office, expulsion from a club, and the like, call observing the rules of natural justice: Inderwick v. Snell, 2 Mac. & G. 216.

Fisher v. Keane, 11 Ch. D. 353.

Labouchere v. Wharncliffe, 13 Ch. D. at p. 352; Daukins v. Antrobus, 17 Ch. Div. 615.

Dhurmchund v. Nanabhaee Goobalchund, 1 Borr. 11, sed qu. See Bhugwan Meetha v. Kasheeram Govurdhun, 2 Borr. 323. The better opinion seems to be that suits for loss of caste are not to be allowed. This illustration should then be omitted; and the proper place for the rule that a suit for loss of caste as such does not lie would seem to be the title of defamation and similar wrongs.

This is intended to cover the cases of masters of vessels, parents, guardians, and persons in loco parentis. The provisions of 21 Geo. 3, c. 70, ss. 2, 3, will, I presume, be unaffected by this. Illustrations of the authority of a parent or schoolmaster are purposely omitted. Custom and feeling in these things vary from time to time, and from place to place. It may not be practicable to judge European, Hindu, and Muhammadan parents or masters by precisely the same standard.

Maude & Pollock, Merchant Shipping, I. 127, 4th ed.

Cases in H. L. on compensation, passim.

Biscoe v. G. E. R. Co., 16 Eq. 636.

Rajmohun Bose v. E. I. R. Co. 10 B. L. R. 241. [Sed qu. see London & Brighton R. Co. v. Truman, 11 App. Cas. 45.]

E.g., it would be manifest want of due care if on moving from a shorter range A. had omitted to put up his sight, and the unexplained fact of making a ricochet at a short distance, such as 200 yards, might well be held to show want of due care, though it might be explained as the result of something beyond the shooter’s control, such as, for example, a defective cartridge; while, on the other hand, it would, at a long range, such as 1,000 yards, of itself go for very little, being an accident which may happen even to a good marksman.

Cf. Brown v. Kendall (Supreme Court, Massachusetts), 6 Cush. 292.

“Ordinary right” is a rather vague phrase, but I cannot find a better one. The use of larger words like “legal rights” or “any right” would make this overlap Clause 20, and perhaps raise difficulties.

Y. B. 11 H. IV. 47, pl. 21.

See L. R. 10 Ex. 267.

I had written “for a neighbouring village,” after Chasemore v. Richards, but I am told by an Indian judicial officer (Punjab) that for Indian purposes it would not do to go so far, and that practice is in fact otherwise. Another (also Punjab) would omit both this and Illust. 5.

This is commonly supposed not to be the law of England. Lord Wensleydale in Chasemore v. Richards appears to have thought that it ought to be, but was not (7 H. L. C. at p. 388); but I know of no distinct authority that it is not so; the Roman law was so, and the law of Scotland is stated to be so (Bell’s Principles, referred to by Lord Wensleydale); and I submit that on principle it ought to be so defined. The question of policy must, of course, be carefully considered.

Rogers v. Rajendro Dutt, 8 Moo. I. App. 103.

Cf. P. C. ss. 87, 88, 89. For the purposes of civil law it seems desirable to consolidate and simplify these rather minute provisions; on the other hand, if the points are not expressly dealt with, awkward questions might arise whether the exceptions were the same as in the Penal Code or not.

Cf. P. C. 92. Illustrations 2 to 5 correspond with those of the Penal Code.

Cf. P. C. 95. As regards civil liability, this is not at present the law of England, but it is the practice and understanding of English people.

Undoubted English law; but unless it has become familiar in India, qu. whether it be desirable to give prominence to it.

Holford v. Bailey, Ex. Ch. 13 Q. B. 426, 444, 18 L. J. Q. B. 109, 112.

See per Holt C. J., Cole v. Turner, 6 Mod. 149.

Coward v. Baddeley, 4 H. & N. 478.

Parke B. in R. v. St. George, 9 C. & P. 493.

Messrs. Morgan and Macpherson’s note on P. C. 340.

Parankusam Narasaya Pantula v. Stuart (1865) 2 Mad. H. C. 396. See Mr. J. D. Mayne’s note to P. C. 340.

Bhyran Pershad v. Isharee (1871) 3 H. C. N. W. P. 313. Beating with slippers was the argument administered to certain atheists by the disciples of Śankara Áchárya; and, for whatever reason or combination of reasons, it is understood to be a gross form of insult in modern times. The law and practice are well settled in England.

See Parvals v. Mannár, I. L. R. 8 Mad. 175.

7 App. Ca. 771.

It seems now doubtful in British India how far the English distinction between slander and libel is adopted. Compare Nilmadhab Mookerjee v. Dookeeram Khottah, 15 B. L. R. 151, with Káshirám Krishna v. Bhadu Bápúji, 7 B. H. C. (A. C.) 17.

R. v. Burdett, 4 B. & Ald. 95; Stephen, Dig. Cr. L., Art. 270; Blake Odgers on Libel and Slander, ch. vi.

See Stephen, Dig. Cr. L., Art. 267.

Muhammad Ismail Khan v. Muhammad Tahir, 6 N. W. P. 38. Familiar law in England.

Pitumber Doss v. Dwarka Pershad, 2 N. W. P. 435.

See the law explained and discussed in Capital and Counties Bank v. Henty, 7 App. Ca. 741.

See the chapter of “Construction and Certainty” in Blake Odgers’ Digest, and the illustrations there collected.

The rules as to burden of proof have been produced by the need for defining what is the proper direction for a jury. It may be a question whether it is desirable to make them formally binding on judges deciding without juries.

Watkin v. Hall, L. R. 3 Q. B. 396. This is only the developed statement of the principle of the common law that, certain occasions excepted (and subject to the rule of special damage in slander, which it is proposed here to abrogate), a man defames his neighbour at his peril. It may seem a hard rule, but it is now well settled in England, and the general exception of cases of trifling harm (clause 26 of this draft) would be at least as effectual to prevent it from having oppresive results as the English rules limiting the right of action for slander as distinguished from libel.

See Purcell v. Sowler, 2 C. P. Div. 215.

24 & 25 Vict. c. 67.

Stevens v. Sampson (1879) 5 Ex. Div. 53. It was decided only in 1868 (Wason v. Walter, L. R. 4 Q. B. 73), that a fair report of a parliamentary debate cannot be a libel. Reports, &c. published by authority of either House are protected by statute 3 & 4 Vict. c. 9, which I presume applies to British India. Perhaps it is needless to refer expressly to that Act here. The High Courts would, I suppose, apply Wason v. Walter to fair reports of proceedings in the Governor General’s Council, &c. The case is not provided for in sect. 499 of the Penal Code, and I cannot find any other Indian authority, legislative or judicial, on the point.

I am not sure that the proviso is necessary under a rational system of pleading.

Qu. as to the policy of applying this rule to India to the full extent given to it in England. See Abdul Hakim v. Tej Chander Mukarji, I. L. R. 3 All. 815 (statements in a petition preferred in a judicial proceeding held to be protected only if made in good faith): also Hinde v. Bandry, I. L. R. 2 Mad. 13, which does not decide the point, but declines to assume that the English rule holds. The vague phrase, “has reference,” is the result of Munster v. Lamb, 11 Q. B. Div. 588, which decides that an advocate’s words are not actionable if they have anything to do with the case; they need not be relevant in any more definite sense. Words spoken by a judge in his office fall within the more general exception of judicial acts (clause 16 above). See also as to the use of the word “relevant” the judgment of Lord Bramwell (then a member of the C. A.) in Seaman v. Netherclift, 2 C. P. D. at p. 59. As to speeches in Council, the reason of the thing suggests that they must be privileged, but I do not find any authority.

It is not free from doubt whether reports made in the course of military (or other official?) duty, but not with reference to any pending judicial proceeding, are “absolutely privileged,” or are only ordinary “privileged communications,” i.e., are protected only if made bonâ fide. This clause is intended to leave the unsettled points at large.

There is some temptation to get rid of the term “privileged occasion” altogether: but as it would in any case persist in forensic usage, and is certainly convenient for separating the two distinct questions of the character of the occasion, and whether it was legitimately used, it seems best to keep it in the draft.

These sub-clauses are perhaps unnecessary.

James v. Jolly, Blake Odgers, 212; Somerville v. Hawkins, 10 C. B. 583, 20 L. J. C. P. 131.

Amann v. Damm, 8 C. B. N. S. 597, 29 L. J. C. P. 313.

Concessum, Coxhead v. Richards, 2 C. B. 569, 15 L. J. C. P. 278.

Williamson v. Freer, L. R. 9 C. P. 393; Reg. v. Sankara, I. L. R. 6 Mad. 381 (notice of putting out of caste sent on a postcard).

Davies v. Snead (1870) L. R. 5 Q. B. 608 (with some doubt as to the verdict).

The definition of cheating in the Penal Code, s. 415, is very wide, yet it does not completely cover the ground of deceit as a civil wrong. For in some cases an action for deceit will lie without any bad intention, and even in spite of good intention, on the part of the defendant (Polhill v. Walter, 3 B. & Ad. 114), the principle being that if a man takes on himself to certify that of which he has no knowledge, even in the honest belief that he is acting for the best, he shall answer for it if the fact is otherwise. On the other hand, the Penal Code does cover all ordinary cases of fraud, and the once vexed question as to the responsibility of a principal in tort for the fraud of his agent does not seem easy to treat as open in British India in the face of sect. 238 of the Contract Act, though that enactment does not directly settle it.

It has been suggested that there may be deceit by concealment of facts without any statement at all. Concealment, or even non-disclosure, may avoid a contract; in some classes of contracts a very strict duty of disclosing material facts is imposed by law; but I am not aware that a mere omission to give information has ever been treated as an actionable wrong, even in those cases where a contract “uberrimae fidei” has created a special duty of giving it. Of course, the remedy ex contractu is better, and this may account for such concealments and non-disclosures not being treated as torts. However, I believe that these clauses as drafted go to the full extent of the authorities.

The clause defining defamation.

See per Lord Cairns in Peek v. Gurney, L. R. 6 H. L. at p. 403.

Polhill v. Walter, 3 B. & Ad. 114. Doubt is expressed whether this be a suitable illustration for Indian use.

Peek v. Gurney, L. R. 6 H. L. 377.

Ibid.

On this point, see Redgrave v. Hurd, 20 Ch. D. 1. It is pointed out that Explanation 2, and this illustration, are hardly consistent with the exception to s. 19 of the Contract Act. That exception is not in accordance with English law as now settled, and ss. 17—19 are generally not very satisfactory.

Langridge v. Levy, 2 M. & W. 519, 4 M. & W. 338.

Per Bowen L. J., Abrath v. N. E. R. Co., 11 Q. B. D. 440, 455. This case [since affirmed in H. L. 11 App. Ca. 247] is the latest authority in the Court of Appeal, and defines the cause of action carefully and completely. The condition as to the proceedings having terminated in favour of the accused is in British India complicated by the system of appeals in criminal jurisdiction. See Alexander, Indian Case-Law on Torts, 130, 131. It does not seem desirable to depart from the common law as laid down in Abrath v. N. E. R. Co. without evident necessity; but some provision has to be made for the case of a conviction being reversed. That which I submit is intended to represent the better Anglo-Indian opinion upon this point.

“Knowing that there is no just or lawful ground for his accusation” (after P. C. 211) has been suggested, and might be a good simplification to replace the two sub-clauses (a) and (b). The draft follows the language of recent English authority. The explanation will have to be recast if the body of the clause is altered as suggested. The English authorities on malicious prosecution seem to be applicable in British India; see 11 B. L. R. 328.

That malicious abuse of civil process may be actionable, see Raj Chunder Roy v. Shama Soondari Debi, I. L. R. 4 Cal. 583. In this class of cases, as distinguished from malicious prosecution, special damage must always be shown. See Bigelow, L. C. 181, 206. I do not think it would be desirable to add illustrations to this clause; at all events not without intimate knowledge of Anglo-Indian judicial proceedings. The same remark applies to the clause on malicious prosecution.

See note at the end of this chapter.

Per Bramwell B., Hiort v. Bott (1874) L. R. 9 Ex. 86, 89; cf. the judgment of Thesiger L. J. in Jones v. Hough (1880) 5 Ex. D. 115, 128.

[This probably goes beyond settled English authority. But it is by no means certain that in England a servant having the custody of a chattel out of his master’s presence or the protection of his house cannot sue a trespasser in his own name; see p. 304 above.]

Donald v. Suckling, L. R. 1 Q. B. 585, is the modern leading case.

Hollins v. Fowler, L. R., 7 H. L. 757.

Tarini Charan Bose v. Debnarayan Mistri, 8 B. L. R. App. 69. If the conversion were proved to be beneficial to the property, quaere.

As to these exceptions, see the opinion of Blackburn J. in Hollins v. Fowler, L. R. 7 H. L. at pp. 766—8, which seems to favour making them wide enough to protect the miller or spinner, if acting in good faith and without purporting to acquire any interest in the corn or cotton beyond that of bailee for a special purpose without notice of the true owner’s claim, as well as his servants; and as to carriers, cf. Sheridan v. New Quay Co., 4 C. B. N. S. 618. To give full effect to Lord Blackburn’s opinion the proviso would have to protect all persons handling the goods of others in the way of their business. Lord Blackburn himself points out that this would go beyond existing authority. Whether it should be done is submitted as a question of policy.

Chapter VI. of the Easements Act (V. of 1882) deals with licences as regards immoveable property only. It is submitted that, inasmuch as a licence does not create an interest in property, but merely excuses what would otherwise be a trespass, the subject belongs to the law of torts more properly than to the law of easements. This being so, and the local extent of the Easements Act being limited, I leave the matter to the consideration of the Government of India. The two sets of clauses are intended to declare the same law, and I do not know that any great harm would come of having both in force over a limited extent of territory.

Great trouble has been caused in the United States by the untimely revocation of parol licences to erect dams, divert watercourses, and the like; Cooley on Torts, 307—312; and in some cases the law has been strained to confer rights on the licensees under the doctrine of estoppel or part performance. I do not know whether similar difficulties are to be apprehended in British India.

See Cornish v. Stubbs (1870) L. R. 5 C. P. 334, 339; and Mellor v. Watkins (1874) L. R. 9 Q. B. 400.

Patrick v. Colerick, 3 M. & W. 483, explaining Blackstone’s statement, Comm. iii. 4, which denies the right of entry on a third person’s land for capture, except where the taking was felonious. The plea in Patrick v. Colerick has the phrase “fresh pursuit;” the Court do not say anything of this being a necessary condition. But I suppose recapture should be, if not strictly on fresh pursuit in every case, yet within a reasonable time. English authorities are scanty on this point. There seem to be many modern American cases.

Y. B. 27 H. VIII. 27, pl. 10.

Rose v. Miles, 4 M. & S. 101 [16 R. R. 405].

Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281; this has been thought to be overruled by Ricket v. Metropolitan R. Co. L. R. 2 H. L. 175 (see at pp. 188, 199); per Willes, J., Beckett v. Midland R. Co., L. R. 3 C. P. 100. But this again is difficult to reconcile with the principle of Lyon v. Fishmongers’ Co., 1 App. Ca. 662; see Fitz v. Hobson, 14 Ch. D. 542. Ricket’s case is perhaps best treated as an anomalous decision on the construction of a statute with regard to particular facts; the Court below seem to have thought the obstruction was trifling. Wilkes’s case has been followed by the Supreme Court of Massachusetts; Stetson v. Faxon, 19 Pick. 47; cp. Benjamin v. Storr, L. R. 9 C. P. 400.

Winterbottom v. Lord Derby, L. R. 2 Ex. 316.

Satku Valad Kadir Sausare v. Ibráhim Aga Valad Mirzá Agá, I. L. R. 2 Bom. 457, where English authorities are well collected. S. P. Gehanáji bin Kes Patil v. Ganpati bin Lakshuman, ibid. at p. 469; Karim Buksh v. Budha, 1 All. 249. Jina Ranchhod v. Jodhá Ghellá, 1 Bom. H. C. 1, appears to be imperfectly reported.

It will not escape observation that to some extent the definition of nuisance overlaps that of trespass (e. g., the overhanging eaves in Illust. 2 seem to constitute a continuing trespass [though not the branches: Lemmon v. Webb, ’94, 3 Ch. 1]). This is so in England and all common law jurisdictions, and it does not produce any difficulty or inconvenience that I know of.

See Walter v. Selfe, 4 De G. & Sm. 315; Salvin v. North Brancepeth Coal Co., L. R. 9 Ch. 705.

St. Helen’s Smelting Co. v. Tipping, 11 H. L. C. 642.

F. N. B. 184 d; Penruddock’s case, 5 Co. Rep. 100 b; Fay v. Prentice, 1 C. B. 829; Earl of Lonsdale v. Nelson, 2 B. & C. at p. 311; cp. Harrop v. Hirst, L. R. 4 Ex. 43, an example which must be adapted for Indian use, if at all, only on the spot, and with the light of local knowledge.

Aldred’s case, 9 Co. Rep. 59 a; Walter v. Selfe, note (b); and other modern brick-burning cases, e.g. Bamford v. Turnley, 3 B. & S. 66.

I do not know whether bellringing is common in India. Local knowledge may suggest something more probable and apt. Soltau v. De Held, 2 Sim. N. S. 133. This seems to cover a fortiori the cases of noise and vibration of machinery, letting off fireworks, &c.

In other words, the old doctrine that a man who “comes to a nuisance” cannot complain (Blackst. ii. 403) is not now law; St. Helen’s Smelting Co. v. Tipping, and other recent authorities.

Qu. Can prescriptive rights be acquired in British India otherwise than under one of these Acts? If so, the saving words should be made to cover them.

Sturges v. Bridgman, 11 Ch. D. 852.

Wood v. Waud, 3 Ex. 748; Crossley v. Lightowler, L. R. 2 Ch. 478.

Mott v. Shoolbred, L. R. 20 Eq. 22.

White v. Jameson, L. R. 18 Eq. 303.

Rosewell v. Prior, 12 Mod. 635; Todd v. Flight, 9 C. B. N. S. 377; Nelson v. Liverpool Brewery Co., 2 C. P. D. 311, and cases there cited. See, too, Gandy v. Jubber (undelivered judgment of Ex. Ch.), 9 B. & S. 15.

It seems the better opinion that the lessor’s knowing of the nuisance at the time of letting does not make any difference, unless he actually authorizes its continuance; Pretty v. Bickmore, L. R. 8 C. P. 401; Gwinnell v. Eamer, L. R. 10 C. P. 658.

Rich v. Basterfield, 4 C. B. 783.

As this point has been raised and decided (Raj Koomar Singh v. Sahebzada Roy, I. L. R. 3 Cal. 20), it may be worth while to deal with it in the Bill. I do not find that it is noticed in the last revision of the Civil Procedure Code.

It is not easy to formulate, as a proposition of law, what amounts or does not amount to “evidence of negligence.” Still, as there is a question of law, some criterion must be assumed to exist, and the case of Hammack v. White (11 C. B. N. S. 588, also in Bigelow, L. C. on Torts) contains something like an authentic statement of it, which is here followed. The cases to which it seems not to apply (such as Byrne v. Boadle, 2 H. & C. 722, and in Bigelow) are really cases of special liability where the burden of proof is on the defendant.

M‘Cully v. Clark, ap. Bigelow, L. C. 559.

Smith v. L. & S. W. R. Co., L. R. 5 C. P. 98, 6 C. P. 14, a case in which both Courts (C. P. and Ex. Ch.) held with some difficulty that there was evidence of negligence; cf. the later Indian case of Halford v. E. I. R. Co., 14 B. L. R. 1, O. C., where the decision seems to be one of fact on conflicting evidence.

Scott v. London Dock Co., 3 H. & C. 596, 34 L. J. Ex. 220.

Cotton v. Wood, 8 C. B. N. S. 568, 29 L. J. C. P. 333. Probably this kind of case is the origin of the statement sometimes met with (which as a general proposition is evidently wrong in principle) that it lies on the plaintiff in the first instance not only to prove negligence on the defendant’s part, but to disprove contributory negligence on his own. [See now Wakelin v. L. & S. W. R. Co., 12 App. Ca. 41, 47.]

Hammack v. White, 11 C. B. N. S. 588, and in Bigelow.

Illust. 7 is the concrete statement of sub-clause 3. I know no case exactly in point, but I think this must be the law.

This clause was drafted before the decisions of the C. A. and the House of Lords in The Bernina, 12 P. D. 58; Mills v. Armstrong, 13 App. Ca. 1. The words “or of a third person,” which were inserted with an expression of doubt, would now have to be omitted, and the law as now laid down should be more explicitly declared.

Tuff v. Warman, 2 C. B. N. S. 740, in Ex. Ch. 5 C. B. N. S. 573, 27 L. J. C. P. 322.

Davies v. Mann, 10 M. & W. 546. The animal in that case was a donkey.

Butterfield v. Forrester, 13 East 60 [10 R. R. 433.]

Armstrong v. L. & Y. R. Co., L. R. 10 Ex. 47, where the decision seems to be put on the ground of proximate cause. [But see now Mills v. Armstrong, 13 App. Ca. 1. The true conclusion in the case put seems to be that M. has a right of action against both companies.]

Waite v. N. E. R. Co., Ex. Ch. E. B. & E. 719, 28 L. J. Q. B. 258 (1859). Here the proximate cause of the harm is the negligence of the child’s custodian, not of the other party, who is entitled to assume that the custodian will use ordinary care for both the child’s safety and his own.

There are many American decisions on points of this kind, some one way and some the other; O. W. Holmes, the Common Law, 128, Bigelow L. C. 729. Putting aside the [now overruled] doctrine of “imputed negligence” as irrational, it would seem that the real question is whether the defendant should have known that he had to do with a helpless or comparatively helpless person, to whom therefore more than ordinary care was due (clause 62, sub-clause 3, above).

The Bywell Castle, 4 P. Div. 219; other authorities collected in Marsden on Collisions at Sea, pp. 6, 7. The rule is of importance in maritime law, and may be of importance in other cases; cf. Wanless v. N. E. R. Co., L. R. 7 H. L. 12; cf. 3 App. Ca. 1193.

In the summer of 1883 several passengers, including two English judges, were in a precisely analogous situation in a runaway car on the Northern Pacific Railway. Ultimately those who did not jump out came to less harm than those who did. But surely it could not be maintained that it was contributory negligence to jump out under the circumstances. In some cases it may be prudent even to run a very great risk, as to jump from the roof or top windows of a house on fire.

Illustration 3 is Clayards v. Dethick, 12 Q. B. 439. Clayards v. Dethick is disapproved by Lord Bramwell; see appendix to Horace Smith on Negligence, 2nd ed. Mr. Horace Smith thinks Clayards v. Dethick is right notwithstanding, and I agree with him.

The rule in Rylands v. Fletcher, L. R. 3 H. L. 330, that a man keeps dangerous things at his peril (except as regards vis major, Nichols v. Marsland, 2 Ex. D. 1, &c.), seems needlessly harsh. The extent of the exceptions made in later decisions shows that it is accepted with reluctance. It has not been generally followed in the United States, and in British India one important application of it has been disallowed as unsuited to the facts and conditions of Indian land tenure; Madras R. Co. v. Zemindar of Carvatenagaram, L. R. 1 Ind. App. 364. Nor is there anything answering to it in Roman law. It therefore seems to require modification in some such way as here proposed. This will of course not affect liability for nuisance. In a case short of that, the requirement of exact diligence is, one would think, enough.

As to poison, fire, explosives, and dangerous animals, cf. the Penal Code, ss. 284, 285, 286, 289.

See Vaughan v. Taff Vale R. Co., 5 H. & N. 679; Fremantle v. L. & N. W. R. Co., 10 C. B. N. S. 89. Such a case as Jones v. Festiniog R. Co., L. R. 3 Q. B. 733, where the use of locomotive engines not being especially authorized, it was held that the company used them at its peril, could, I suppose, hardly occur in British India. If it did, and if the clause now submitted had become law, the decision would be the other way, unless Act IV. of 1879, s. 4, implies that using locomotives without the sanction of the Governor General in Council is absolutely unlawful. As to the use of fire for agricultural purposes, such as burning weeds, see Turbervil v. Stamp, 1 Salk. 13, and 1 Ld. Raym.; and D. 9. 2, ad 1. Aquil. 30, § 3.

Madras R. Co. v. Zamíndár of Carvatenagaram, L. R. 1 Ind. App. 364.

Lyell v. Ganga Dai, I. L. R. 1 All. 60; cp. Farrant v. Barnes, 11 C. B. N. S. 553. It is for the plaintiff to prove want of notice; see Williams v. East India Co., 3 East at p. 199, where a somewhat artificial reason is given. It seems enough to say that the want of notice is an essential part of the plaintiff’s case; the duty is, not to abstain from sending dangerous goods, but to give sufficient warning if you do. As to the non-liability of a person innocently dealing with dangerous things of whose true character he has not notice, see The Nitro-Glycerine Case, Sup. Ct. U. S., 15 Wall. 525.

Dixon v. Bell, 5 M. & S. 198, and Bigelow L. C. 568, which goes even further.

Thomas v. Winchester, 6 N. Y. 397, Bigelow L. C. 602. See this case discussed p. 456, above.

See Foulkes v. Metrop. Dist. R. Co., 5 C. P. D. 157, especially the judgment of Thesiger L. J. The words now inserted are suggested by Elliott v. Hall, 15 Q. B. D. 315.

Most of the previous authorities are collected and discussed in Indermaur v. Dames, L. R. 1 C. P. 274 (in Ex. Ch. 2 C. P. 311).

English common law authorities incline to the view that a servant injured by the defective state of the place where he is employed can hold the master liable only for personal negligence. I am not sure that even the Employers’ Liability Act puts him on the same footing as a customer, but I think he ought to be so.

Chapman v. Rothwell, E. B. & E. 168, 27 L. J. Q. B. 315 (treated by the Court as a very plain case).

Barnes v. Ward, 9 C. B. 392, 19 L. J. C. P. 195.

Corby v. Hill, 4 C. B. N. S. 556, 27 L. J. C. P. 318.

Smith v. London & St. Katharine Docks Co., L. R. 3 C. P. 326. Cf. Francis v. Cockrell, L. R. 5 Q. B. 501 (Ex. Ch.), where, however, the duty was also put on the ground of contract; Heaven v. Pender, 11 Q. B. Div. 503.

Kearney v. L. B. & S. C. R. Co., Ex. Ch. L. R. 6 Q. B. 759; cp. Byrne v. Boadle, 2 H. & C. 722, 33 L. J. Ex. 13, and in Bigelow L. C., where it is said that “it is the duty of persons who keep barrels in a warehouse to take care that they do not roll out,” and there was no positive evidence that the barrel was being handled by servants of the defendant, or being handled carelessly.

Tarry v. Ashton, 1 Q. B. D. 314.

It is rather difficult to say in what respect, if any, a “bare licensee” is better off than a trespasser, except that he might, once knowing the occupier to allow his presence, be entitled to regard as “invitation” this or that indication which could not be presumed to be meant for trespassers. And the position of a visitor or guest (in the ordinary sense, not a paying guest at an inn) is not quite clear. It does not seem needful, however, to enter on these questions. The case usually cited for the relation of a host and (gratuitous) guest is Southcote v. Stanley, 1 H. & N. 247, 25 L. J. Ex. 339, which, however, is not altogether satisfactory. The line of reasoning seems to be that a guest voluntarily puts himself in the same plight as a member of the family, and as such must take things as he finds them. It is also attempted to bring this under the same principle as the doctrine of “common employment,” then in great favour with the Court of Exchequer. [See p. 471 above.]

Hounsell v. Smyth, 7 C. B. N. S. 731, 29 L. J. C. P. 203.

Bolch v. Smith, 7 H. & N. 736, 31 L. J. Ex. 201, a rather strong case, but for that very reason a good illustration.

Moffatt v. Bateman, L. R. 3 P. C. 115.

These clauses on damages are a mere sketch: but it may be a question whether anything more elaborate is desirable.

Whitman v. Kershaw, 16 Q. B. Div. 613.

Emblen v. Myers, 6 H. & N. 54, 30 L. J. Ex. 71.